text:
    GRAY NORET v. STATE.
    No. A-3154.
    Opinion Filed April 5, 1919.
    (179 Pac. 617.)
    APPEAL AND ERROR — Pardon Pending Determination of Appeal — Dismissal. When the pardoning power extends clemency and the same is accepted pending the determination of an appeal, the appeal will be dismissed.

      Appeal from County Court, Comanche County; R. J. Ray, Judge.

    Gray Noret was convicted of a violation of the prohibitory liquor law, and he appeals.
    Appeal dismissed.

      J. F. Thomas, for plaintiff in error.

      W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Gray Noret, was convicted in the county court of Comanche county on a charge of transporting intoxicating liquors, and was sentenced to pay a fine of ?100 and be confined for 30 days in the county jail. From which judgment he appealed to this court. - 1

Counsel for plaintiff in error has filed a motion to dismiss the appeal on the ground that a parole has been granted by the Governor and accepted by plaintiff in error.

When a parole is granted and accepted and notice of this fact is brought to the attention of this court pending the appeal, the appeal will be dismissed. Therefore it is considered, that the appeal herein be, and the same is hereby dismissed, and the cause remanded to the county court of Comanche county.

ARMSTRONG and MATSON, JJ„ concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    JESS ROBERTS et al. v. STATE.
    No. A-3201.
    Opinion Filed April 5, 1919.
    (179 Pac. 617.)
    INTOXICATING LIQUORS — Sufficiency of Evidence — Transporting In- ■ toxicating Liquors. The evidence upon a trial for unlawfully conveying and transporting intoxicating liquors examined, and heM to be sufficient to sustain thé verdict, and that no material error was committed on the trial.

      Appeal from Superior Court, Muskogee County; H. C. Thurman, Judge. -

    Jess Roberts and George Culbertson were convicted of a violation of the prohibitory liquor law, and they appeal.
    Affirmed.

      P. A. Gavin, for plaintiffs in error.

      W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiffs in error, Jess Roberts and •George Culbertson, were jointly tried and convicted on an information charging that they did convey and transport seven five-gallon kegs of whisky from a point unknown to a point south of the Missouri, Oklahoma & Gulf Railway bridge, about four miles north of the city of Muskogee, and in accordance with the verdict of the jury they were each sentenced to serve 60 days in the county jail and to pay a fine of $200 each. From the judgments rendered on the verdicts, they appealed.

No brief had been filed, and no appearance made for plaintiffs in error when the case was called for final submission. An examination of the record shows that the evidence is sufficient to sustain the judgments, and that no material error was committed on the trial. The judgments of the lower court are affirmed.

ARMSTRONG and MATSON, JJ., concur.


author: ARMSTRONG, J.

text:
    W. T. HENSLEY et al. v. STATE.
    No. A-2731.
    Opinion Filed April 8, 1919.
    (179 Pac. 788.)
    1. INDICTMENT AND INFORMATION — Grand Larceny — Preliminary Examinations. H. & C., prior to the act making the stealing of fowls a felony became effective, were complained against for stealing hens of the value of $10, and upon their examining trial it was adjudged that the evidence disclosed the guilt of the defendants as charged in the complaint and they were held to answer the offense charged in the said complaint, and transcript of the committing magistrate filed in the district court certified that the defendants were held to answer for the offense charged in the complaint. An information was filed in the ease charging grand larceny, alleging that the value of the hens was $22 and, prior to the defendants entering a plea to the merits of the case, they filed a motion to quash the information because they had not had a preliminary examination for a felony, and had not waived such preliminary examination, which motion the trial court overruled. Held, that the defendants' preliminary examination or commitment was for a misdemeanor, that no preliminary examination or commitment for a felony was had or waived, and therefore the trial court was without jurisdiction and should have quashed the information for. grand larceny.
    2. INDICTMENT AND INFORMATION — Want of Preliminary Examination — Motion to Quash — Plea of Abatement. The proper procedure to attack an information for a felony, on the ground that the defendant had not had a preliminary examination and had not waived the same, is by motion to quash the information, to set aside the information, or by a plea in abatement, and such motion must be made or pleaded prior to the defendants' pleading to the merits of the case, or suc-h motion of plea comes too late.

      Appeal from District Court, Cleveland County; F. B. Swank, Judge.

    W. T. Hensley and A. R. Croxton were convicted of grand larceny, and they appeal.
    Reversed and remanded.

      Charles H. Ruth, for plaintiffs in error.
    S'. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiffs in error, W. T. Hensley and A. R. Croxton, hereinafter designated defendants,* were by information prosecuted for the offense of grand larceny, committed, and each sentenced to be imprisoned in the state penitentiary at McAlester for a term of one year and a day, and to pay the costs of the prosecution. To reverse the judgment rendered, they jointly prosecute this appeal.

•: The complaint in this case charges the larceny of hens of the value of $10, a misdemeanor. The act of the Legislature approved February 27, 1915, declaring stealing domestic fowls in the nighttime and from the messuage or the prémises on which the dwelling house is situated a felony, did not become the law until 90 days after the 23d day of March, 1915, the day the Legislature enacting the law adjourned sine die. Said act, not carrying the emergency clause, had no field of operation in this case, the alleged offense having occurred prior to the act becoming a law.

The information in this case sufficiently jointly charges the defendants with the offense of grand larceny, stealing hens of the value of $22.

Before entering their pleas of not guilty, the defendants made the following motion:

“Comes now the defendants and each of them and moves the court to quash the warrant and information herein filed, for the reason that no preliminary trial was had. upon the charge laid in the information, and said preliminary trial was .not waived.”

'""he court overruled the motion, and the defendants ex-’ eepted.

The complaint in this case is as follows;

“State of Oklahoma, Cleveland County — ss.:
“Complaint — In Justice Court.
“J. D. «Grigsby, of lawful age being duly sworn, on oath says, that Richard Roe and John Doe, Whose true names are unknown, on the-day of May, 1915, in the county of Cleveland, in the state of Oklahoma, then and there being did then and there unlawfully, willfully, maliciously and feloniously, fraudulently and stealthily take and steal and carry away from out of the possession of one W. O. Jack, chickens of the value of $10, the corporeal personal property of the said W. O. Jack, said chickens being taken by them, the said Richard Roe and John Doe, whose true names are unknown without the knowledge and consent of him, the said W. O. Jack, and with the felonious purpose and intent to convert the said chickens to the use and benefit of them, the said Richard Roe and John Doe, and to deprive the said W. O. Jack of his property therein, contrary to the form- of the statutes in such case made and provided and against the peace and dignity of the state of Oklahoma.
“J. D. GRIGSBY, County Attorney.
“Subscribed and sworn to before me this 21st clay of May, 1915.
“Joe Daniels, Justice of the Peace:
“No.-

The transcript of the preliminary trial given the defendants, filed in the district court in this case, is as follows :

“In the Justice Court Before Joe Daniels, Justice of the Peace, in and for the City of Norman, Cleveland County, State of Oklahoma.
“State of Oklahoma, Plaintiff, v. W. T. Hensley and A. R. Croxton, Defendants.
“Transcript of Preliminary Trial.
“Now on this 25th day of May, 1915, at the hour of 10 o’clock a. m., the above-entitled cause came on for a hearing, the state of Oklahoma appearing by J. D. Origsby. county attorney of Cleveland county, state of Oklahoma, and defendants appearing in person and by their attorney, John Jennings, and each side announced ready for trial, the witnesses both for the state and for the defendants were called and sworn, and the witnesses for the state having been placed upon the stand testified, after which the state rested, and the defendants failing to produce any testimony, the attorneys for the state and defendants waiving any argument, submitted the matter to the court for decision. And the court having heard the testimony of witnesses for the state and being fully advised in the premises, finds from the testimony produced that the offense as alleged in the complaint has been committed and further finds that there is probable grounds for believing that the defendants committed the offense as charged in the .complaint. It is therefore considered, ordered, and adjudged by the court that the said defendants be held to await the action of the district court of Cleveland county, state of Oklahoma, and to answer in said district court an information, and their bonds are fixed at the sum of $500.00 each, and upon their failure to give such bonds, that they be committed to the county jail of Cleveland county, state of Oklahoma.
“Joe Daniels, Justice of the Peace.
“State of Oklahoma, County of Cleveland-: — ss:
“I, Joe Daniels, justice of the peace in and for the city of Norman, Cleveland county, state of Oklahoma, do hereby certify that the above and foregoing is a true and correct transcript of the proceedings had before me in the preliminary trial of the above-named defendants, as the same appears of record in my office.
“Joe Daniels, Justice of the Peace.
“Filed in the district court, Cleveland county, Oklahoma, May 26, 1915.
“Jim Stognee, Clerk.”

The complaint in this case charges the larceny of hens of the value of $10, a misdemeanor. The act of the Legislature, approved February 27, 1915 (Laws .1915, c. 55), declaring stealing domestic fowls in the nighttime and from the messuage or premises upon which the dwelling house of another is situated, a felony, did not become the law until 90 days after the 23d day of March, 1915, the day the Legislature enacting the law adjourned sine die. Said act, not carrying an emergency clause, had no field of operation in this case, the alleged offense having occurred prior to such act becoming a law.

The transcript of the committing magistrate, filed in the district court in this case, shows that he “finds from the testimony produced that the offense alleged in the information has been committed as charged therein,”, and further finds that “there is probable ground for believing that the defendants committed the offense as charged in the complaint,” and adjudged “that the defendants be held to await the action of the district court of Cleveland county.”

It therefore appears from the transcript of the committing magistrate filed in this case that the defendants were held to answer ’for a misdemeanor, and the information in this case charges felony, for which the defendants had not had a preliminary examination.

The motion to quash the information because no preliminary examination, for a felony had been had or waived. was the proper procedure to attack the validity of the in-. formation.-

“Whether an examination has or has not been held is not a question of pleading, but a question of fact, to be raised by the defendant or not at his option, by a motion to quash, supported by affidavits.” (Ketch Canard v. State, 2 Okla. Cr. 505, 103 Pac. 737, 139 Am. St. Rep. 949).

Of course, where, as in the instant case, the record in a felony case shows that a preliminary trial for a felony has not been had or waived, it is not necessary to attach affidavits in support of a motion to quash the information on such ground.

Where the defendant relies on want of preliminary, he should raise the question by motion to quash or plea in abatement, before pleading to the merits. Robbins v. State, 12 Okla. Cr. 294, 155 Pac. 491.

The motion to quash the information in the instant case was made by the defendants prior to their entering a plea to the merits of the case, and was therefore timely made. Gourley v. State, 8 Okla. Cr. 598, 129 Pac. 648.

Section 17, art. 2, of the Constitution of this state, provides:

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

In J. L. Norwood v. State, 14 Okla. Cr. 637, 169 Pac. 656, it is held :

“That under the constitutional provision the precedent fact that a preliminary examination has been had or waived constitutes a jurisdictional basis for a prosecution on information in the district court. It is the • fact there was a preliminary examination, or a waiver thereof, * * * by the examining magistrate, that a felony has, been committed, and that there is probable cause to believe that the defendant is guilty thereof, that confers jurisdiction on the district court and authorizes the county attorney to file an information in said court charging the crime committed according to the facts in evidence on such examination ; or for the offense charged in the preliminary information when such examination has been waived by the defendant.”

The record disloses that the preliminary information in this case charged larceny of hens of the value of $10, and that the .committing magistrate adjudged that the evidence disclosed the guilt of the defendants as charged in the preliminary information, and held the defendants to the district court to answer accordingly; and hence the record discloses that the preliminary trial was for, and the defendants held to answer, a misdemeanor, and the county attorney was without authority to file in the district court the felony information filed in this case, and the trial court committed reversible error in overruling the motion to quash the said information.

As the fundamental error pointed out necessitates a reversal of the judgment rendered in this case, we deem it unnecessary to consider the several other errors assigned.

The judgment of the trial court is reversed, and the cause remanded.

DOYLE, P. J„ and MATSON, J„ concur.


text:
    HOMER RICHARDS v. STATE.
    No. A-2965.
    Opinion Filed April 8, 1919.
    (179 Pac. 777.)
    1. INDICTMENT AND INFORMATION — Statutory Crime — Sufficiency. Where the information charges a statutory crime, it is sufficient if it charges the offense substantially in the language of the statute.
    2. INDICTMENT AND INFORMATION — Duplicity—Waiver of Effect. Alleged duplicity in an information or indictment constitutes grounds for demurrer thereto,' but if the information or indictment is not demurred to upon this ground in the trial court, the objection that the indictment or information is duplici--tous Is waived in this court.

      8. APPEAL AND ERROR — Instructions—Exceptions. Instructions of the court to the jury which are not excepted to will not be reviewed unless fundamentally erroneous.
    4. APPEAL AND ERROR — Discretion—Motion for New Trial. Before overruling a motion for a new trial can be held to be reversible error, it must affirmatively appear that the court in overruling such motion abused its discretion.
    5. CONTINUANCE — Discretion of Trial Court. The overruling of a motion for a continuance to secure witnesses to impeach the veracity of a defendant jointly indicted, named as a witness by tlie state, was not an abuse of discretion, where defendant had moved that such other defendant be tried first because defendant desired to use him as a witness.
    6. CONTINUANCE — Withdrawal of Attorney. That a former attorney has withdrawn from the defense and that the attorney thereafter representing defendant has no time to prepare for trial is not ground for a continuance.
    7. APPEAL AND ERROR — Review—Motion for Continuance — Discretion of Court. An application for a continuance is addressed to the trial court’s sound discretion, and, unless an abuse of such discretion is shown, a judgment will not bo reversed on appeal.
    8. SUFFICIENCY OF EVIDENCE — Error. The entire record in this case carefully examined, found free from error, and that the verdict returned, and the judgment rendered thereon, are supported by the evidence beyond a reasonable doubt.

      Appeal from. District Court, Washita County; James B. Cullison, Assigned Judge.

    Homer Richards was convicted of burglary with explosives, and he appeals.
    Affirmed.

      Smith, Jones & Smith, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Homer Richards, together with L. F. Do Bendo and W. H. Wag-goner, were jointly informed against for the offense of burglary with explosives, a severance had, and said Homer Richards, hereinafter designated asm defendant, convicted and sentenced to imprisonment in the penitentiaiy of this state for a term of twenty-five years and to pay the costs of this prosecution. To reverse the judgment rendered he prosecutes this appeal:

The charging part of the information is as follows:

“Now comes A. R. Ash, the duly qualified and acting county attorney in and for Washita county, state of Oklahoma, and gives the district court of Washita county, state of Oklahoma, to know and be informed' that L. F. Do Bendo, W. H. Waggoner, and Homer Richards did in Washita county, state of Oklahoma, on or about the 6th day of July in the year of Our Lord one thousand nine hundred sixteen and anterior to the presentment hereof, commit the crime of burglary with explosives, in the manner and form as follows, to wit: Did then and there unlawfully, willfully, and feloniously enter a certain banking building in the town of Korn, Okla., said building being then and there owned, controlled, occupied, and used by the Korn State Bank, a corporation, of Korn, Okla., then and there unlawfully, willfully, and feloniously by the use of and by the aid of dynamite,, nitroglycerine, gunpowder, and other explosives, the exact name and nature of which are to the county attorney unknown, attempt to open a certain safe and receptacle then and there kept in the said banking building by the said Korn State Bank, and then and there used by the said Korn State Bank for the secure Keeping of money and other valuable property, without the consent of the said Korn State Bank, and with the felonious intent of the said L. F. Do Bendo, W. H. Waggoner, and Homer Richards then and there to crack and open said safe by the use of and by the aid of said explosives contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

1 Thereupon the defendant made a motion for a severance, which was granted, and the state elected to try the defendant Richards first. The defendant then moved the court that the defendant L. F. Do Bendo be tried first, as “defendant desired to use him as a witness after his final trial,” which motion the court overruled, and the defendant excepted.

The defendant then moved the court to continue the case because an attorney formerly employed by all the defendants had withdrawn from the case, urging that the defendant was thereby surprised and unprepared for trial, and that he required time to summon witnesses who would testify that the said L. F. Do Bendo was known in the community in which he resided as a man of bad character, and known as a man wanting in truth and veracity. The court overruled the motion for a continuance, and the defendant excepted.

The defendant demurred to the information “because it does not state facts sufficient to constitute a crime under the laws of the state of Oklahoma.” The court overruled the demurrer, and the defendant excepted.

The material grounds alleged for a continuance were to secure witnesses to impeach the veracity of the defendant Do Bendo, who had been named as a witness for the state, and that the defendant’s former attorney had withdrawn from the case, and that the attorney then representing defendant had not had time to prepare for trial. When it is remembered that immediately before the motion for a continuance was interposed the defendant moved that Do. Bendo be tried first, because the defendant in the instant case desired to use the defendant Do Bendo as a witness, it cannot be said that the court abused its discretion in overruling the motion for a continuance on the ground of giving the defendant an opportunity to secure witnesses to impeach the defendant Do Bendo.

The ground that a former attorney had withdrawn from the defense of the defendant, and the attorney then representing the defendant had not had time to prepare for trial, has been expressly held by this court as not a ground for continuance.

An application for a continuance is addressed to the sound discretion of the court, and unless an abuse of the discretion of the court is shown, a judgment will not be reversed on appeal. Davis v. State, 10 Okla. Cr. 169, 135 Pac. 438; Tucker v. State, 9 Okla. Cr. 587, 132 Pac. 825; Reed v. State, 14 Okla. Cr. 651, 174 Pac. 800.

“An application for a continuance, for the term, on the ground of the absence of leading counsel, is properly denied, where the defendant is duly represented by his other counsel.” (Oscar J. Payne v. State, 10 Okla. Cr. 314, 136 Pac. 201.)

It follows that the withdrawal of his former attorney, the defendant being represented by other counsel, was not a ground for a continuance.

The defendant assigns as error the rejection and admission of illegal evidence, but fails to point out of what the same consists.

It is not assigned as error, or even in any manner questioned, that the verdict of the jury and the judgment rendered thereon are not supported by the evidence, and therefore it is unnecessary to recite the voluminous evidence in the case.

After conviction defendant moved for a new trial and for arrest of judgment, each of which, motions was overruled, and the defendant separately excepted to said acilon of the court.

The law upon which the information is based is Session Laws 1913, c. 7, p. 7, which reads as follows:

“Section i. Any person who enters any building,railway car, vehicle, or structure and there opens or attempts to open any vault, safe, or receptacle used or kept for the secure keeping of money, securities, books of accounts, or other valuable property, papers or documents,. without the consent of the owner, by the use or the aid of dynamite, nitroglycerine, gunpowder, or other explosive, or who enters any such building, railway car, vehicle; or structure in which is.kept any vault, safe, or other receptacle for the safe-keeping of money or other valuable property, papers, books or documents, with the intent and without the consent of the owner, to open or crack such vault, safe or receptacle by the aid or use of any explosive, shall in either ease be deemed guilty of felony, and upon conviction shall be punished by imprisonment in the state penitentiary for a term of not less than twenty (20) nor more than fifty (50) years.”

It will be noted that the information charges the offense in almost the identical language of the statute, and this has been repeatedly held by this court as sufficient. If, however, the information is duplicitous, which we do not hold, the defendant not having set up duplicity as a ground for demurrer, the same is waived.

The court did not err in overruling the demurrer to the information.

The defendant in his brief does not point out, and we are unable to see, that any evidence was rejected or admitted which can be regarded as prejudicial error. Warren v. State, 6 Okla. Cr. 2, 115 Pac. 812, 34 L. R. A. (N. S.) 1121; Stouse v. State, 6 Okla. Cr. 415, 119 Pac. 271; White v. State, 4 Okla. Cr. 144, 111 Pac. 1010.

It is contended by the defendant that sections 1 to 9, inclusive, of the instructions given the jury by the trial court are erroneous, but the record fails to disclose that any objections were made or exceptions saved to any part of said instructions, and fails to show any request for instructions by the defendant. After a careful examination of the instructions, we find no fundamental errors therein.

“Where objections are not made and exceptions are not.saved, thisc court looks no further than to see if fundamental error has occurred.” (Ford v. State, 5 Okla. Cr. 240, 114 Pac. 278.)

The motion for a new trial and the motion in arrest of judgment were eách without merit and properly overruled.

The defendant, being shown by the evidence, even if the entire evidence of his codefendant Do Bendo be eliminated, guilty as charged in the information in this case beyond a reasonable doubt, having had a fair and impartial trial, and an appeal to this court at the expense of the county in which the crime was committed, had certainly no ground to complain that he has not had thrown around him every protection guaranteed by the Constitution and laws of this state.

Finding the record free from prejudicial error,'the judgment of the trial court is affirmed.

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


text:
    A. R. BARBER et al. v. STATE.
    No. A-2877.
    Opinion Filed April 8, 1919.
    (179 Pac. 790.)
    1. LEWDNESS — “Living- in Open and Notorious Adultery” — Of fense. To ■ constitute "living in open and notorious adultery” nn- . der the statute, there must he something more, than occasional illicit intercourse indulged in; the parties must reside together publicly in the face of society, as if conjugal relations existed he- , • tw?en them, and their so living must become generally known in the community in which they live.

      2. SAME — Sufficiency of Evidence. The evidence in this case carefully considered, and found insufficient to sustain the verdict, and the judgment therepn rendered.

      Appeal from District Court, Jefferson County; Cham Jones, Judge.

    A. R. Barber and Effie Bailey were convicted of open and notorious adultery, and they appeal.
    Appeal abated as to defendant Barber after his death, and reversed and remanded as to Effie Bailey.

      Bridges & Vertrees and Guy Green, for plaintiffs in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiffs in error, A. R. Barber and Effie Bailey, hereinafter referred to as defendants, were indicted for the offense of open and notorious adultery, convicted, and A. R. Barber fined $500, and Effie Bailey fined $25, and defendants jointly adjudged to pay the costs of this prosecution. To reverse the judgment rendered, they prosecute this appeal.

Since this appeal was perfected, this court has been legally informed that A. R. Barber has departed this life, and therefore this appeal is abated as to him.

The charging part of the information in this case is as follows:

“That in said Jefferson county, Oklahoma, on the 25th day of December, 1915, and prior to the finding of this indictment, the said A. R. Barber and Effie Bailey did unlawfully feloniously, and willfully and voluntarily have sexual intercourse with each other, the said A. R. Barber and Efiie Bailey not then and there being husband and wife, and the said A. R. Barber being then and there married to another, and he, the said A. R. Barber, and Effie Bailey, did then and there live together in open and notorious adultery, contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the state.”

The defendants did not demur to the indictment, but objected to. the introduction of any evidence, and of any evidence other than in support of the allegation in the indictment of open and notorious living together, and for the reason. — ■

“that the indictment fails to charge an offense cognizant to the laws of Oklahoma, and that the said indictment is duplicitous, in that it seeks and does charge two separate offenses.”

The court overruled the objections to the introduction of any evidence, and defendants excepted. Upon the conclusion of the opening statement to the jury by the county attorney,- the defendants moved for a dismissal of the case upon the ground—

“that, if the statement was taken as true, it would not make out the crime as charged in the indictment.”

The court overruled the motion to dismiss the case, and the defendants excepted. The defendants moved the court to require the state to elect whether or not it would prosecute for adultery, or for open and notorious adultery. Thereupon the state elected to prosecute for open and notorious adultery.

The undenied evidence in .the case is that the defendant Barber and Mrs.- Barber were married, 35 or 36 years prior to this trial, in Mississippi, and resided there until their removal to this state; that she knew the defendant Effie Bailey; that the said Effie Bailey had continuously resided in the family for 22 or 23 years as a member of the family, and removed with them from Mississippi to this state, and that such removal was first by wagon and then by train, and that, when traveling by wagon, they at times slept in the wagons; that Effie Bailey and defendant Barber, with the oldest child, slept in one wagon, and Mrs. Barber and the other children slept in the other wagon; that Mrs. Barber had not cohabited with Mr. Barber for 17 or 18 years, but that she had continued to live in the same house with him, occupying a different room, until January last; that in the home in which the family lived there were three sleeping rooms; that Mrs. Barber occupied the west room with some of the children, and that Miss Bailey occupied the east room, and until about a year ago the eldest daughter slept in the room with Miss Bailey, and that the defendant Barber occupied the room between the east and west rooms, and there was a door entering into the said east room, and another door between Mrs. Barber’s chamber and the chamber of the defendant Barber; that Mr. Barber was engaged in the mercantile business, and that Miss Bailey was employed in his store; that Miss Bailey continued to live as and was treated as one of the family; that Mrs. Barber notified the defendant Barber about last January that she refused to longer live in the same house with the defendant Barber, and removed from the said home, and had continued to live separate from Mr. Barber since that time; that Mrs. Barber had not caught the defendants in bed together in the last three years; that Mrs. Barber agreed with the defendant Barber that she would live in the house with him and raise the children, of whom there were six; that during the time defendant Bailey had no sweethearts; that no man courted her while she resided as one of the Barber family, and that, immediately on Mrs. Barber’s removal from the home, defendant Barber caused his married cousin and wife and child to become inmates of the home, and that the said parties, together with the defendant Bailey, have since coming to this state, up to the trial of this cause, continuously resided in said home; that Mrs. Barber has not seen anything immoral between the defendants for four or five years; that Mrs. Barber has never heard of any undue familiarity between the defendants at Barber’s store; that she had never seen the defendants misbehave in public in any way, or conduct themselves as husband and wife, or heard the same discussed by any of the people of Terrell, where the family of Barber resided; that Mrs. Barber and the defendant Bailey belonged to the same church, and went to church together until the last two years; that Mr. Barber and Mrs. Barber have not during the last two years had any words but little — “never had a real conversation”; that Barber sometimes drank, and that when he came home in that condition he seemed to be angry, and he and Mrs. Barber had words, but sometimes they did not speak, and at such times he did not say anything about Miss Bailey; that defendant Barber and Miss Bailey would go in the spring and summer together to buy goods; that one of Mrs. Barber’s daughters accompanied them on such trips; that Miss Bailey had charge of the dry goods department of the Barber store, which was the largest store in the town in which they lived; that Miss Bailey knew more about dry goods than Mr. Barber knew; that Mr. and Mrs. Barber had, prior to the coming of Miss Bailey into the home, and after they had been married but a few weeks, separated; that Miss Bailey had nothing to do with such separation, and afterwards Mr. and Mrs. Barber fixed it up and went back together; that defendant Barber, about the time the grand jury which found the indictment in this case was to convene, told his son that he wanted this “stopped”; that he did not want this affair in court, on account of his children, and gave his son $50 and told him to see his mother; that he would pay her way if she would go to Texas and visit a relative; that said son complied with his father’s request; that the purpose of said son, in thus seeing his mother, was to prevent this case from coming up in court, and that defendant Barber told his son that, if there was any fine to pay, he would pay it rather than see the case go on; that the son was a married man, and did not want the case in court; that the defendant Barber, before the grand jury which found the indictment in this case convened, sent another one of his sons to see his wife, and ask if they were going to leave, and to ask them to leave the state, and to tell them, if there was any fine to pay, he would pay it, and this son also complied with his father’s request; that the defendant Barber did not get along with Mrs. Barber in the home , as he did with Miss Bailey; that there was a distinction in the manner of his treatment of them; that it was the common talk of the family that illicit relations were going on between the defendants; that Mrs. Barber told her husband “that all of them could ,not live together any longer,” and that Barber said he could not wind up his business without Miss Bailey; and that with her assistance he could do so by the 1st of January, and, Miss Bailey having gone, Mrs. Barber consented that she might come back, as she (Mrs. Barber) “did not want Barber to lose anything on her account,” and Miss Bailey returned to the home and continued to reside therein as a member of the family.

The evidence was in direct conflict as to Mrs. Barber having caught the defendants in the act of sexual intercourse in Mississippi, and as to the defendant Bailey thereafter in Mississippi having given premature birth to a child, and as to Mrs. Barber having five or six years prior to the trial caught the defendants asleep in bed together in the home of the defendant Barber, and as to the manner in which Miss Bailey was esteemed for chastity in Terrell, the home town of the defendants, and as to what was said by the people of Terrell as to the defendants’ relations toward each other; but there was no direct evidence of the defendants having committed adultery in this state, except the evidence of Mrs. Barber, which was positively denied by Miss Bailey, who testified that she had never had sexual intercourse with Mr. Barber.

There was also uncontradicted evidence that, about two years prior to this trial, one of the sons of Mrs. Barber, who was present at the trial, at the home of the Barbers, “in a cowpen about sundown made indecent proposals to Miss Bailey,” which she at once reported to the family, and immediately thereafter left their home and went to the home of her brother, and that at the instance of the Barber family she dropped her intention of prosecuting the son, and returned to and resumed her position as one of the family; that the said son and Miss Bailey had lived in the home since the said occurrence, and that she had not spoken to him since; that, when Mrs. Barber left the home, Miss Bailey intended leaving also, but that on the advice of her attorney she remained at the home; that the relations of Mrs. Barber and Miss Bailey became estranged after the trouble between her son and Miss Bailey; and that prior to the Barbers’ leaving Mississippi, there was talk of improper relations between the defendants, and that Miss Bailey had suffered an abortion. ■

Upon the conclusion of the evidence the defendants requested the court to direct the jury to return a verdict of acquittal, which the court refused, and the defendants excepted.

There were several instructions given, and one requested instruction refused, to each of which the defendants excepted, which said instructions and the requested instruction refused we deem unnecessary to set out, as we think the pivotal question is as to the sufficiency of the evidence to support the verdict and the judgment rendered.

In State v. Sekrit, 130 Mo. 401, 32 S. W. 977, open and notorious adultery is defined:

“Something more than occasional illicit intercourse, indulged in furtively or sub rosa, but, on the contrary, something aggressive and defiant in its nature, which fears not to flaunt its lecherous colors in the light of day and the frowning face of public reprobation.
“The offense consists in the living together in the manner of husband and wife, without being lawfully married, in the open assumption of the visible forms of matrimony, without the sanction of the nuptial tie, and without incurring those obligations and responsibilities which attach to the married state. Usually the notoriety is as material in making out the offense as is the fact of adultery committed.” R. C. L. sec. 13, vol. 1, p. 638, and the authorities there cited.

In Copeland v. State, 10 Okla. Cr. 1, 133 Pac. 258, it is held:

“To constitute living together in open and notorious adultery, the parties must reside together publicly, in the face of society, as if the conjugal relations existed between them, and their illicit intercourse must be habitual.”

The above definition of open and notorious adultery is quoted and approved in Kitchens v. State, 10 Okla. Cr. 603, 140 Pac. 619, and the definitions given in the Copeland Case and the Kitchens Case are again quoted and approved in Spencer v. State, 14 Okla. Cr. 178, 169 Pac. 270, L. R. A. 1918F, 592.

Applying the law as above cited to the evidence in this case, and remembering that the evidence does not positively show a single act of illicit intercourse, or any act of misconduct on the part of the defendants within three years of the finding of the indictment in this case, we are of the opinion that the evidence is insufficient to support the verdict and judgment rendered, and that the court committed reversible error in refusing to direct the jury to acquit the defendants.

For the errors pointed out, this case is reversed and remanded.

DOYLE, P. J„ and MATSON, J„ .concur.


author: PER CURIAM.

text:
    E. F. GILL v. STATE.
    No. A-3129.
    Opinion Filed April 8, 1919.
    (179 Pac. 618.)
    1. APPEAL AND ERROR — Appeal by Certified Transcript of Record — Errors Considered. On an appeal taken by a certified transcript of the record, this court is at liberty to consider only such alleged errors as are based upon a consideration of the record proper as defined by section 5960, Rev. Laws 1910.
    2. SAME — Remarks of Trial Judge on Overruling Motion for New Trial. A discourse made by the trial judge, expressing his opinion of the case at the time of overruling a motion for new trial and pronouncing judgment and sentence against defendant, does ■ not constitute a part of the transcript of the record proper, and should not be incorporated into the same.
    3. APPEAL AND ERROR — Failure to Appear or File Brief — Af-firmance. Where no appearance is made for plaintiff in error, either by submission of a brief or oral argument, this court will examine the record, and, where no prejudicial error appears, will . affirm the judgment.

      Appeal from District Court, Harper County; W. C. Crow, Judge.

    E. F. Gill was convicted of the crime of adultery, and sentenced to pay a fine of $250 and costs, and he appeals.
    Affirmed.'
   PER CURIAM.

This is an appeal by transcript of the record from a judgment of conviction rendered in the district court of Harper county against the defendant, E. F. Gill, sentencing him to pay a fine of $250 and the costs of the action for the crime of adultery.

The court has examined the record, and finds no prejudicial error sufficient to authorize a reversal of this judgment. There is an attempt to incorporate as part of the transcript a long dissertation delivered by the district judge at the time sentence was pronounced against defendant, and it is claimed in the petition in error that an examination of this discourse evidences in the mind of the district judge a doubt as to the guilt of the defendant. Such a discourse forms no part of the record. Lumpkin v. State, 5 Okla. Cr. 488, 115 Pac. 478.

An appeal by transcript includes only the following papers:

(1) The indictment or information, and a copy of the minutes of the plea or demurrer.

(2) A copy of the minutes of the trial.

(3) The charges given or refused, and the indorse-ments, if any, thereon.

(4) A copy of the judgment. Section 5960, Revised Laws 1910.

It is apparent, therefore, that the attempt to incorporate this discourse by the trial judge into the record in this case must fail, and, for the reason that it forms no part of the record, this court is not at liberty to consider any alleged error based upon it.

Finding no prejudicial error in the record properly constituting the transcript which the clerk is authorized to certify, the judgment must be affirmed, and it is so ordered.


text:
    JAMES CRUTHERS v. STATE.
    No. A-3143.
    Opinion Filed April 8, 1919.
    (179 Pac. 787.)
    INTOXICATING LIQUORS — Unlawful Transportation— Sufficiency of Evidence. In a prosecution for unlawfully conveying intoxicating liquor, the evidence considered, and held sufficient to sustain the conviction, and that no reversible error was committed on the trial.

      Appeal from County Court, Tulsa County; H. L. Standeven, Judge.

    James Cruthers was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.

      D. M. MarUndale for plaintiff in error.

      W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, James Cruthers, and Talmadge Milam were jointly charged with conveying 144 quarts of whisky ,and 96 half pints of whisky from Keystone, to a point five miles southeast of Keystone, Tulsa county. The punishment of Milam was fixed at confinement for 90 days in the county jail and a fine of $300. The punishment of Cruthers was fixed at confinement for six months in the county jail and a fine of $500. From the judgment rendered against plaintiff in error he appealed by filing in this court September. 22, 1917, his petition in error with case-made.

The errors assigned question the sufficiency of the evidence to sustain the conviction.

For the state J. J. Moran testified that he was deputy United States marshal, Eastern district of Oklahoma, that on the morning of the date alleged in the information he, with other officers, was on the road between Tulsa and Keystone, at a place known as Big Hollow, about five miles southeast of Keystone; that they were on top of a hill when they sighted a car about two-thirds the way up the hill; that there is a bench of about BO steps before the second rise of the hill; that as the car approached he called to the defendants to stop, and he had to get out of the road to avoid being run over, and after they passed the officers called to them to stop, and they kept right oh going, and the officers fired several shots, one of which hit a rear tire; it went flat and they stopped; that they found 44 quarts of whisky, and 96 half pints of whisky in the car.

A. B. Chapman testified that he was deputy special officer in the Indian service, and was with Mr. Moran when they stopped the defendants in the automobile; that defendant Cruthers said, “The whisky belonged to some one in Muskogee, and that they had driven from Keystone.” This was all the testimony in the case.

The foregoing statement is sufficient to show the evidence in the case fully warranted the conviction of the plaintiff in error, Cruthers. Finding no material error in the record, the judgment of the trial court is affirmed. Mandate forthwith.

ARMSTRONG and MATSON, JJ„ concur.


text:
    JONES CANTRELL v. STATE.
    No. A-3081.
    Opinion Filed April 8, 1919.
    (179 Pac. 781.)
    INTOXICATING LIQUORS — Unlawful Transportation — Sufficiency of Evidence. In a prosecution for unlawfully conveying intoxicating liquor, tlie evidence considered, and held sufficient to sustain the conviction, and that no reversible error was committed on the trial.

      Appeal from Superior Court, Muskogee County; H. C. Thurman, Judge.

    Jones Cantrell was convicted of a violation of the appeals.
    Affirmed.

      W. J. Crump, M. G. Bailey, and Don M. Crump, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Jones Cantrell, and J. I. Brown were jointly charged with conveying eight gallons of alcohol and 192 pints of whisky from a point unknown in Muskogee county to a place where the Missouri, Oklahoma & Gulf railway crosses the Missouri Kansas & Texas Railway just north of Muskogee, in said county. Oh motion of the county attorney prosecution was dismissed as to the defendant Brown, and upon his trial plaintiff in error, Jones Cantrell, was convicted, and his punishment fixed at six months’ confinement in the county jail and a fine of $100. From the judgment rendered on the verdict he appeals.

The errors assigned question the sufficiency of the evidence to support the verdict. For the state B. G. Hughes, deputy sheriff, testified that he, with J. D. Robbins, also a deputy sheriff, went to the crossing of the M., K. & T. and M., O. & G. Railroads, a short distance north of Muskogee, and concealed themselves at the stockyards near the railroad crossing, and while there, about 4 o’clock in the morning, the train known as the Katy Limited stopped at the crossing, and some one on the platform of the second sleeper dropped off certain packages; that the party had on white canvas slippers.

After the train had passed he saw defendant Cantrell standing there with one Jim Brown, who was also an officer, and defendant was wearing white canvas slippers. Defendant picked up one of the packages and started to where there was a taxicab standing near the track. Witness called after the cabman and told him to stop, and with Robbins he gathered up the packages containing the whisky and alcohol and put them in the taxicab and told the cab driver to haul them with the defendants back to town.

For the defense Jim Brown testified that he was at the railroad crossing 30 or 40 minutes before the train passed, but did not see defendant Jones Cantrell there until after the train passed; that Cantrell picked up one of the packages and then said, “Hello, Jim! what are you doing down here at this time of the morning?” and just then Officers Hughes and Robbins appeared.

Jim Thomas testified that he drove Jim Brown out in his taxicab to said railroad crossing, and was waiting there when the train passed, and after the train passed Jones Cantrell appeared and said to him, “Take me to town,” and as he started Deputy Sheriff Hughes appeared and told witness to stop; that at that time he had been waiting there about 45 minutes.

The defendant Cantrell did not take the stand as a witness. /

The foregoing statement is sufficient to show that the evidence in the case fully warranted thfe verdict of the jury.' Upon a careful consideration of the whole record we are of the opinion that plaintiff in error has no just cause of complaint. The judgment of the superior court of Muskogee county is therefore affirmed.

ARMSTRONG and MATSON, JJ., concur.


text:
    TOM JONES v. STATE.
    No. A-3097.
    Opinion Filed March 11, 1919.
    APPEAL AND ERROK — Review—Technical Questions. Where the undisputed facts establish the guilt of the defendant, technical questions presented by the defendant as grounds for reversal are unnecessary to be considered by this court, under the provisions of section 0005. Rev. Laws 1910.

      Appeal from County Court, Tulsa County; H. L. Standeven, Judge.

    Tom Jones was convicted of unlawfully conveying intoxicating liquors, and sentenced to pay a fine of one hundred fifty dollars, and to serve a term of thirty days imprisonment in the county jail, and appeals.
    Affirmed.

      Fred W. Kopplin, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Attv. Gen., for the State.
   PER CURIAM.

This is an appeal from the county court of Tulsa county, wherein the defendant was convicted of the offense of unlawfully conveying thirty-eight one-half pints of whisky from a point unknown to a point on the stairway leading up to the rooming house situated at 1141,4 East First street, in the city of Tulsa, Tulsa county, Oklahoma. j

An examination of the record shows that the evidence points conclusively to the guilt of the defendant of the offense charged. No defense was interposed in his behalf,, and no exceptions taken to any of the instructions given by the court, which said instructions cover the law of the case, and are not prejudicial to the substantial rights of the defendant.

The technical questions presented in the brief filed in behalf of the defendant are unnecessary to be considered, in view of the undisputed facts establishing the guilt of the defendant. One of the objects of the prohibitory liquor laws of this state is to prevent the unlawful sale of intoxicating liquors, and the defendant admitted to the arresting officer that the thirty-eight half-pints of liquor which he then possessed was intended for the purpose of sale, and at the same time he offered to bribe the arresting officer to permit his escape. The punishment-inflicted by the jury was extremely light in view of the evidence.

The judgment of the county coui*t of Tulsa county-sentencing the defendant to pay a fine of one hundred fifty dollars, and to serve a term of thirty days in the county jail, is affirmed.


text:
    WICK ALEXANDER v. STATE.
    No. A-3212.
    Opinion Filed March 30, 1919.
    1. ABATEMENT OF PROSECUTION — Death of Accused. In a criminal action, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death.
    2. SAME — Death Pending Appeal — Collection of Fine. When- the defendant, after having 'neon convicted, appeals from the judgment imposing a line and imprisonment, and dies pending his appeal from the judgment, the proceedings abate, and the line cannot lie enforced against his estate.

      Appeal from County Court, Ottawa County; N. C. Barry, Judge.

    Wick Alexander, convicted of a violation of the prohibitory liquor law, appeals.
    Ordered that proceedings abate.

      Totoñe, Stuarts & Totoñe, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst.- Atty. Gen’., for the State.
   DOYLE, P. J.

Plaintiff in error was convicted in the county court of Ottawa county of a violation of the prohibitory liquor law and his punishment fixed at a fine of five hundred dollars and confinement for ninety daya in the county jail. To reverse the judgment he appealed by filing in this court on November 30, 1917, a petition in error with case-made.

His counsel of record suggest the death oE the plaintiff in error and have filed a motion to abate the proceeding.

In the case of Boyd v. State, 3 Okla. Cr. 684, 108 Pac. 431, it is said:

“In a criminal action, the sole purpose of the proceeding's is to enforce the criminal law and punish the person found guilty of a violation thereof. The personal representative of the deceased is not responsible for the alleged violation of the law by the defendant during his lifetime, and cannot be required to satisfy the judgment rendered against him. It is only the person adjudged guilty who,, can be punished, and a judgment cannot be enforced when the only subject-matter upon which it can operate has ceased to exist.”

And see United States v. Dunne, 173 Fed. 254, 97 C. ' C. A. 420, 19 Ann. Cas. 1145.

In a criminal action, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death. It is therefore considered, ordered, and adjudged that the proceeding in the above entitled cause, and especially under the judgment* therein rendered, has abated, and that the county court of Ottawa county enter its appropriate order to that effect.

ARMSTRONG and MATSON, JJ., concur.


text:
    JOHN CLIFFORD MORROW v. STATE.
    No. A-3133.
    Opinion Filed April 10, 1919.
    APPEAL AND ERROR — Failure to File Brief — Affirmance. When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.

      Appeal from District Court, Custer County; „ Thomas A. Edwards, Judge.

      Plaintiff in error was convicted of the crime of larceny of domestic fowls, and sentenced to pay a fine of $30 and to serve a term of thirty days in the county jail, and appeals.
    Affirmed.
   PER CURIAM.

This is an appeal from the district court of Custer county, wherein defendant, John Clifford Morrow, was convicted of the crime of larceny of domestic-fowls, and his punishment fixed as above stated.

This cause has been pending on appeal in this court since the 15th day of September, 1917. No brief has been filed .in behalf of plaintiff in error, nor did anyone appear to orally argue the cause at the time same was submitted. The appeal has apparently been abandoned.

Rule IX of this court provides:

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

An examination of the entire record, including the transcript of the evidence, convinces this court of the guilt of defendant and that no prejudicial error occurred during the progress of his trial sufficient to authorize a reversal of this judgment, and the same is affirmed.


text:
    NELLE SHARPE v. STATE.
    No. A-3225.
    Opinion Filed April 12, 1919.
    (170 Pac. 768.)
    1. INTOXICATING LIQUORS — Unlawful Possession — Sentence. The state’s evidence showing that appellant was in possession of 1,200 quart bottles of beer and a large amount of whisky and alcohol stored under her house, and that she had been previously convicted of a violation of the prohibitory liquor laws, warranted the extreme punishment of a fine of $500 and an imprisonment of six months in comity Jail.

      t. APPEAL AND ERROR —Abandonment of Appeal — Affirmance. AAHiere no brief was filed for appellant, and it appeared that the appeal had been abandoned, and where there was no fundamental error in tire record, the Attorney General's motion to affirm the conviction for failure to diligently prosecute the appeal would be sustained.

      Appeal from County Court, Ottcnoa County; ^ N. C. Barry, Judge.

    Nelle Sharpe was convicted of the crime of unlawful possession of intoxicating liquor, and appeals. Judgment
    affirmed.

      S. P. Freeling, Atty Gen., and W. C. Hall, Asst. Atty. Geri., for the State.
   PER CURIAM.

Nelle Sharpe was convicted in the county court of Ottawa county of the crime of unlawful possession of intoxicating liquor, and sentenced to pay a fine of $500 and to serve a term of six months’ imprisonment in the county jail of said county.

This appeal has been pending in this court since the 19th day of December, 1917. On the 5th day of April, j919, the cause was submitted on motion by the Attorney General to affirm the judgment for failure to diligently prosecute the appeal.

No brief has been filed in behalf of plaintiff in error. The evidence on the part of the state shows that the plaintiff in error was in possession of 1,200 quart bottles of beer, and a large amount of whisky and alcohol in addition thereto; that this liquor was stored in a plant under the house that she was occupying in the town of Commerce. The evidence also shows that the defendant had previously been convicted of a violation of the pro-bibitorjr liquor laws. The extreme punishment imposed is clearly warranted by the state’s evidence.

Finding no fundamental error in the record, and it being apparent that the appeal has been abandoned, the motion of the Attorney General to affirm the judgment is sustained.

Judgment affirmed. Mandate forthwith.


text:
    CARL BURTON et al. v. STATE.
    No. A-3114.
    Opinion Filed November 23, 1918.
    Rehearing Denied April 12. 1919.
    (175 Pac. 941.)
    APPEAL AND ERROR — Intoxicating’ Liquors. Where evidence against eaeli defendant was sufficient to support a conviction for unlawful possession of intoxicating liquors, and there was no defense, and the instructions fairly covered the law of the case, and rulings on evidence were favorable to defendants, and no reversible error appeared, their convictions would be affirmed.

      Appeal from County Court, Tulsa County; H. L. Standeven, Judge.

    Carl Burton and J. M. Harris were each convicted of having unlawful possession of intoxicating liquors, and punishment fixed' as to Burton at a fine of S50 and imprisonment in the county jail for 30 days, and as to Harris at a fine of $300 and imprisonment in the county jail for a period of 60 days, and each appeals.
    Judgments affirmed.

      S. P. Freeling, Atty Gen., and R. McMillan, Asst: Atty. Gen., for the State.
   PER CURIAM.

This is an appeal jointly prosecuted by Carl Burton and J. M. Harris from the county court of Tulsa county, wherein the said plaintiffs in error were each convicted of the crime of unlawful possession of intoxicating liquors and their punishment fixed at the respective fines and imprisonments as above stated. No brief has been filed, nor oral argument presented to this court in behalf of either of said plaintiffs in error. The cause was submitted on a motion of the Attorney General to affirm the judgments for failure to diligently prosecute the appeals.

The record has been examined, and the conclusion is reached that the evidence against each defendant is sufficient to support the convictions; no defense being interposed in the trial court. The instructions given cover the law of the case, and are fair and impartial. The rulings of the trial court on the admission of evidence was favorable to the defendants, and no error is apparent that would authorize this court to reverse the judgments of conviction, and the same are, accordingly, affirmed.


author: MATSON, J.

text:
    STATE v. ANTON SHAFER.
    No. A-3213.
    Opinion Filed April 12, 1919.
    INDICTMENT AND INFORMATION — Negativing Exceptions in Statutes. Exceptions to a penal statute which constitute no materia] part of the definition or description of the offense, need not ho negatived in the information or indictment.

      Appeal from Oounty Court, Woods County; Gus Hadwiger, Judge.

    Appeal by the state from judgment sustaining demurrer to information.
    Reversed.

      S. P. Freeling, Atty. Gen., and Sandor J. Vigg, County Attorney, for the State.
   MATSON, J.

On the 25th day of June, 1917, Sandor J. Vigg, as the county attorney of Woods county, Oklahoma, filed in the county court an information against this defendant, the charging part of which is as follows: .

“That anterior to the presentment hereof and on the eighteenth day of the month of June, in the year of our lord one thousand nine hundred and seventeen, at and within the county of Woods, state of Oklahoma, Anton Shafer, then and there being, did then and there willfully and unlawfully own, operate and drive in and on the public streets and highways of the city of Alva, the said county of Woods, state of Oklahoma, a motor vehicle, to wit: R. C. H. touring car, without first having registered said motor vehicle for the year 1917, as required by the laws of the state of Oklahoma, and without first having the department of highways of the state of Oklahoma assign to the said motor vehicle a distinctive number for the year 1917, as required by the laws of the state of Oklahoma, and without first having- conspicuously displayed on the rear end of the said motor vehicle its distinctive number for the year 1917, as required by the laws of the state of Oklahoma.”

The defendant was arrested and brought before the court, and as a plea to said information filed a demurrer upon the following ground:

“For the reason that the same does not state facts sufficient to charge an offense under the laws of the state of Oklahoma.”

On the 22d day of November, 1917,' the cause coming on for hearing upon defendant’s demurrer to the information, the court sustained the demurrer to the information, and the state elected to stand upon the information as filed, the court making no direction to file another information charging the offense, and from the order of the court sustaining said demurrer the state takes an appeal to this court, and said appeal has been properly perfected in the manner provided by law.

The question to be determined, therefore, is a reserved question of law purely, namely: “Do the allegations of fact contained in the foregoing information constitute g, public offense under the laws of this state?” It is to be noted that the defendant did not demur to the information on the ground of duplicity, and any objection which may have been raised to such information upon that ground will not receive consideration in this opinion; the failure to demur on such ground being treated as a waiver of such objection.

The statutes necessary to be considered in connection with the determination of the question involved in this appeal are contained in article 4, chapter 173, Session Laws of Oklahoma 1915; chapter 17, Session Laws 1916; and chapter 195, Session Laws 1917, amendatory of chapter 173,- sufra. The portions of the sections of these statutes necessary to be considered are as follows:

Section 5, article 4, chapter 173, Session Laws 1915, reads in part as follows:

“No person shall operate or drive a motor vehicle on the public highways of this state unless such vehicle shall have the distinctive number assigned to it by -the department of highways conspicuously displayed on the rear of such vehicle, securely fastened so as to prevent the same from swinging. No person shall display on such vehicle at the same time any number assigned to it under any other motor vehicle law. Such number plates shall be of a distinctively different color or shade each year, and there shall be at all times a marked contrast between, .the color of the number plates and that of the numerals or letters thereon. Such number plates shall be of metal at least six inches wide and not less than twelve inches in length, in the upper left hand corner of which there shall be the initials of this state, and to the right of which initials there shall be the distinctive number assigned to the vehicle set forth in numerals four inches long, each stroke of which shall be at least five-eighths of an inch in width; also the year. * * * No number plates shall be used other than those furnished by the department of highways. Any person owning a motor vehicle and failing or refusing to comply with the provisions of this article shall be-deemed guilty of a misdemeanor and upon conviction thereof shall be subject to a fine of not less than fifty dollars nor more than one hundred dollars.”

Section 1, of said article and chapter, provides in part as follows:

“Every owner of a motor vehicle which shall be operated or driven upon the public highways of this state, shall for each motor vehicle owned, except as herein otherwise expressly provided, cause to be filed by mail or otherwise, in the office of the department of highways or with-its agent, a verified application for registration on a blank to. be furnished by said department for that purpose * * *; provided, that motor vehicle shall be construed to mean any automobile, motor truck, motor vehicle, or traction engine.”

Section 1, chapter 195, Session Laws 1917, provides in part as follows:

“Section 2, article 4, chapter 173, Session Laws of Oklahoma 1915, is hereby amended to read as follows:
“Upon the filing of such application -and the payment of the fee provided in this article, the department of highways shall assign to such motor vehicle a distinctive number, and, without expense to the applicant, issue and deliver to the owner a certificate of registration and a number plate, in the form and size provided, and, in the event of less, mutilation, or destruction of a certificate of registration or number plate, the owner of the registered motor vehicle may obtain from the said department a duplicate thereof, upon filing in said office an affidavit showing the fact and the payment of a fee of 50 cents for each duplicate * * *”

Section 7, article 4, chapter 173, Session Laws of Oklahoma 1915, reads:

“The provisions o'f the foregoing section relative to registration and display of registration numbers, shall not apply to a motor vehicle owned by a non-resident of this state, other than a foreign corporation doing business in this state; provided, the owner thereof shall have complied with the provisions of the law of the foreign country, state, territory, or federal district of his residence relative to motor vehicles and the operation thereof, and shall conspicuously display his registration number as required thereby; and provided, that the provisions of this article shall be operative as to a motor vehicle owned by a nonresident of this state, only to the extent that 'under the laws of the foreign country, state, territory, or federal district of his residence, like exemptions and privileges are granted to motor vehicles, duly registered under the laws, owned by residents of this state.”

Section 1, chapter 17, Session Laws 1916, provides in part:

“* * * The provisions hereof with respect to the payment of registration fees shall not apply to motor vehicles owned or controlled by the United States of America, nor by a state, or a city, or a county, or any department thereof, nor to any vehicles using electricity only as a motive power, but motor vehicles propelled by electricity shall be subject to taxation ad valorem, as other property. * * * Providing, that the highway commissioner shall furnish a tag to any person using or controlling motor vehicles owned or used by the United States, state, county, or city upon the payment of a fee of 50 eents for each tag. Provided, that no motor vehicle registered by the United States Government and carrying a tag furnished by the United States Government or any of its departments shall be registered under the provisions of this act.”

As no brief has been filed in behalf of defendant in error, the court is not advised as to the grounds relied upon to sustain the action of the 'trial court in holding the demurrer to the foregoing information to be wel1 taken. Counsel for the state, in his Jbri'ef, says: “The lower court was of the opinion that it was necessary for the information to negative the exceptions contained in section 7, article 4, chapter 173, Session Laws 1915, and in section 1, chapter 17, Session Laws 1916”, and for the reason that the state failed to negative the said exceptions in said information, the lower court sustained a demurrer thereto. The statement that the demurrer to the information was sustained upon the ground that said exceptions were not negatived therein, being unchallenged by the defendant in error, will be treated in this court as the ground upon which the lower court based its action in sustaining the demurrer.

It is the opinion. of this court that the exceptions contained in the above quoted sections of the statute are not necessary to be alleged in an information charging an offense for operating an automobile or other motor vehicle without having had same registered and obtaining a distinctive number therefor, or for driving same upon the public highways without displaying said distinctive number. It is the opinion of this court that said exceptions do not constitute a material part of the offense defined in the statutes, but are matters purely of defense, and therefore unnecessary to be pleaded. Cases in point are: DeGraff v. State, 7 Okla. Cr. 519, 103 Pac. 538; Schave v State, 4 Okla. Cr. 285; Smythe v. State, 2 Okla. Cr. 286, 101 Pac. 611; Penn v. State, 13 Okla. Cr. 367, 164 Pac. 992.

The trial court made no order authorizing or directing a new information to be filed charging the offense. For a discussion of the proposition as to the finality of the trial court’s judgment sustaining the demurrer, to the' information, and the right of the state to further prosecute, in the absence of an express authorization or direction to that effect by the trial court, see opinion in State v. Vaughn, 15 Okla. Cr. 187, 175 Pac. 731.

For the reasons stated the judgment of the county court of Woods county sustaining the demurrer to the foregoing information upon the ground, stated is reversed.

DOYLE, P. J„ and ARMSTRONG, J., concur.


text:
    W. N. HINES et al. v. STATE.
    No. A-3094.
    Opinion Filed April 14, 1919.
    INTOXICATING LIQUORS — Unlawful Manufacture — Evidence. In a prosecution for manufacturing intoxicating liquor, the evidence, tersely stated in the opinion, held sufficient to sustain the conviction.

      Appeal from County Court, Atoka County; W. M. Rainey, Judge.

    W. N. Hines and Virgil Deck, convicted of manufacturing intoxicating liquors, appeal. ■
    Affirmed.

      H. Garnett, for plaintiffs in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiffs in error were jointly charged, tried, and convicted of the crime of manufacturing intoxicating liquors. In accordance with the verdict of the jury they were each sentenced to be confined in the county jail for ninety days and to pay a fine of $250. The appeal is from the judgments.

'The principal assignment of error relied on for a reversal of the judgments is, “That there is no evidence which will support the verdict against these defendants, or either of them.”

For the state, H. S. Edwards testified that he lived nea!r'Boehler, and was a school teacher; that he was trying to find the defendant Hines, who was a member of the school board, to secure a contract to teach the school in that district; that about midnight he was passing the place owned by Hines and occupied by Deck and noticed Hines’ horse tied there; that he stopped and went and looked through a crack in the wall of the smokehouse and saw the defendants engaged in operating a still, making whisky; that he had often visited a stillhouse in Arkansas, where he formerly lived, and was familiar with the process of distilling whisky; that the next morning he visited the place with an Indian named Ben McClure, and both defendants were there, and at that time there was no fire in the furnace; that the still consisted of two cans, two or three feet high, which were connected by a crooked pipe that passed through a fifty-gallon barrel; that the defendants called at his place a few days later and asked him not to say anything about their making whisky.

Ben McClure testified that he was with Edwards and saw the cans connected with a crooked iron rod in the smokehouse.

Mrs. H. S. Edwards testified that Mr. Hines and Mr. Deck called at their home and she heard a part of the conversation between Mr. Hines and her husband, and Mr. Hines said: “We know as well as you know that we were making whisky; the thing we want you to do is not to tell it; the thing we want you to do is to say you' don’t know whether it was a still or a washing machine.”

Defendant Hines testified that he lived between Crystal and Boehler; that defendant Deck was his tenant, and had lived on the place at that time about two weeks; that he had been hunting a horse that day and stopped with Deck that night; that if there was a still in the smokehouse he did not know it; that he was a farmer and did not know anything about making whisky; that he did not say to witness Edwards that he had been making whisky there; and did not try to prevent Edwards from making complaint.

Defendant Deck testified that he was a farmer and lived on defendant Hines’ place; that when Edwards and McClure were there at his place there was not any fire in the smokehouse; that the two ten-gallon cans with a pipe running from one can to the other were used to cook slop in, and were not used for the purpose of making whisky; that the barrel in the smokehouse contained slop for his hogs; that he was present when witness Edwards and the defendant Hines had a conversation a day or two later, and nothing was said at that time about a still in the smokehouse, or about making whisky.

On cross-examination he stated that the pipe connecting these cans was for cooking slop, and was kept there to keep it from scorching.

The proof of the charge in criminal causes involves the proof of two distinct propositions: First, that the offense charged has been committed; second,- that it was committed by the party charged. In this case there was competent evidence tending to support every material allegation of the information, and in our judgment the evidence amply sustains the verdicts rendered.

The other assignments are not regarded as material.

Finding no material error in the record, the judgments of the lower court herein are affirmed.

ARMSTRONG and-MATSON, JJ„ concur.


text:
    WATT ADAIR v. STATE
    No. A-2741.
    Opinion Filed April 14, 1919.
    (180 Pac. 253.)
    1. PRELIMINARY EXAMINATION — Criminal Complaint on Examining Trial — Sufficiency. • Technical accuracy is not required in criminal complaints before a justice of the peace on an examining trial: and, where the complaint intelligently informs the defendant of the offense with which he is charged, it is sufficient.
    2. SAME — Examination and Commitment — Jurisdiction of District Court. Where upon an examining trial on a felony charge the evidence shows that any felony has been committed, and that the defendant is probably guilty thereof, it is the duty of the examining magistrate to hold tlxc defendant for the offense shown by the evidence and to indorse upon the commitment the offense, but where such an indorsement is not made, if the transcript of such magistrate of the case filed in the district court shows such order of commitment, this is sufficient to give the district court jurisdiction.
    3. LARCENY — Description of Property. In an information for the offense of larceny of live stock which describes the live stock stolen as “two certain steers,” it is a sufficient description of the property charged to have been stolen.
    4. TRLAL — Instructions—Burden of Proof. Instructions should be clear-cut; and. where they are involved and place the burden of proving an affirmative defense upon the defendant, they constitute reversible error.
    5. EVIDENCE — Reasonable Doubt — Good Character. Evidence of good character may generate a reasonable doubt of guilt, where without such good character no reasonable doubt of guilt would exist, hut evidence of good character must he considered in connection with all the other evidence, facts, and circumstances appearing in the trial .-.and. if after considering all. of the evidence, including that as to good character, the jury entertain no reasonable doubt of guilt, they should convict, notwithstanding the evidence of former good character.
    8, LARCENY — Sufficiency of Evidence. The evidence carefully considered in this case, and held insufficient to support the verdict found and the judgment rendered.
    7. NEW TRIAL — Insufficiency of Evidence — Motion for New Tidal. When the evidence is insufficient to support the verdict'rendered, it is tlie duty of t.lie trial court to sustain a motion for new trial.
    8. APPEAL , AN» ERROR — Denial of New Trial — Evidence—Reversal. Where the trial court overrules a motion for a new trial when the evidence is insufficient to support the verdict, this court will reverse the acúon of the trial court and .srant a new trial of the case.

      Appeal from District Court, Craig County; Preston S. Davis, Judge.

    Watt Adair was convicted of larceny of live stock, and he appeals.
    Reversed and remanded.

      Theo D. B. Frear, for 'plaintiff in error.
    R. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Watt Adair, hereinafter designated as defendant, was informed against for the offense of larceny of domestic animals, convicted, and sentenced to -imprisonment in the penitentiary for a term of five years, and to pay all the costs of this prosecution, and that he stand committed to said prison until such costs are so paid. • To reverse the judgment rendered he prosecutes this appeal.

The defendant moved for a continuance on the ground of the absence of Red Getty, for whom a subpoena had issued but had not been returned, and his attorney filed an affidavit as the basis of such continuance, and averred that said witness, if present, would testify “that he saw the party from whom the defendant claims to have bought the steers on the highway east of the residence of the defendant.” The court overruled the motion for a continuance, and the defendant excepted.

The defendant moved the court to set aside the information upon the ground “that the defendant had not had a preliminary examination as required by the Code of Criminal Procedure of this state; that the court had no jurisdiction of the person of the defendant.” The court overruled the motion, and the defendant excepted.

The charging part of the amended information, uppn which the defendant was tried, is as follows:

“That said Watt Adair, in the county and state aforesaid, on the - day of January, 1915, did knowingly, willfully, and unlawfully and feloniously, by stealth and without the consent of the owners, steal, take, and carry away two certain steers, then and there of the aggregate value of $75, which said steers were then and there the property of W. F. Friend and Claud Nugent, with the unlawful and felonious intent on the part of said Watt Adair to then and there deprive the said W. F. Friend and Claud Nugent thereof, and convert the same to his, the said Watt Adair’s own use, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

The defendant demurred to the information upon the following grounds: That it does not conform to the requirements of the law of criminal procedure, in that it does not charge the offense in the language of the statute; that more than one offense is charged in the information; that the facts charged do not constitute a crime; that the court has no jurisdiction of the person of the defendant. The court overruled the demurrer, and the defendant excepted.

The material, uncontradicted evidence is that W. F. Friend and Claud Nugent were partners and dealers in live stock, and had a herd of cattle in a pasture, in which wrere included the two steers alleged to have been stolen; that said pasture was near the home and pasture of the defendant; that all of said cattle were removed by the said owners except the said two alleged stolen steers, that one of said two steers was blind in one eye, and the other steer was lame, and were left in the pasture near the defendant’s home, and were not removed from the said pasture by consent of their owners; that the said steers were missed, and that the said steers were in the possession of defendant from November to January, and during said time that said steers were openly kept in the lot and in the pasture of the defendant, which lot and pasture were' each near a road frequently traveled by an owner of said steers; that in January, the said two steers, together with two other cattle, were openly sold by defendant; that the purchase price paid for said cattle so sold by the defendant was paid for in a check; that the payment of said check was held up on the theory that the said two steers were not the property of defendant; that the said defendant sent for and met one of the owners of the two steers, and said to him that he supposed that he (defendant) had gotten hold of and sold two of said firm’s steers; that he had done so ignorantly ; that he bought them from a stranger, paying $20 for them, and offered to pay for the said two steers; that the said steers were of the value of $75; that the defendant offered the check he had received from the sale of said four head of cattle to the owner of the said two steers, which check the said owner refused, and stated to defendant that he must bring him $75 in cash, and that afterwards, through the party to whom the defendant had sold the said steers, the defendant paid the said owner $75 for the said two steers, and that for 20 years previous to this trial the defendant had resided near where tried, and that the defendant’s character was that of an honest man, which was not contradicted by the state; and that the said two steers were left by their owners in a pasture around which the' fence was not in good repair.

The defendant testified, which was not denied by the state, that he, defendant, bought the said two steers about dusk, near the home of the defendant, from a stranger just before Thanksgiving Day, paying the said stranger $20 for said steers, and turned them into his, defendant’s lot; that he did not ask or know the name of the said stranger, who was accompanied by another man on horseback, and that they had five or six cows which they were driving in addition to the said two steers'; that after said purchase, said steers were in the lot or ran together with defendant’s cattle in his pasture, which ran about one-half mile along a public traveled road, which one of the owners of said steers traveled two or three times a week, and could, had he looked, have seen the said steers in defendant’s pasture.

There was also evidence that one of said owners of said steers had, while passing, looked into the pasture of the defendant,- but had never seen said steers in said pasture, and that after the said two steers were missed one of the owners of said steers was at the home of the defendant.’

In addition there was evidence on the part of"'the state by an employee of the defendant, and who fed defendant’s cattle, as to when the said cattle came into defendant’s lot, that they came in through the gate, and that he saw their tracks in the snow, together with the tracks of a horse, which was shortly before Thanksgiving.'

The evidence was in conflict as to whether or not there was any snow on the ground near or on Thanksgiving Day, and as to whether or not one of the owners of said steers, when at the home of the defendant, had inquired about said missing steers.

The court gave the following instruction, to which the defendant excepted:

“(7) You are instructed that in a prosecution for the larceny of live stock, under the information in this case, the possession by defendant of the property stolen at the time of the alleged larceny may be considered by the jury, if you find from the evidence in the case that the defendant on trial was in possession of said property. But you are further instructed that while the possession of stolen property does not create a presumption of guilt, it is a circumstance which, if not satisfactorily explained, raises a very strong inference of guilt. The inference together ' with the facts and circumstances attending the taking and connected with the possession are questions for the jury, and may be sufficient to induce an irresistible conclusion of guilt. Circumstances of each particular case must be of necessity different; and, while possession of stolen property in one case may not warrant a verdict, there are other cases where such possession is so related to other circumstances of an incriminating character as to satisfy an unprejudiced mind that the possessor is the thief. Proof of possession alone is not sufficient to sustain a conviction, but where the larceny or theft is beyond question, the stolen property found in the possession of the defendant, and he exercising acts of ownership and control over it, and the explanation given by him is not a reasonable or satisfactory one, and the conduct and character of the defendant is such as to arouse suspicion, such facts and circumstances often produce the most satisfactory evidence of guilt, and will sustain a conviction, and you are instructed that if you believe from the evidence that the property mentioned in the information was stolen from the owners as alleged, and that shortly thereafter the same was found in the possession of the defendant, and that the explanation given by him is not a reasonable or satisfactory one, and that the conduct and character of the defendant are such as to arouse suspicion that then and in that,case, from such facts and circumstances, in connection with the other evidence tending to show guilt of the defendant charged in the information, the jury would be warranted in entertaining a strong inference of the guilt of the defendant of the crime charged in the information in this case.”

The court also gave instruction No. 9, which was not excepted to, but it is urged by the defendant that the same should be reviewed because of fundamental error.

“(9) You are instructed that if you believe from the evidence that the steers in question were sold and delivered to the defendant by a person unknown as to his identity, or if you entertain a reasonable doubt as to such proposition, and that the defendant, Watt Adair, did not steal them, but bought them in good faith and paid the price asked therefor by such starnger, then and in that case you cannot find the defendant guilty of larceny of domestic animals as charged and set forth in the information herein, and your verdict should be one of not guilty.”

The defendant requested numerous instructions, each of which was refused, and to such action of the court defendant in each case excepted, which said refused instructions we deem unnecssary to recite or review.

Within the time provided, the defendant filed a motion for a new trial upon the grounds, among other grounds, as follows:

“That the court erred in overruling motion to set aside the information.
“The giving of instructions Nos. 3, 7, and 9.
“Tha the verdict of the jury is contrary to the law and the evidence”

—which motion was overruled, and exceptions saved.

We have, carefully reviewed the. entire record in regard to the proceedings in the justice court, including the holding of the defendant to answer the offense for which he was tried, and we are of the opinion that the district court had jurisdiction, and the contention of the defendant that he did not have a preliminary examination for the said offense is without merit.

The defendant most earnestly insists that the information is not only duplicitous, but is also fatally defective because the property therein alleged to have been stolen is not sufficiently described. With this contention we cannot agree. The said information is certainly not duplicitous, does not charge two different offenses, and does not tend to mislead the defendant as to the offense charged. That “two certain steers” is a sufficient description of the property in an information for the larceny of live stock alleged to have been stolen is not an open question in this court, having been decided adversely to the insistence of the defendant.

In Garnett Roebuck v. State, 14 Okla. Cr. 241, 170 Pac. 277, which was a conviction for the larceny of live stock, the information describes the property alleged to have been stolen in the identical words of description as in the information in the instant case, “two certain cows,” and in the opinion in said case Presiding Judge Doyle says:

“The information in this case is unquestionably sufficient,. and would be good on a demurrer thereto.”

We are of the opinion that the court did not err in overruling the motion to set aside or in overruling the demurrer to the information in this case.

The seventh paragraph of the instructions given by the trial court we think too involved, invaded the province of the jury, and placed the burden of proving an affirmative defense upon the defendant, and the giving of said instruction was reversible error.

“The burden does not rest upon the defendant to establish even to a reasonable probability the truth of an affirmative defense. If, upon the evidence both of the state and the defendant, a reasonable doubt is created as to the guilt of the defendant, he is entitled to * * * it.” (McClatchey v. State, 12 Okla. Cr. 173, 152 Pac. 1136.)

In Courtney v. State, 12 Okla. Cr. 169, 152 Pac. 1134, it is held:

1. “Instructions which place upon the accused the burden of proving any issue in a criminal case by a pre-ponderence of the testimony are fundamentally erroneous.”
2. “Instructions should be clear-cut and concisely state the rule of law applicable to the issue under the proof.”

In Carter v. State, 12 Okla. Cr. 164, 152 Pac. 1132, it is held:

“Instructions submitted by a trial court to the jury should be clear and absolutely free from any suggestion as to the verdict the court expects. Any instruction which has the effect of intimating to the jury that the court expects a verdict of guilty, or expects the jury to go into the realm of possibilities for the purpose of finding a verdict of guilty, is fundamentally wrong.”

The ninth paragraph of the instructions given by the court was not excepted to at the time it was given but is assigned as a ground for a new trial, and we will therefore consider it. We are of the opinion that said paragraph 9 does not correctly state the law, as it places the burden. :upon the defendant of proving an affirmative defense. That the defendant never has the laboring oar as to an affirmative defense is so well established by this court, and by many other courts of last resort, as not to require citation of authority in support thereof. Again said instruction entirely eliminates the presumption of innocence with which the law clothes the defendant throughout the trial. Said ninth instruction was fundamental error.

We have most carefully considered all the material evidence in the case, which is hereinbefore set out. and are of the opinion that the explanation of the defendant that he bought said steers from a stranger, which purchase is not denied by the state, that his possession of them for about two months was open and without concealment, the said steers during said time being either in the lot. or pasture of the defendant, which pasture was along a public road often traveled by one of the owners of said steers during said time, that the sale of said steers was open, and that defendant sent for one of the owners of said steers prior to his prosecution, and told such owner that he, defendant, had innocently gotten hold of said steers, explaining how he did so, and offered and did pay for same, and the evidence of the acts of the defendant as to said cattle being supplemented by evidence, which is not controverted by the state, that the defendant for more than 20 years resided in the immediate section in which the trial was had, and had during said 20 years maintained a good 'character for honesty, we think that the evidence is insufficient to establish the guilt of the defendant beyond a reasonable doubt, and that the court committed reversible-error in overruling the motion for a new trial.

The state offers a high premium for good character, providing that proof of such character may generate a reasonable doubt of guilt and thus work out an acquittal, where without such good character a proper conviction would result.

In Wells v. Territory, 14 Okla. 436, 78 Pac. 124, it is held:

“In criminal cases proof of good character is competent to show that the defendant would not be likely to commit the crime charged against him, and proof of good character may, in many cases, be sufficient to create a reasonable doubt of guilt, although no such doubt could have existed except for the good character, but evidence of good character can only be considered in connection with all the other evidence, facts, and circumstances appearing in the trial; and, if after considering all the evidence, including that as to good character, the jury entertain no reasonable doubt of guilt, they should convict, notwithstanding the evidence of former good character.”
“Where the defendant’s explanation that he bought the cattle is undisputed and is supplemented by the testimony of as many witnesses as the court would permit to testify as to his good character and honesty, the law will presume in the behalf of innocence. It supposes legality rather than crime.” (Graham v. State, 12 Okla. Cr. 84, 152 Pac. 136.)

The responsibility of determining whether or not the legal evidence presented to the jury is sufficient to let the verdict stand rests primarily with the trial court, and upon appeal on this court.

It is well settled that this court will not disturb a verdict on account of the evidence, when there is evidence to support it. The converse rule is • equally well settled that it is not only the province, but the duty, of this court to set the verdict aside when not sufficiently supported by the evidence.

The judgment of the lower court is reversed, and the cause remanded.

DOYLE, P. J., concurs. MATSON, J., concurs in the result.