author: BESSEY, J. C. T.

text:
    C. T. WEITZ v. STATE.
    No. A-3860.
    Opinion Filed June 18, 1923.
    (215 Pac. 962.)
    (Syllabus.)
    Chattel Mortgages — Disposing of Mortgaged Property — Insufficient Evidence. Upon consideration of tbe whole record in this case, it is held the defendant was not accorded a fair and impartial trial.
    Appeal from District .Court, Beaver County; Arthur G-. Sutton, Judge.
    C. T. Weitz was convicted of disposing of mortgaged property,. and he appeals.
    Reversed.
    Loofbourrow & Loofbourrow and A. S. Dickson, for plaintiff in error.
    The Attorney General and E. L. Fulton, Asst. Atty. Gen., for th& State.
   BESSEY, J. C. T.

Weitz, plaintiff in error, here designated the defendant, was by information filed on the 26th day of March, 1919, charged with unlawfully disposing of two certain automobiles during the months of April and July, 1917, contrary to the provisions of section 2215, Comp. Stat. 1921, commonly known as the penal statute, relating to the selling, removing, or disposing of mortgaged chattels. At the trial, on April 13, 1919, the defendant was found guilty as charged, and by judgment of the court his punishment was fixed at confinement in the penitentiary for a term of two years. From the judgment so rendered he appeals.

The evidence on the part of the state discloses that the defendant, for the purpose of perfecting an automobile device which he had invented, borrowed from J. P. Bollinger in Texas the sum of $500, and to secure the payment of this note defendant on different dates, in Texas, gave to Bollinger two separate chattel mortgages covering two Ford ears, both cars to be kept in Beaver county, Okla. As further security defendant also executed a real estate mortgage on certain land in Texas. Later, the automobile attachment enterprise not proving successful, the defendant sold the “whole business” to a third person, with the agreement that this vendee would assume the indebtedness to Bollinger. Bollinger had been advised by defendant that he had sold his interests, but not given his specific consent to the sale. This third person, defendant’s vendee, failed to pay this note, and after a period of two years this prosecution was instituted against defendant for selling and removing mortgaged property under the provisions of section 2215, Comp. Stat. 1921, which reads as follows :

“Any mortgagor of personal property, or his legal representative, who, while such mortgage remains in force' and unsatisfied, conceals, sells, or in any manner disposes of such property, or any part thereof, or removes such property, or any part thereof, beyond the limits of the county, or materially injures or willfully destroys such property, or any part thereof, without the written consent of the holder of such mortgage, shall be deemed guilty of a felony, and shall, upon conviction, be punished by imprisonment in the penitentiary for a period not exceeding three years or in the county jail not exceeding one year, or by a fine of not to exceed five hundred dollars: Provided, that the writing containing the consent of the holder of the mortgage, as before specified, shall be the only competent evidence of such consent, unless it appear that such writing has been lost or destroyed.”

The defendant offered no testimony.

The Attorney General has filed a confession of error in which this court in part concurs.

The information was in two counts, charging the unlawful sale of two different automobiles, covered by two different mortgages. To this information the defendant interposed a demurrer, as follows: (1) Comes now the defendant and demurs to the information filed in this cause for the reason that the same charges two separate and distinct offenses. (2) For the further reason that said information does not state sufficient facts in what is denominated the first count to constitute a public offense against the laws of the state of Oklahoma. (3) For the further reason that said information does not state sufficient facts in what is denominated the second count to constitute, a public offense against the laws of the state of Oklahoma.

From the record we are unable to determine positively whether the court sustained the demurrer on the ground of duplicity, or whether he merely suggested that, as the information stood, it should be sustained on that ground. It is stated that the state elected to dismiss the second count of the information, from which we infer that there may have been no formal ruling on the demurrer. If the demurrer was in fact sustained because of duplicity, nothing remained from which to make an election — nothing from which one count could be striken to cure the duplicity.

Sections 2611 and 2612, Comp. Stat. 1921, point out the procedure to be followed where a demurrer is sustained.

"Upon considering the demurrer, the court must give judgment either sustaining or overruling it, and an order to that effect must be entered upon the minutes. ’ ’ Section 2611.
"If the demurrer is sustained, the judgment is final upon the indictment or information demurred to, and is a bar to another prosecution for the same offense, unless the court, being of opinion that the objection on which the demurrer is sustained may be avoided in a new indictment or information, diIreet the ease to be resubmitted to the same or another grand jury, or that a new information be filed.” Section 2612.

Since nothing appears of record to show an order directing that a new information be filed, or any other formal order, we may assume that the election of the state to strike out one of the causes of action originally stated was made before any ruling was made on the demurrer. In that event the count remaining, if otherwise sufficient, might be construed or considered the equivalent of an amended information, sufficient to support the verdict.

This court has disapproved the practice of charging two or more separate and distinct crimes or offenses in one information, with the expectation or for the purpose of dismissing all but one when the cause comes on for trial. Kimbrell v. State, 7 Okla. Cr. 355, 123 Pac. 1027.

It appears that Bollinger, the complaining witness and mortgagee, for a period of two years was depending upon the defendant’s vendee to pay this note. He at least deferred pressing his claim against the defendant until after he ascertained that he could not collect from the vendee. This, in good conscience, should operate as a waiver of his right to complain of defendant’s sale of the property. We doubt that it would so operate as a matter of law, but it illustrates how this statute is used and abused by persons who try to make collections and who, failing to do so by ordinary means, then resort to this criminal statute to collect, at the expense of the county, a private debt in which the public has no interest.

The prosecuting witness acquired title to the Texas land, which defendant gave him a mortgage upon by foreclosure proceedings. There was testimony tending to show that the value of the land was sufficient to reimburse him for the loan made. This, of course, constituted no défense, but might be considered along with other circumstances in mitigation of the offense.

The venue of the offense was not clearly charged or proved. The information states that C. T. Weitz of Beaver county, Okla., had executed a mortgage in Texas, covering the property described, and that he “then and there” sold tlje property, in violation of the statute. From these declarations it' is impossible to> ascertain just where it is charged the property was sold — whether it was in Beaver county or in Texas. True, the mortgage, which was made a part of the information, stated that the property should be kept in Beaver county, but that would not prevent the mortgagor from selling it elsewhere.

For the reasons stated, the cause is reversed.

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    JOE BURDEN v. STATE.
    No. A-4219.
    Opinion Filed June 21, 1923.
    (215 Pac. 1076.)
    (Syllabus.)
    1. Appeal and Error — Appellant not to Give Supersedeas Bond and Leave| Jurisdiction Without Leave of Court. Where; a person is convicted of a crime and perfects an appeal to this court, he is not entitled to give a supersedeas bond and leave the jurisdiction without leave of court.
    2. Same — Dismissal of Appeal. Where a defendant has been convicted and appeals from the judgment and gives bond to stay the execution of the sentence during the pendency of the appeal, and violates the condition of his bond by leaving the state without leave of court, it is within the! discretion of the court whether it will proceed to the decision of the case, or dismiss the appeal.
    Appeal from Couuty Court, Stephens County; G-. T. Burrows, Judge.
    Joe Burden was convicted of manufacturing intoxicating liquor, and lie appeals.
    Appeal dismissed.
    Wilkinson & Saye, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Joe Burden, was convicted in the county court of Stephens county on a charge of manufacturing intoxicating liquor, and his punishment fixed at a fine of $500 and six months’ confinement in the county jail. On December 19, 1921, the court rendered judgment on.the verdict. From' the judgment an appeal was taken by filing in this! court on February 27th, 1922, a petition in error with case-made.

On February 22d, 1923, the Attorney General filed a motion to dismiss the appeal on the ground:

“That the plaintiff in error herein has removed from the jurisdiction of this court and is now a bona fide, resident of the state of Montana.”

The motion is supported by the affidavit of E. R. Young, sheriff of Stephens county, who states that since said conviction the said Joe Burden has left the state of Oklahoma and is now according to reliable information, residing in the state of Montana) or the state of Idaho, that the absence of the said Joe Burden from the state of Oklahoma is not temporary, but is of a permanent nature.

, No answer or response to the motion to dismiss has been filed in this court.

It has been repeatedly decided by this court that, where a defendant has been convicted and appeals from the judgment and sentence, this court will not consider his appeal unless defendant is where he can be made to respond to any judgment or order which may be rendered or entered in the case, and that he is not entitled to give a supersedeas bond and leave the jurisdiction without proper orders permitting him to do so. Ravenscraft v. State, 12 Okla. Cr. 283, 155 Pac. 198; Morgan v. State, 14 Okla. Cr. 466, 172 Pac. 974.

Our Code prescribes the condition of an appeal bond as follows:

“If an appeal is taken and the appeal bond given as provided in the preceding section, said bond shall be conditioned that the defendant will appear, submit to and perform any judgment rendered by the criminal court of appeals or the court in which the original judgment was rendered in the further progress of the cause, and will not depart without leave of the court.” Comp. Stats. 1921, § 2812.

Under this section where a supersedeas bond is given, it is strictly upon the condition that the appellant shall fully observe the conditions named in said bond, and where it is shown, as in this ease, that appellant after perfecting his appeal, without permission or proper order of the court first obtained, left the jurisdiction of the court, thus voluntarily violating one of the conditions of his supersedeas bond, he thereby waives the right that was given him to have the judgment of conviction superseded, and then it became discretionary with this court to proceed with a determination of the case on its merits or dismiss said appeal for that reason.

In Bryce v. State, 14 Okla. Cr. 456, 172 Pac. 976, it is said:

“If persons who are convicted of crime within this state leave the jurisdiction of this court after taking an appeal without its permission or order, even for a short period of time, they may, with equal right and propriety, leave the court’s jurisdiction during the entire pendency of the appeal and the court under such circumstances, would be practically helpless to enforce its judgment against them. Persons convicted of crime in courts of record within this state have a right to appeal to this court, but such appeals must be taken in the manner and under the conditions provided by law. The right to supersede a judgment of conviction by the giving of an appeal bond cannot be considered by appellants as a license to roam at large pending such appeal, continually violating the criminal statutes of this state.”

Where, on motion to dismiss the appeal, a showing is made by the state, such as in this ease, this court in the exercise of its discretion may dismiss the same.

We are of opinion that under the rule stated appellant has waived the right to have his appeal in this ease considered and determined. The appeal is therefore dismissed.

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


author: PER CURIAM.

text:
    LENA RASMUSSEN v. STATE.
    No. A-4188.
    Opinion Filed June 23, 1923.
    (215 Pac. 1118.)
    Appeal from County Court, Oklahoma County; W. R. Taylor, Judge.
    Lena Rasmussen was convicted of maintaining a liquor nuisance, and she appeals.
    Affirmed.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, Lena Rasmussen, was convicted in the county court of Oklahoma county on the 17th day of October, 1921, of the offense of maintaining a liquor nuisance, and sentenced to pay a fine of $300 and to be confined in the county jail for a period of .90 days. The information alleges the offense to have been committed on or about the 9th day of August, 1921, on the premises located at 203 West Noble street in the city of Oklahoma City, Okla. The petition in error and case-made were filed in this court on the 23d day of January, 1922, and the cause was submitted on the 8th day of March, 1923. No brief has been filed in behalf of plaintiff in error, and no appearance was made to orally argue the cause. Rule 9 of this court (12 Okla. Cr. viii, 165 Pac. x) provides :

“Where 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.”

After an examination of the pleadings, the instructions of the court, and the judgment and sentence, the court finds that no prejudicial error occurred sufficient to authorize a reversal of- this judgment and the same is therefore affirmed.


author: BESSEY, J.

text:
    J. E. WHITE v. STATE.
    No. A-4006.
    Opinion Filed June 23, 1923.
    (215 Pac. 1079.)
    (Syllabus.)
    Disturbance of Public Assemblage — Construction of Statute — Insufficiency of Evidence. The words “without authority of law, willfully disturbs,” and the words “assembly or meetings,” as used in section 2003, Comp. Stat. 1921, construed and applied. (a) According to the construction given these words and phrases, the proof was insufficient to support the verdict.
    Appeal from County Court, Cotton County; J. C. Norman, Judge.
    J. E. White was convicted of disturbing an assembly, and he appeals.
    Reversed.
    Amil H. Japp, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Plaintiff in error, J. E. White, in this opinion referred to as the defendant, was on the 26th day of February, 1921, in the county court of Cotton county, by information charged with having willfully unlawfully, and without authority of law disturbed an assembly, to wit, a public school, by entering into said schoolhouse, closing the door, and preventing the pupils from entering the schoolhouse for a period of one hour, thereby breaking up and disturbing for such period the lawful session of said school. Defendant was found guilty as charged, and his punishment assessed at a fine of $250 and 20 days in the county jail. From the judgment so rendered, he appeals.

This prosecution was predicated upon section 2003, Comp. Stat. 1921, which' is as follows :

“Any person who, without authority of law, willfully disturbs or breaks up any assembly or meeting, not unlawful in its character, other than a religious meeting, public meeting of electors, or funeral, is guilty of a misdemeanor.”

A demurrer to the information was interposed, on the ground that it did not state facts sufficient to constitute a public offense. The demurrer was by the court overruled.

The chief witness for the state was- Miss Grace Ward, who was the teacher of the public school where the alleged disturbance occurred. She testified that on the morning of February 16, 1921, when she arrived at the schoolhouse a few minutes before 9 o’clock, she found the defendant and his wife standing near the schoolhouse door, and that about a dozen children were thereabouts, engaged in sport or waiting for school to convene; that she unlocked the schoolhouse door and passed in, and that the defendant and his wife,- at her invitation or with her permission, also entered the schoolhouse, for the purpose of' discussing some incidents of the day previous, in which the 13 year old son of the defendant had been chastised by Miss Ward. With the exception of the White boy, the school children who had come into the schoolhouse were requested to retire during this discussion; whether this request was made by Mr. or Mrs. White, or by Miss Ward, is not clearly shown.

The testimony of Miss Ward and that of other witnesses, including several children who looked in at windows and listened at the keyhole, as to just what was said during this conference, is hopelessly conflicting, except that all agree that there was no overt act of disturbance or breach of the peace. By some it was said that White or Mrs. White threatened violence to the teacher if She punished the boy in the future; others testified that Miss Ward threatened violence to Mrs. White in the event of any future difficulty. This conference lasted, according to the testimony of different witnesses, from 15 minutes to an hour. After the conference was concluded, Mr. and Mrs. White left the schoolhouse and grounds, and immediately thereafter Miss Ward rang the bell and convened school.

Upon this statement of the facts it seems doubtful to us whether the defendant “willfully and without authority of law disturb and break up” an assembly or' meeting, within the meaning of the statute upon which this prosecution was based. The defendant and his wife were patrons of the school, and had a right to interview their son’s teacher in an orderly, lawful way, not calculated to create a disturbance, either before or after school or during its session. If, as they claim, their child was ill and under the care of a physician, and the corporal punishment administered by the teacher was excessive or unreasonable, they had a right to lodge a protest with the teacher, so long as it was reasonably done and no breach of the peace was committed.

We also doubt whether the fact that some of the pupils of the school were at' play on the school grounds and were there waiting for school to convene constituted this an “assembly” or “meeting,” as was contemplated by the statute above quoted ; the school, as such, was not disturbed or broken up; the most ’that can be said is that this interview operated as a delay to the convening of school for a short period. But whether or not this was an “assembly” or “meeting,” within the meaning of the statute, we think that the disturbance was not such a “willful” disturbing, “without authority of law,” as would bring it within the operation of this statute.

The judgment of the trial court is therefore reversed.

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


text:
    G. W. ELLINGTON v. STATE.
    No. A-4250.
    Opinion Filed June 23, 1923.
    (215 Pac. 964.)
    (Syllabus.)
    1. Evidence — Inculpatory Hearsay Statements by Officer in Conversation with Defendant. In a prosecution for having possession of intoxicating liquor with intent to dispose of the same to others, it is error to admit in evidence inculpatory hearsay statements made by an officer in a conversation with the defendant when the liquor was seized.
    2. Same. A defendant in custody is not called upon to contradict statements prejudicial to him, made in his presence, and though .they are not contradicted, they are not admissible in evidence.
    Appeal from Gouuty Court, Kay County; H. S. Burke, Judge.
    G. W. Ellington was convicted of a violation of the prohibitory liquor law, and he appeals.
    Reversed.
    B. C. Wieck, for plaintiff in error.
    George F. Short, Atty. Gen., and M. W. McKenzie, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment rendered on a verdict of a jury finding appellant, G. W. Ellington, guilty of having possession of intoxicating liquor “with the unlawful intent of disposing of the same to others,” and fixing his punishment at a fine of $500 and confinement in the county jail for a period of six months.

The evidence is very brief. It shows that the city attorney of Ponca City and two policemen searched the Fox H’otel, where Ellington roomed, and found three half-gallon fruit jars of corn whisky in Ellington’s grip. One of the policemen went out after the defendant and brought him to the room, and the defendant stated that the whisky belonged to him. The defendant, as a witness in his own behalf, testified that the liquor found was his; that there were only two fruit jars of the whisky, and the only purpose he had it for was for his own use; that he did not have it for the purpose of in any way unlawfully disposing of it.

Of the various assignments, it is only necessary to consider the one that “the court erred in permitting the introduction of improper and incompetent testimony over the objections of the defendant.” J. Q. Louthan testified:

“I am city attorney of Ponca City, and with Officers Ed Hopton and Arch Smith I searched the defendant’s room in the Fox Hotel and found three two-quart fruit jars of corn whisky in the defendant’s grip. The defendant came in with Officer Smith, and I said, ‘Is this your grip?’ and he said'‘Yes; that is my grip. ’ I opened it and asked him if that was his whisky, and he said it was. I said, ‘Wash, we have been good to you; you have been drunk here a number of times, and we have given you an opportunity to quit — (The defendant’s objection as incompetent, irrelevant, and immaterial overruled, and exception.) And he didn’t say anything to that. I said, ‘As much trouble you have had over this whisky, I would think you would let it alone.’ He said, ‘Well, you know how it is; when a fellow has drank whisky as long as I have, it is pretty hard to quit.’ I said, ‘They called me up a while ago and said you were bootlegging from this hotel,’ and he didn’t make any answer.
“Mr. Wieek: Objected to, and we move to strike that out. It can serve only one purpose; that somebody called Mr. Louth-an up and told him that this defendant was bootlegging.
“The Court: That is what he told the defendant. I think all that conversation is admissible. (To which the defendant excepts.) ”

We are of the opinion that the testimony admitted against the defendant’s objections was inadmissible and prejudicial to the substantial rights of the defendant. In Vaughan v. State, 7 Okla. Cr. 685, 127 Pac. 264, 42 L. R. A. (N. S.) 889, it is said:

“It is error in the trial of a criminal case for the court to admit testimony as to declarations between an officer who had accused under arrest and the state’s witnesses, or other persons, in the presence of the accused, tending to connect him with the offense charged, and that the accused remained silent as to such conversation; and when a conviction results with such testimony before the jury a new trial should be granted. ’ ’

In Ellis v. State, 8 Okla. Cr. 522, 128 Pac. 1095, 43 L. R. A. (N. S.) 811, it is said:

“A person held in custody on a charge of crime is not called upon to contradict statements prejudicial to him made in his presence by another, and though such statements were not contradicted by such person, they are not admissible in evidence against him.”

And see Towery v. State, 13 Okla. Cr. 216, 163 Pac. 331, L. R. A. 1917D, 491.

It is a well-established principle of criminal jurisprudence that incompetent, irrelevant, and immaterial evidence, which tends to arouse the prejudices or to warp the judgment of jurors in any degree, cannot be considered as harmless. The only evidence tending to show an intent on the part of the defendant to dispose of the liquor in question to others was that the amount exceeded one gallon as shown by the state’s testimony, and it would seem that the hearsay statement of the city attorney was well calculated to bolster up that element of the state’s case.

On account of the errors indicated, the judgment of the lower court is reversed.

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


text:
    JESS HAYS v. STATE.
    No. A-4310.
    Opinion Filed June 23, 1923.
    (215 Pac. 960.)
    Appeal from County Court, Pontotoc County; Tal Crawford, Judge.
    Jess Hays was convicted of the unlawful possession of intoxicating liquor, and he appeals.
    Affirmed.
    Tom MeKeown and King & Crawford, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Jess Hays, was tried and convicted on an information filed in the county court of Pontotoc county, charging that on the 27th day of November, 1920, he committed the offense of having unlawful possession of intoxicating liquor, with intent to sell, barter, give away, .and otherwise dispose of the same, in violation of the prohibitory laws of the state. By a verdict of a jury he was found guilty as charged on January 2, 1922, and his punishment was fixed at 60 days in jail and a fine of $250.

The plaintiff in error has filed no brief, and no appearance has been made in behalf of plaintiff in error in this case at or subsequent to its submission. We may therefore assume that he has abandoned his appeal. When the case was called for final submission, the Attorney General moved to affirm the judgment for failure to prosecute the appeal.

This motion is sustained, and the judgment of the lower court is affirmed.


text:
    JOE CARSON v. STATE.
    No. A-4201.
    Opinion Filed June 23, 1923.
    (215 Pac. 961.)
    Appeal from District Court, Beckham County; T. P. Clay, Judge.
    Joe Carson was convicted of burglary, and he appeals.
    Affirmed.
    Arthur Leach, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Joe Carson, plaintiff in error was by information filed in the district court of Beckham county June 22, 1921, charged with the crime of burglary by breaking into a box car and carrying away a parcel of cured meat, of the value of $30, with the intent to deprive the owner of the meat and convert the same to his own use and benefit. At the trial, August 5, 1921, he was by a verdict of the jury found guilty as charged, and his punishment assessed at confinement in the penitentiary for two years.

This case was regularly submitted for briefs and oral argument. The plaintiff ini error has filed no brief pursuant to the orders and rules of this court, and it may therefore be assumed that he has abandoned his appeal. Upon motion of the Attorney General that the judgment of the lower court be affirmed fon failure to prosecute the appeal, the judgment of the trial court is affirmed.


text:
    BOB BALL v. CITY OF TULSA.
    No. A-3973.
    Opinion Filed June 23, 1923.
    (215 Pac. 961.)
    (Syllabus.)
    1. Jury — Denial of Jury Trial Erroneous — Unlawful Possession of Liquors. The defendant under the circumstances here, was entitled to a trial by a jury, and the refusal to afford him that right was error.
    2. Indictment and Information — Requiring Prosecution in Court Having Jurisdiction Over Two Classes of Offenses to Elect. Where an information in a municipal court states a criminal offense against the state, and imperfectly states another offense against the municipality, the court having jurisdiction over both classes of offenses, a motion to require the prosecutor to elect should be sustained.
    Appeal from Municipal Criminal Court of Tulsa; L. J. Bicking, Judge.
    Bob Ball was convicted of the illegal possession of intoxicating liquor, and appeals.
    Reversed.
    F. F. Nelson and J. W. Simpson, for plaintiff in error.
   BESSEY, J.

Bob Ball was, by information filed by the city of Tulsa in the municipal criminal court of that city, charged with the unlawful possession of intoxicating liquor. By the judgment of the court, without a jury, he was found guilty, and his punishment fixed at a fine of $19 and $1 costs. From this judgment he appeals to this court.

The charging part of the information is as follows:

“On or about the 14th day of February, 1921, within the corporate limits of the city of Tulsa, Tulsa county, Oklahoma, Bob Ball, the above-named defendant, did then and there unlawfully and wrongfully willfully violate the prohibitory law of the state of Oklahoma, city of Tulsa, Tulsa county, Oklahoma, by having in his possession intoxicating liquor, to wit, 18 2-oz. bottles of Jamaica ginger, for beverage purposes, with the intent then and there upon the part of the said defendant to barter, sell, give away, and otherwise furnish said liquor, in violation of the prohibitory law of the state of Oklahoma, contrary to the form of the statutes in such cases made and provided, and contrary to the provisions of the ordinances of the city of Tulsa, and against the peace and dignity of the state of Oklahoma and the said city of Tulsa. ’ ’

A demurrer to this information was filed, predicated upon several grounds, among which are:

“Said information fails to state facts sufficient to constitute any crime under Ordinance No. 895, which is the ordinance under which the defendant is being prosecuted.
“Said information fails to state facts sufficient to constitute a violation under either the laws of the state of Oklahoma or the ordinances of the city of Tulsa.
“Said information is so vague, indefinite, and uncertain that it fails to properly inform this defendant what crime, if any, he is charged with having committed.”

The demurrer was by the court overruled, to which the defendant excepted.

The style of this ease, as shown by the information, judgment, and other papers on file, was “The City of Tulsa, Plaintiff, v. Bob Ball, Defendant.” Following the overruling of the demurrer, and before entering his plea, the defendant demanded a jury, which was denied by the court, to which the defendant excepted. Before entering his plea the defendant then made the following motion:

“Comes now the defendant and moves the court to require the city to elect whether they are prosecuting this defendant under the laws of the state of Oklahoma or under the city ordinances of the city of Tulsa.”

This motion to require an election was likewise overruled, and an exception saved.

The information states an offense against the laws of the state, of which the court had jurisdiction by virtue of the provisions of chapter 199, Session Laws 1919. An attempt seems to have been made to also charge an offense against some city ordinance, but the attempt so made falls short of stating a complete offense against the city, and the proceedings pursuant to this information were indefinite and confusing, in that it could not be positively ascertained whether the defendant was being prosecuted for a violation of a state law or merely for the violation of a city ordinance. There was a good statement of the offense, constituting a violation of a statute, while no complete offense was charged for violating a city ordinance. The defendant, under this state of the pleadings and record, was entitled to a trial by jury, and a refusal to provide a jury was error. However, the record as a whole discloses that the defendant was tried and convicted for violating a city ordinance. Under the circumstances it was error to overrule the motion to require the city to elect as to whether the defendant was being prosecuted under the provisions of a city ordinance or for violating a state law.

For the reason stated, the judgment of the trial court is reversed.

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


text:
    THOMAS CARPENTER v. STATE.
    No. A-4291.
    Opinion Filed June 23, 1923.
    (215 Pac. 962.)
    Appeal from County Court, Stephens County; G. T. Burrows, Judge.
    Thomas Carpenter was convicted of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    Burns & Stevens, for plaintiff in error.
    Geo. P. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Thomas Carpenter, plaintiff in error, was by information filed in the county court of Stephens county charged with the manufacture of intoxicating liquor on the 3d day of November, 1921. At the trial, on December 8, 1921, he was found guilty as charged, and by the judgment of the court his punishment was fixed at confinement in the county jail for a term of six months and the payment of a fine of $200 and costs.

Plaintiff in error has' filed no brief and taken no steps to prosecute his appeal. We may therefore assume that he has abandoned his appeal. When the ease was called for final submission, the Attorney General moved to affirm the judgment for failure to prosecute the appeal.

The motion is sustained, and the judgment of the court below is affirmed.


text:
    TOM CRISWELL v. STATE.
    No. A-4254.
    Opinion Filed June 23, 1923.
    (215 Pac. 1117.)
    Appeal from County Court, Jackson County; J. M. Williams, Judge.
    Tom Criswell was convicted of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    The Attorney G-eneral, for the State.
   PER CURIAM.

Plaintiff in error, Tom Criswell, was convicted in the county court of Jackson county of the crime of manufacturing intoxicating liquor, to wit, com whisky, and on a general verdict of guilty of the offense as charged the court pronounced sentence and rendered judgment that he pay a fine of $500 and be imprisoned in the county jail for a period of 4 months. Judgment was rendered on the 22d day of November, 1921. Petition in error and case-made were filed in this court on the 20th day of March, 1922, and the cause was finally submitted on the 23d day of May, 1923. No brief has been filed in behalf of plaintiff in error, and no appearance was made to orally argue the cause at the time same was submitted. Rule 9 of this court (12 Okla. Cr. viii, 165 Pac. x) provides: “When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.” After an examination of the pleadings, the instructions of the court, and the judgment and sentence, the court finds that no prejudicial error occurred sufficient to authorize a reversal of this judgment, and the same is therefore affirmed.


text:
    DAN WARD v. CITY OF TULSA.
    No. A-3954.
    Opinion Filed June 23, 1923.
    (216 Pac. 173.)
    (Syllabus.)
    1. Jury — Summary Trial for Petty Offense. The offense charged was a mere petty offense; the offender could be tried and punished summarily without a jury.
    2. Statutes — Act Invalid Only in Part. An invalid clause or paragraph in an otherwise valid statute will not invalidate the whole act, where the valid portions are susceptible of reasonable enforcement.
    3. Gaming — Evidence Not Sustaining Conviction. The evidence examined and held insufficient to support the conviction.
    Appeal from Municipal Criminal Court of City of Tulsa; F. D. Prentice, Judge.
    Dan Ward was convicted of conducting a gambling game, and he appeals.
    Reversed.
    Munroe, Nieodemus & Dunn, for plaintiff in error.
    Frank E. Duncan and A. C. Sinclair, for defendant in error.
   BESSEY, J.

Plaintiff in error was charged by information and convicted in the municipal criminal court of Tulsa, Oklahoma, for a violation of a city ordinance making it unlawful for any person to conduct or cause to be conducted a gambling game, and his punishment was assessed at a fine of $19 and $1 costs. Although no showing is made to that effect, we assume that the punishment assessed was the maximum punishment provided by this ordinance. From the judgment so rendered plaintiff in error appeals to this court.

C. C. Logan, the officer who arrested the plaintiff in error, testified that Ward was interested in the Stag Pool Hall in Tulsa, Okla.; that Logan was present in this resort between the hours of 6 and 7 on the evening of the 24th day of January, 1921, when, he watched some men who were there playing pool, and that they placed wagers upon the result of the games; that he and another officer arrested two of these men for gambling, and that they afterwards pleaded guilty to the charge and paid a fine; that Ward, joint owner of the pool hall, was not present at the time these games were in progress. There was other testimony, to the effect that Ward was not in or about the pool hall at this time, and there was no testimony indicating that he or his agents had anything to do with the wagers placed, except that he was part owner of the resort.

Appellant first urges that the act creating the municipal criminal court of the city of Tulsa, being chapter 199, Session Laws 1919, is void because it makes no adequate provision for trial by jury.

If it be true that the statutory provisions for obtaining a' jury in the municipal court are void or impossible' to execute, that fact alone would not ordinarily invalidate the other portions of the statute. Furthermore this objection cannot be consistently urged in this case, inasmuch as the penalty assessed against plaintiff in error, including the costs, did not exceed the amount of $20. The offense charged was a mere petty offense; the offender could be tried and punished summarily without a jury. Ex parte Johnson, 20 Okla. Cr. 66, 201 Pac. 533; Ex parte Bochmann, 20 Okla. Cr. 78, 201 Pac. 537; Ex parte Tom Johnson, 13 Okla. Cr. 30, 161 Pac. 1097; Chastain v. State, 18 Okla. Cr. 565, 196 Pac. 973.

It is next contended that the evidence is insufficient to support the judgment of conviction. On this point the Attorney General has confessed error, and we thing the confession of error is well taken. There was no evidence that plaintiff in error knew of this gambling, or that h& directly-or indirectly authorized it or in any way acquiesced in the carrying on of gambling games in his place of business. On the contrary, there was evidence tending to show that he exercised reasonable care to prevent games of chance and the placing of wagers upon games in his place of business. The mere fact that some men playing pool in his resort in his absence bet on the results of the games is not of itself sufficient to authorize the conviction of plaintiff in error of conducting a gambling game.

The judgment of the trial court is> reversed.

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


text:
    BERT MOORE v. PHELPS, District Judge, et al.
    No. A-4702.
    Opinion Filed June 25, 1923.
    (215 Pac. 965.)
    Mandamus by Bert Moore against James I. Phelps, District Judge, and another, to compel defendant to approve a super-sedeas bond. On motion to dismiss.
    Motion sustained, and cause dismissed.
    Lewis R. Morris, for relator.
   PER CURIAM.

On May 23, 1923, relator filed in this court his petition for a mandamus to James I. Phelps, district judge, and Frank Taylor, court clerk of Canadian county, reciting that he was sentenced by Judge Phelps to serve a term of five years in the penitentiary and pay a fine of $2,500; that said court fixed the supersedeas bond in the sum of $6,000; that thereafter by order of this court said bond was reduced to the sum of $5,000; that relator presented to said court clerk and said district judge a good and sufficient supersedeas bond in the sum of $5,000, in proper and legal form, and that said court clerk and judge refused to and still refuse to approve the same; that the refusal to approve the same by the said court clerk is not caused by the insufficiency of said bond but is arbitrary.

On May 24, 1923, an alternative writ of mandamus issued from this court. Before the return day relator filed motion to dismiss the cause for the reason that said court clerk has complied with the alternative writ issued by approving the super-sedeas bond presented to him.

The motion to dismiss the cause is sustained, and the same is hereby dismissed.


text:
    BERT MOORE v. TAYLOR, Court Clerk.
    No. A-4739.
    Opinion Filed June 25, 1923.
    (215 Pac. 965.)
    (Syllabus.)
    1. Mandamus — Criminal Court of Appeals’ Jurisdiction to Issue Proper Writ. The Criminal Court of Appeals has jurisdiction and power to issue the writ of mandamus, directed to an. inferior court, in the exercise or in aid of its appellate authority, where the same is a proper proceeding in a criminal case.
    2. Sam:e — Wlrit to Inferior Court in Nature of Appellate Jurisdiction. A mandamus to an officer is said to be the exercise of original jurisdiction, but a mandamus to an inferior court is in the nature of appellate jurisdiction.
    Mandamus by Bert) Moore against Frank Taylor, Court Clerk of Canadian County, to compel defendant to approve a •supersedeas bond.
    Writ denied, and cause dismissed.
    Lewis R. Morris, for relator.
    The Attorney General and Leon S. Hirsh, Sp. Asst. Atty. Gen., for respondent.
   DOYLE, J.

The application for mandamus in this court recited that relator was, by information filed in the district court of Canadian county, charged with the commission of felony, and said court fixed his appearance bond; that relator presented to the court clerk an appearance bond in proper and legal form; that the court clerk arbitrarily refuses to approve the same; that relator as a matter of right under the law is entitled to have said bond approved.

In Eubanks v. Cole, District Judge, 4 Okla. Cr. 38, 109 Pac. 742, it is said:

“This is' a court of special jurisdiction, limited in the exercise of its powers exclusively to criminal cases, and it is undoubtedly true that, except in cases where under the law this court has original jurisdiction, all exercise of power in other cases must be in virtue of its appellate jurisdiction, and the writ of mandamus can be issued only in the exercise or in ■aid of its appellate authority. A mandamus to an inferior court' is in the nature of appellate jurisdiction. The term ‘ appellate, ’ in the constitutional phrase, ‘ a Criminal Court of Appeals with exclusive appellate jurisdiction in criminal cases,’ is not used in a restricted sense, but in its broadest sense, as embracing the power and jurisdiction to review and correct the proceedings of inferior courts in criminal cases, brought before it for determination, in the manner provided by law. The statute prescribes the procedure by which such proceedings shall be brought before this court, and among the other modes prescribed the writ of mandamus may be a proper proceeding.”

And it is held that'in other cases it is generally, if not always, an exercise of original jurisdiction, and a mandamus to an officer is said to be the exercise of original jurisdiction.

It follows that the application for a mandamus in this ease must be, and accordingly is, denied and the cause dismissed.

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


author: MATSON, P. J.

text:
    WILLIAM HAWKINS v. STATE.
    No. A-4042.
    Opinion Filed June 30, 1923.
    (216 Pac. 166.)
    (Syllabus.)
    1. Homicide — Evidence Sustaining Conviction for Murder. For evidence held sufficient to support the verdict and judgment, see statement of case and body of opinion.
    2. Appeal and Errar — Harmless Error — Exclusion of Evidence Otherwise Proved- The exclusion of evidence to prove particular facts is not prejudicial, if the facts sought to be proved are otherwise proved by competent evidence, and it is apparent that the evidence excluded wiould not have changed the result.
    3. Trial — Refusal of Requested Instruction Where Case Covered in Charge. Where the instructions given fairly and fully cover the law of the case, it is not error to refuse requested instructions.
    4. Jury — Procedure Where, Before Testimony Taken, Juror Becomes Sick and Unable to Perform Duties. If, before any testimony is taken, a juror becomes sick so as to be unable to perform his duties, the court may order him to be discharged and a new juror sworn in his place. In such event it is not mandatory that the entire jury be discharged and a new jury impaneled.
    5. Tlrial — -Keeping Jury Together Three Days, and Admonition Held not Coercion of Verdict. Keeping the jury together from Saturday night until the following Wednesday morning, to consider of their verdict in a murder case, is not an unreasonable length of time, and the further! facts that in the interim the trial court cautioned the jury that they should reason together among themselves and arrive at a verdict if possible do not together amount to acts coercing a verdict.
    Appeal from District Court, Ottawa County; S. C. Fullerton, Judge.
    William Hawkins was convicted of murder, and he appeals.
    Affirmed.
    On the 20th day of August, 1920, an information was filed in the district court of Ottawa county, jointly charging William Smith, alias William Hawkins, C. B. Wood, and Joe J. Lynch with the crime of murder, alleged to have been committed in said county on the 1st day of June, 1920, by shooting one 0. B. Vanderpool with a revolver. A severance was granted, and the defendant Hawkins was tried in February, 1921; the jury returning into open court on the 9th day of February, 1921, a verdict finding the defendant Williams Hawkins guilty of murder and assessing his punishment at imprisonment in the state penitentiary for life at hard labor.
    Motion for a new trial was filed, heard, and overruled, and on the 19th day of February, 1921, judgment was rendered against the defendant, and defendant sentenced to life imprisonment in accordance with the verdict. In due time and by proper proceedings an appeal was taken to this court by filing herein, on the 8th day of August, 1921, petition in error with ease-made attached.
    The petition in error contains 28 separate assignments of error, some of which involve the sufficiency of the evidence to sustain the verdict and judgment. It will be necessary, therefore, to include herein a somewhat extended statement of the facts.
    It was the theory of the state that the killing of Vander-pool was the outgrowth of an unsuccessful attempt on the part of this defendant and of his eodefendants to resist and escape from arrest by the deceased, Vanderpool, and certain other officers and persons who had them in custody at the time of the commission of this homicide. The defendant did not become a witness in his own behalf. It is the theory of counsel who represent him in this court that the state wholly failed to make out a ease of murder against him; counsel conceding the homicide was the result of an attempted resistance and escape from arrest, yet nevertheless such attempt was solely the independent acts of Joe J. Lynch, committed by said Lynch without consent, connivance, aiding, or abetting on the part of this defendant. In this connection it should be stated at the outset that Joe J. Lynch, upon whom this defendant would place entire responsibility for the homicide, was¡ shot by the officers during the perpetration of,' and in resistance to, the homicide and later died.
    The facts which the trial court permitted the state to prove are substantially as follows: Norris Chandler, also killed, was part owner and manager of the McKinney-Chandler Wholesale Grocery Company, doing business in Miami, Ottawa county, Okla. On the night of May 31, 1920, Chandler, in company with the deceased, O. B. Yanderpool, al detective whom Chand- ' ler had employed, and Frank Byrd, an officer, and one Wesley Brown, a private citizen, went to the city of Picher in Ottawa) county in an automobile, arriving in Picher a short time before midnight that night. They stationed themselvesi near the business house of the defendant C. B. Wood, and remained there soma little time, when this defendant Hawkins and Joe J. Lynch appeared on the scene driving a Buick automobile. It appears that both Hawkins and Lynch! had been former employees of Chandler in the wholesale grocery, and that they were both residents of the city of Miami. Hawkins and Lynch went into the place of business of Wood. Chandler and Van-derpool then went to the front door of Wood’s business house, and Byrd went around to the back door or side door and asked to be admitted. A short time afterwards persons were heard coming toward the front door of the business house. They came outside, and these persons were Hawkins and Joe J. Lynch, who had come there together in the Buick automobile. As soon as they were outside of Wood’s store, the deceased, Vanderpool, and Chandler attempted to put them under arrest. Some resistance was made by the defendant Hawkins, and Frank Byrd, who was an officer, was called around to assist Yanderpool and Chandler. Byrd asked Chandler if the parties had been searched and received an affirmative reply. Byrd then started to put the handcuffs on Hawkins and Lynch. Hawkins resisted and stated to Byrd, in substance, that “you know me and that it is not necessary to put handcuffs on me. ’ ’ Byrd replied “that he knew him and that was the reason he was going to handcuff him.” There was somewhat of a scuffle between Byrd and this defendant at the time he was handcuffed, and during the scuffle a .38 caliber pistol that Byrd had was discharged without injury to anybody, and finally Byrd accomplished his purpose by placing one handcuff over the right wrist of this defendant and the other end of the handcuff over the: left wrist of Lynch. Byrd then handed this .38 caliber pistol to Chandler. Wood was also arrested and. searched by Byrd but not immediately at the time and place that Hawkins and' Lynch were placed under arrest. Wood had no weapon when searched.
    After these parties were arrested 11 sacks of sugar, which had at one time been the property of the MeKinney-Chandler Wholesale Grocery, were removed from the store of Wood and placed in the rear part of the Buick touring ear in which Hawkins and Lynch had driven there that night. The parties then started with their prisoners back to the city of Miami, the county seat, a distance of approximately 12 miles. In returning to Miami, Chandler drove the car in which they had gone to Picher and was seated in the front seat on the left side thereof. In the front seat and immediately to Chandler’s right was the defendant C. B. Wood. In the rear seat and on the right side thereof was Lynch, and immediately to Lynch’s left and handcuffed to his left arm, was this defendant Hawkins, and immediately, to Hawkins’ left and on the left side of the rear seat sat the deceased Yanderpool. The car driven by Chandler left the city of Picher first and was followed by the Buick car driven by a young man by the name of Hatfield. Frank Byrd occupied the right-hand side of the front seat of the Buiek car, and Wesley Brown sat upon the saeks of sugar in the rear part of the Buiek ear. In this order the cars proceeded toward Miami; the Chandler car traveling at a distance, varying at times, from 75 to 100 yards in front of the Buiek car. In this order the ears arrived at the city of Commerce, which is about halfway between Picher and Miami. When the c^rs passed through Commerce, between the hours of 1 and 2 o’clock on the morning of June 1, 1920, Byrd hailed Charley Warner, who was chief of police of the city of Commerce, and requested him to get on the car and go to Miami with them. Warner then jumped on the left running board of the rear car.
    A short distance south of the city of Commerce was a cave-in or rough and broken place in the road which necessitated the slowing down of the ear, and the rear car, which was heavily loaded with sugar, lost quite a distance at this rough place, so that the car driven by Chandler was from 150 to 250 yards ahead of the rear car at that time. About the time the rear car was leaving this rough place or cave-in in the road, shots were heard in the front car, one heavy shot and a slight pause, and then a number of other shots in rapid succession, and immediately the front car was seen to swerve in the road and turn into the road into a ditch along the right side and stop against a small embankment; the rear part of the front ear stopping about even with the west side of the traveled road and apparently at an angle of about 45 degrees in a southwest direction. Upon hearing the shots in the front ear the speed of the rear car was increased, and the rear car arrived on the scene of the shooting a very short time after the first shooting had' subsided. The rear car stopped about 40 feet back in the road and to the north and east of the front ear. Warner got out on the east side of the ear and Byrd on the west side thereof and started toward the front ear. When they had gotten about even with the front of the rear car and in the reflection of the lights from the rear car, shooting again commenced from the rear end of the front car. This shooting was first directed toward Byrd and then toward Warner. Warner says that shots were fired from both the left and right sides of the rear end of the front car. Byrd testified that he could not tell whether the shots came from both sides of the front car or not. Both agree, however, that the shooting at that time was from pistols of two different calibers, as the first shooting was from a pistol that made a louder report than the later shooting. In a few seconds this shooting ended. Alt that time Warner was on the east side of the front car and Byrd on the west side thereof. When Byrd reached the west side of the front car Lynch took a couple of shots at him with a .32 automatic revolver that was owned by Byrd, and which had been loaned by Byrd to Yanderpool before the parties were arrested that evening. Lynch at that time was on the east side of the rear end of the front car, which was the left side thereof, and the side that was occupied by Yanderpool when the car left the city of Picher. Hawkins was on the right or west side of the rear part of the front car and had opened the right rear door and was in the act of stepping out of the rear part of the ear when Byrd and Warner got up there. Wood, who had been riding in the front seat, had gotten out of the car and was around in front of the car when Byrd and Warner got up there, and immediately surrendered. Wood was unarmed, barefooted, in his shirt sleeves, and without a hat. He was in the same condition as when arrested. Chandler was crouched over the steering wheel and apparently in a dying condition. His feet were practically in the position of one driving the ear. A bullet had entered his body just above the right hip pocket and about two inches to the right of the center of the spine. Chandler had also received a second shot. Vanderpool was found with! a bullet hole entrance on the left side of his head and exit under the right arm. Also another bullet had entered his body a little to the right of the breast bone and lodged on the right side and about two inches from where the other bullet had lodged under the armpit. Vanderpool was not yet dead. He was lying down between the back of the front seat and the front of the rear seat, with his feet against the left rear door of the ear, and his head and shoulders resting on the cushion of the rear seat near the right rear door of the car. His face was turned toward the left of the car. Hawkins received a wound on the right hand or wrist, and a bullet had hit the handcuffs and so warped and bent them that they could not be unlocked from Lynch’s hand. Lynch had received several wounds, and later died from the effects of such' wounds. When Lynch was first seen after the shooting he was sitting straddle of Vanderpool’s legs. Two pistols were found in the rear part of the front car, lying onfe on top of the other. The top pistol was the .32 automatic which had been loaned by Byrd to Vanderpool, and which Byrd had seen Lynch using when he first arrived at the car. The other pistol was a .45 Colt’s automatic which had never been seen by any of the officers prior to the shooting. The .38 caliber pistol which Byrd had loaned to Chandler just before the arrest was afterwards found in the roadway about 75 feet back of where the Chandler car stopped, as near as the officers could estimate the distance. This pistol was found close to the point where the Chandler car was first seen to swerve in the road at the time the shooting commenced, and this pistol was found near the left or east side of the traveled road, and when found had two discharged shells with a loaded shell between them. The .45 automatic pistol that was found in the rear part of the fronti car had been shot empty. In the top of the front car was also found a bullet hole and one in the rear bow of the top. One entered the back part of the body under the hack fender on the left side, and one right over the back fender on the left side. These were from shots fired by Warner. There was also one in the front lock by the driver’s seat and one in the left front door, and a bullet was found under the front seat where the driver sat. A couple of empty shells were also found, and the bullet found in the' car' was identified and admitted in evidence. Immediately when Warner and Byrd got to the car after the shooting, Yanderpool stated “Lynch is the man who shot me,” and Lynch then said: “Yes; I done all the shooting.” The bullets removed under the pit of Vander-pool’s right arm were both .45 caliber steel jacket. Besides the .45 caliber automatic pistol found in the Chandler car, Warner was also shooting a .45 caliber Colt’s automatic. While Byrd was shooting a No. 7 German Lugar, which is about the equivalent of a .32 caliber.
    The foregoing statement of the case is approximately correct. A few minor details are omitted, which are not deemed essential to a correct understanding of the facts.
    F. W. Church, and Gus Seawel, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

(after/ stating the facts as above). The first assignment of error presented and urged in the brief relates to the sufficiency of the evidence to sustain the conviction. Under this general assignment counsel have grouped six separate assignments contained in the petition in error, all relating to the general question of the sufficiency of the evidence. It follows, therefore, that, if the evidence is held to be sufficient to sustain the verdict and judgment, the assignments thus grouped under this head are each held to be without merit, without further reference thereto in this opinion.

As heretofore stated, counsel contend that the evidence is wholly insufficient to sustain the verdict and judgment, because the state relied upon circumstantial evidence, and the circumstances are not wholly inconsistent with innocence, and are explainable upon the hypothesis of defendant’s innocence.

We are unable to agree with the proposition that the evidence is insufficient. Counsel for this defendant have presented an elaborate, extensive, and able brief, which contains a very adroit line of argument in an attempt to persuade this court that this judgment should be reversed upon the foregoing ground, alone, but, giving due consideration to the argument presented, we cannot agree with the conclusion that the facts and circumstances in evidence in this case are logically capable of explanation on any theory consistent with defendant’s innocence.

Indeed we are convinced from an examination of this record that the trial court, out of an abundance of caution, and to the prejudice of the state, confined the limits of the state’s proof to such an extent as to materially prejudice the state’s case. '

We are convinced that there were two theories upon which this case should have been submitted. Instead of submitting it on. both theories, the trial court submitted it only upon one theory, the latter of the two hereafter stated. First, it is our opinion, and the opening statement of the county attorney indicates, that, had he not been prevented by the trial judge, the evidence would have disclosed on the part of this defendant and his eoparticipant Lynch a combination or conspiracy previously formed between them to steal and dispose of sugar belonging to the McKinney-Chandler Wholesale Grocery Company, when they were each employees of that company, and that resistance and escape from arrest was a part of the common intent of each participant in the commission of such crime, and whether or not this killing was a part of such unlawful combination with such common intent was a question of fact for the jury, and the case should have been submitted to the jury on that theory under proper instructions. The trial court, however, at the outset excluded this theory, and so limited the state’s proof that it was impossible to so submit the cause. It is apparent that, had the state been permitted to open avenues of proof along the line here indicated, the question of whether or not this defendant fired the fatal shot or was present actively aiding and abetting his coparti-cipant Lynch in the actual killing of Yanderpool would have been immaterial, because this defendant would have, under such circumstances, been responsible for the acts of his cocon-spirator, committed in the furtherance of the common design. The decisions in support of this theory are numerous, and it is only necessary to incorporate herein a few of the more prominent of them. Holmes v. State, 6 Okla. Cr. 541, 119 Pac. 430, 120 Pac. 300; Ruloff v. People, 45 N. Y. 213; People v. Wilson, 145 N. Y. 628, 40 N. E. 392; Territory v. McGinnis, 10 N. M. 269, 61 Pac. 208; State v. Zeibart, 40 Iowa, 169; Com. v. Brown, 90 Va. 671, 19 S. E. 447.

Eliminating the question of conspiracy, is the evidence sufficient to sustain the conviction upon the theory that this defendant, who was present, actively aided and abetted Joe J. Lynch, who, it is contended, committed the actual shooting and inflicted the wounds which resulted in the death of Yander-pool? There is no direct evidence in the record to contradict the statement of Yanderpool that Lynch was the one who shot him. Indeed, under this latter theory, upon which the case was finally submitted, it is immaterial as to which of either Hawkins or Lynch fired the fatal shot, provided, of course, the other was at the time aiding and abetting him with like intent. We think this evidence is susceptible of no other construction than that both Hawkins and Lynch actively participated in the killing of Yanderpool. The physical facts, in our opinion, alone are sufficient to conclusively disprove any other theory, and Hawkins’ conducted both at the time of his arrest, and immediately after shooting had ceased, indicate a clear desire and intent upon his part to resist and escape arrest if possible, by every means within his power, and in addition to these circumstances there is evidence in the record that both Hawkins and Lynch fired at Warner and Byrd when they approached the scene of the shooting, and it is a fair inference that if both Hawkins and Lynch were acting in concert at that time they were acting in concert immediately preceding such occurrence, because the firing at Warner and Lynch was solely for the evident purpose of escaping arrest, as must also have been the killing of Yanderpool, and neither Hawkins nor Lynch could have escaped without the active participation and consent of the other, as they were handcuffed to each other at the time.

We conclude, therefore, that the evidence is sufficient to sustain the verdict and judgment upon the theory upon which this case was submitted to the jury. The inferences properly deducible from the facts and circumstances in evidence were for the jury, and this court will decline to disturb a verdict where there is evidence in the record reasonably tending to support the same.

It is also contended that the trial court erred to the prejudice of this defendant in excluding certain proffered evidence of Dr. Ira W. Smith, concerning the alleged dying declaration of the deceased, O. B. Yanderpool. The record upon this question is as follows:

“Cross-examination. Questions by Mr. Church: Q. The bullet went in on the left side of his head? A. Yes, sir. Q. You are sure of that? A. Well I think I am. I am either right or I am wrong; it was one way or the other. I think it was the left side and came out on the right. Q. Came out under his right armpit? A. Yes, sir, if I am right on where it entered. Q. Was Mr. Vanderpool suffering when you seen him first? A. Yes. Q. Do you know whether he was conscious or not? A. Yes, sir. Q. Did you have any conversation with him? A. He spoke a few words to me. Q. Do you recall what they were? A. Yes; I believe I remember. Q. What did he say? Mr. Mason: We object to any statement there until it is shown it is competent. By the Court: Where was that statement? Mr. Church: When he was there attending him. By the Court: Where was it? Mr. Church: At the mayor’s office in Commerce immediately after this shooting. By the Court: Objection sustained. Mr. Church: Defendants except. Q. Do you know whether or not Mr. Yanderpool realized at that time that he was' dying? A. Yes, sir; I think he did. Q. Did he so state to you? A. He did to the crowd. Q. What did he say then? Mr. Mason: To that we object as incompetent, irrelevant, and immaterial at the time. By the Court: Objection sustained. Mr. Church: Defendant excepts. Q. Was he suffering great pain at that time? A. Well, he didn’t complain of so much pain, of course the wounds— he was suffering more from more of a shock. He wasn’t in as much pain as he might have been with an injury of less magnitude. By the Court: Gentlemen of the jury, you will be permitted to retire in charge of your sworn bailiff while a matter of law is being presented to the court. During your •absence from the courtroom you will not discuss this case among yourselves or permit it' to be discussed in your presence or hearing. Befrain from forming any conclusion as to the guilt or innocence of this defendant. Swear a bailiff, Mr. Clerk.” And thereupon Mr. J. A. Triplett was duly sworn as bailiff for the jury. “By the Court: You may retire, gentlemen, with your bailiff.” And thereupon the jury retired from the court in charge of their sworn bailiff; and the proceedings following, between double parentheses, occurred in their absence:
“((Mr. Church: Now at this time — By the Court: You may examine the witness. Mr. Church: I want to state to the court the purpose — By the Court: No, sir; just examine the witness. Q. Dr. Smith, at this time did Mr. Vanderpool make any statement? A. Well he — Mr. Mason: To that we object as incompetent, irrelevant, and immaterial. Mr. Sea-wel: And we offer it as the dying declaration of the party claimed to have been killed. By the Court: It will be rejected on that ground without any further ceremony. Mr. Seawel: Exception. Mr. Seawel: We also offer it as part of the res gestae. By the Court: You may make your offer for that purpose. Mr. Church: Defendant offers to prove by the witness, Dr. Ira Smith — By the Court: Examine your witness and see what he will swear to, and then you have your offer in the record. Q. What did this man say there at that time, Dr. Smith? A. Well, the first I remember that he said was giving his wife’s telephone number in Joplin — I think her street address — and asked that she be notified of his condition. Q. What did he say with reference to who shot him? Mr. Mason: To that we object as leading, incompetent, irrelevant, and immaterial. By the Court: It may be admitted subject to the objection. It may be answered. Mr. Mason: Exception. A. Well, after he had made a statement or had had his wife telephoned of his condition, I went to give him a hypodermic. I examined him, he was only — he and Mr. Chandler were the only ones there at that time, I believe, of the injured, and I asked him some questions about the shooting or how it happened or something, and asked him if he knew who did it, he said, ‘Joe Lynch,’ and I thought at the time first or up until that time I thought he was one of the men that had been arrested for the crime. Mr. Warner, when he called me, said he had a bunch of sugar thieves down there shot all to pieces or something like that, and when I went in I didn’t expect to find any officers hurt or anything of the kind. I expected it to be the other crowd, and I asked him who shot him, and he said, ‘Joe Lynch,’ and then after a few minutes— just a few minutes — they brought in Lynch and Hawkins, and I don’t know whether Wood might have been there in the first place; it seems to me he was, but I am not certain about that —anyway about this time I knew Wood was sitting upon the stove or table or something, and I got around and seen Mr. Lynch, and after I looked at him I knew who he was, and I went back to Mr. Yanderpool the second time and asked him if he was certain that Lynch was the man that shot him, and he said he was. I think there was somebody standing by heard him say that to me the second time. Mr. Church: That is all. Questions by Mr. Mason: Q. His statement as to how this injury occurred was in answer to questions propounded by you to him? A. Yes; I just asked him who shot him, and he said, ‘Joe Lynch.’ Q. About how long was that after the injury? A. Well, I don’t know just exactly, because I was at home in bed when it happened, and they called me — it was only a few steps from my house down to the place where they had him, and it wasn’t but a few minutes. I heard the shooting and was — I had gotten up, before 1 o’clock; I was out of bed, I didn’t dress, just put my clothes on over my nightshirt and went on down there. Q. Did you know where the shooting occurred? A. Well, I have been told. Mr. Mason: That is all. Questions by Mr. Church: Q. He was at that time mortally wounded, was he? A. Yes, sir. Q. Do you know how long after that until he died? A. Well, I don’t remember exactly, it must have been two hours before he died, if I remember. That would be about what I would judge as to the time. Q. Did you go to Miami with him? A. Yes, sir. Q. Were you with him at Miami? A. Yes, sir. Q. Until he died? A. Yes, sir. Q. How long after he made these statements until he became unconscious? A. Well pretty soon after I was talking with him the second time I left there and came on — I said I came with him — I don’t— they brought him in the ambulance and I drove down in my car. I didn’t ride in the ambulance with him, and I think we probably came on ahead of the ambulance to the hospital, and I don’t know just how long after he became unconscious, whether before they left the mayor’s office or on the road, but he was not conscious any more after he got here. I didn’t see him on the road. Q. How long approximately did it take you to come from Commerce to Miami? A. Well after I left him it was a few minutes before we started. I wasn’t very long driving from Commerce over here, but I was there a few minutes before I started. Q. How many minutes would you say you were in Commerce before you started over here? A. Well I really don’t remember. Q. Ten or fifteen? A. Yes; I believe' so. Q. In your best judgment how many minutes did it take you to come from Commerce to Miami? A. Well I don’t remember the trip. If I drove it would not take me over seven or eight minutes. Somebody else would take longer, I expect. I believe I rode over in Chandler’s car and somebody else drove it. But I knew this driver. Somebody told me to get in this car of Mr. Chandler’s, and he would drive me over, and I don’t know whether I went and got my ear or not. I don’t think I did. Q. How long after you arrived in Miami until you next seen Vanderpool? A. Well it was several minutes before they brought him up to the operating room. I went on up to the operating room. I had ’phoned Dr. De Arman I believe, and told him to meet me at the hospital. From the time I last saw him in Commerce until I saw him in Miami must have been thirty or forty minutes. Q. Did he have any difficulty in speaking at the time in the mayor’s office? A. No, sir; he spoke plainly and distinctly. He spoke out loud enough to hear him all over the house. Any one within twenty feet of him could understand what he said. The last words he said were a little weaker than the first. The last statement he made to me his voice was in a lower tone of voice; in fact he didn’t speak out as loud in talking to me as he did when he was talking to some one that was trying to put in a call for him. He was talking to a party that was more distant from him. Mr. Church: That is all. Questions by Mr. Mason: Q. How long was he there in the mayor’s office in your presence? A. Well, I don’t know— it was several minutes, but I don’t remember. Q. Ten or fifteen minutes? A. Longer than that. Q. Thirty minutes? A. I believe it was even more than thirty minutes. I believe it was from the time I went down there until I left, I think. It might have been more than thirty minutes, I could not be very definite on it, but I feel sure it was that much. They went back out to where the shooting occurred and brought the other men in, and I went and gave these other men some assistance, gave Mr. Lynch a hypodermic, and was around there and looked at his wounds, and it was several minutes taken in the work I did around there. I think even after I first administered my treatment to Mr. Yanderpool that I went down to Mitchelson’s house or down to the drug store or maybe down to my office or down to the undertaker’s. I am not certain I went into his place, but I believe I did. Mr. Mason: That is all. Mr. Church: That is all. Mr. Mason: The state objects to the testimony of the witness' for the reason it is incompetent, irrelevant, and immaterial as a dying declaration, 'and no part of the res gestae. By the Court: The objection will be sustained, and the offer to prove and show what the deceased, Yanderpool, said at the mayor’s office subsequent to his removal from the scene of the injury will be denied as incompetent, irrelevant, and immaterial, and not a part of the res gestae, to which the defendant may have an exception. Mr. Church: Exception. Mr. Church: We offer that also' as a dying declaration of the party assaulted in addition to the offer we made as part of the res gestae. Mr. Mason: To that we object as incompetent, irrelevant, and immaterial, and it does not come within the rule of dying declarations. By the Court: Objection sustained. Mr. Church: Defendant excepts.)) ”

The objection that the foregoing offered testimony constituted no part of the res gestae apparently was properly sustained. It was merely narrative of a passing event, elicited by questions propounded by the doctor and afterwards answered by the deceased, and was not an incident of the event itself, nor a spontaneous utterance or declaration attending the transaction and explanatory thereof. The evidence offered does not not come within the well-known exceptions to the hearsay rule, admitting declarations as verbal acts and res gestae.

That such evidence was admissible as a dying declaration is more difficult of solution. We think it apparent that the trial court excluded this evidence as a dying declaration for the reason that the statements were not made under a sense of impending death, but we think it can be reasonably inferred from the surrounding circumstances that Yanderpool at the time realized that he was going to die from such wounds, and that the preliminary proof was sufficient in this instance to admit such evidence as a dying declaration on the part of Vanderpooi.

However, we believe this judgment should not be reversed because of the failure of the trial court to admit this evidence. In Addington v. State, 8 Okla. Cr. 703, 130 Pac. 311, this court held:

“The exclusion of evidence to prove particular facts is harmless, if the facts sought to be proved are subsequently proved by other evidence, and it is apparent that the evidence excluded could not have changed the result.”

See, also, Clingan v. State, 15 Okla. Cr. 483, 178 Pac. 486.

The facts sought to be proved as a part of the dying declaration of Yanderpool were proved in this case by the testimony of the witness Charley Warner, to the effect that Yander-pool stated that Lynch was the man who shot him. The evidence had therefore been admitted as part of the res gestae. It was cumulative, and its exclusion was not, under the circumstances, prejudicial, and, in our opinion, in no way affected the result. Section 2822, Comp. Stats. 1921.

It is next contended that the trial court erred in permitting the witness Wesley Brown to testify, over objection of defendant, that the deceased, Chandler, came to his place on the night of May 31,1920, and asked him to come out with him that night and to wait for these defendants and a car loaded with sugar.

The record shows that the trial court first sustained an objection to this testimony and did not permit the witness to testify to such facts until counsel for the defendant had asked the witness what he was doing out there that night, and then on redirect examination permitted the witness to testify to the facts here complained of.

From what has heretofore been said concerning the first theory upon which this ease could have and should have been submitted to the jury, this evidence was competent. The fact that the case was never submitted upon that theory does not alter or in any way change the competency of the evidence. The faet that the trial court narrowed the scope of the res gestae of this transaction appeared to the prejudice of the state and not to the prejudice of the defendant. What is here said also relates to other assignments of error which it is considered not necessary to discuss.

Objection is made to numerous paragraphs of the court’s general charge to' the jury, and to the refusal to give certain requested instructions. We have examined the instructions given in connection with those requested and are convinced that the law of the, case was fairly and fully presented to the jury, and that no prejudicial error was occasioned by the refusal to give requested instructions.

Before the jury was sworn to try the case and after 12 men had been accepted, the juror Victor became sick. Under instructions from the court this prospective juror was examined by a physiean and found suffering from lumbago and physically unfit to proceed with the duties of a juror. The court thereupon discharged the said Victor from further service, and thereafter ordered the clerk to issue an open venire to the sheriff to summon five additional talesmen from the body of the county. The jury was completed by the selection of one of these talesmen to take the place of Victor.

An additional peremptory challenge was allowed each to the state and defendant. The state waived such challenge but the defendant exercised his by excusing one of the original eleven.

Defendant now claims that the procedure followed was not in compliance with the statute, and the jury thus impaneled to try him was not a legal jury.

That defendant, after the discharge of Victor, was entitled to nine peremptory challenges instead of the one allowed, as the statute provides for the reimpaneling of the entire jury under such circumstances. The statute involved (Comp. St. 1921, § 2718) reads as follows:

“If, before the conclusion of a trial, a juror becomes sick, so as to be unable to perform his duty, the court may order him to be discharged. In that case or in the event of the death of a juror a new juror may be sworn, and the trial begin anew, or the jury may be discharged, and a new jury then or after-wards impaneled.”

Counsel contend that, because the statute uses the words “and the trial begin anew”, construed in connection with the holding of this court in the cases of Caples v. State, 3 Okla. Cr. 73, 104 Pac. 493, 26 L. R. A. (N. S.) 1033, and Simpson v. State, 4 Okla. Cr. 490, 114 Pac. 752, the trial in a criminal case begins when the jury are1 called into the box to be examined, that the effect of such discharge of the juror Victor was a beginning anew of the trial; that is, it reopened again the examination of the entire jury so as to entitle the defendant to the exercise of nine peremptory challenges from that time forward.

While it is true that, in the cases above cited, this court held that the trial in a criminal ease commenced when the jury was called into the box to be examined as to their qualifications, it is plain we think, from the context of the statute here under consideration, that the Legislature never used the words “and the trial begin anew” with any such meaning. No good purpose could be served by reimpaneling the entire jury and reinvesting the defendant with nine additional challenges just because one juror had been discharged on account of sickness before the taking of any testimony. The statute leaves it discretionary with the trial court either to discharge the entire jury or else to swear only one new juror in the place of the one discharged. In the event the trial court sees fit to discharge the entire jury, the statute provides “and a new jury may then be or afterwards be impaneled.” So it is clear that the Legislature distinguished between the impaneling of an entire new jury and the swearing only of one juror. In the latter instance the statute says “that the trial begin anew,” which evidently means in this instance that if any testimony has been heard that it shall be given again for the benefit of the new juror. Otherwise the statute would have simply read “in that case the jury shall be discharged and a new jury then or after-wards impaneled.”

In the case of Turner v. Territory, 15 Okla. on page 561, 82 Pac. 650, the Supreme Court of the territory approved of the procedure followed in this case, and this court assents to the views expressed by the territorial Supreme Court in the Turner Case.

It is also contended that the trial judge coerced the jury to return a verdict of guilty in this ease. An examination of the record does not support the conclusion of counsel that the conduct of the trial judge amounted to acts of coercion. The jury had the ease under consideration from late Saturday night until the following Wednesday morning, before a verdict was returned. In the interim the trial court called the jury into court and inquired if there was any probability of reaching a verdict, and, on being informed in the negative, told the jury that the case was one of importance both to the state and to the defendant, and that the jurors should reason together among themselves and arrive at a verdict if possible, and then instructed the jury to return to the jury room for further consideration of the case. The language employed by the trial judge in thus admonishing the jury was not calculated to compel the jury to return a verdict. In fact, the jury remained in session for a considerable length of time subsequent to the last time the court communicated with them. The mere fact that the court kept the jury together for the length of time the jury was kept together did not of itself amount to an act of coercion, because this court has repeatedly held that the time during which a jury shall be kept together for deliberation is a matter of discretion with the trial court.

Counsel also contend that the trial judge was prejudiced against this defendant to such an extent that he could not give the defendant a fair and impartial trial. There is nothing properly incorporated in the record for review by this court on this assignment. However, by way of comment, we are constrained to state that the conduct of the trial judge throughout the trial in all the rulings made, with the possible exception of the exclusion of what was purported to be the dying declaration of Vanderpool, was more favorable to the defendant than to the state.

Other errors are assigned as grounds for reversal of this judgment, but an examination of the record discloses that they were either such as were waived in the trial or else possess no substantial merit. It would unnecessarily extend this already long opinion to give minute attention to such assignments.

It is sufficient in conclusion to say that the writer of this opinion has carefully examined this voluminous record and the able and exhaustive brief of counsel representing this defendant, and the other members of the court concur with him in the opinion that this defendant was afforded a fair and impartial trial, and that no error is urged sufficient to authorize a reversal of the judgment.

For reasons stated the judgment is affirmed.

BESSEY and DOYLE, JJ., concur.


text:
    L. J. BOHANNAN v. STATE.
    No. A-4062.
    Opinion Filed July 2, 1923.
    (215 Pac. 1078.)
    (Syllabus.)
    1. Intoxicating Liquors — Evidence not Sustaining Conviction for Unlawful Transportation. In a prosecution for unlawfully transporting intoxicating liquor,' testimony reviewed, and held insufficient to constitute a conspiracy, and insufficient to support the conviction.
    2. Evidence — Declarations of Defendant, after Offense, in Absence of Codefendant, Admissible Against Declarant Alone. Dec. larations of a defendant, made after the offense had been committed, in the absence of a eodefendant, are admissible against himself, but inadmissible against the other defendant.
    Appeal from County Court, Delaware County; W. H. Martin, Judge.
    L. J. Bohannan was convicted of a violation of the prohibitory liquor law, and he appeals.
    Reversed.
    T. M. McCombs, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

Appellant, L. J. Bohannan, was convicted on a charge of transporting intoxicating liquor, and his punishment fixed at a fine of $50 and 30 days’ confinement in the county jail.

The information charges Sam Maxwell, Jack Keteher, Alex Hurley, Wm. Maxwell, and appellant with conjointly conveying 2 1-2 gallons of whisky from a point in Adair county unknown to appellant’s store in the town of Stilwell. Defendant Sam Maxwell entered a plea of guilty. The other defendants were jointly tried. When the state rested, defendants Alex Hurley and Wm. Maxwell were discharged. The' jury found Jack Keteher and appellant guilty. Defendant Keteher waived time for sentence and right to appeal, and on said day was sentenced. Prom the judgment rendered on the verdict, defendant Bohannan appeals.

The evidence shows that two of the defendants drove into Stilwell in a wagon and stopped in front of a blacksmith shop, and one of the defendants carried a box into appellant’s store; about an hour later the city marshal and a deputy entered the store and found the box. As a witness in his own behalf, defendant Bohannan testified:

“I was sitting reading a paper. Sam Maxwell stepped in and asked if he could leave a box. I said, ‘All right; ’ he said, ‘I will go back and feed my team;’ and I guess it was an hour before he came back and Keteher was with him. I sold them an item or two, and as they walked out the city marshal and Sam Adair came in. The marshal told Adair to hold these two fellows, and he asked me, ‘Did these boys bring a box in here?’ I said, ‘One did;’ he said, ‘Where is it?’ I said, ‘Behind the counter.’ He took the box and broke the lid off; there was some half gallon jars in it. I do not know what they contained; I never tasted or smelt it; they said it was corn whisky. I had no understanding with Sam Maxwell, nor no one else, to bring that whisky in; when he brought the box in I did not know what was in it. People frequently bring in boxes, packages, and different articles. I never ask what is in their packages. I never saw Maxwell but once before in my life. I had no understanding with' him to bring any whisky in, and I had no arrangement to buy any whisky. ’ ’

The errors assigned are: The verdict is contrary to law and the evidence, and that the court erred in admitting incompetent and prejudicial testimony.

It appears that the state was permitted, over the objection of the defendant, to introduce in evidence declarations made by defendant Sam Maxwell to Watt Daugherty deputy city marshal, after the defendants had been arrested. The declarations, in the language of the witness Daugherty, were as follows:

"They left me on guard. I had a conversation with Sam Maxwell about his arrest when I took him to supper. He said he had hard luck; that he got caught with some whisky, and said, if Bohannan had paid them when they brought it in, they would not have been caught. He said that ‘old Bo’ was out rustling the money to pay for the whisky they had in there; that is how they came to get caught. He also said that it was not the first time that he had brought a batch to Bohannan. Mr. Bohannan was not present and did not hear the conversation, and so far as I know knew nothing about it. ’ ’

To the admission of this evidence the defendant excepted, and the action of the court in this respect is well assigned as error. The declarations of a conspirator or accomplice are receivable against his fellows, when they accompany or explain acts done in pursuance of a concerted criminal purpose, if made during the pendency of the common criminal enterprise, if made at a subsequent period, and merely narrative of past occurrences, they must be rejected. 1 Greenleaf, Ev. (14th Ed.) par. 111; Sturgis v. State, 2 Okla. Cr. 362, 102 Pac. 57; Wells v. State, 5 Okla. Cr. 22, 113 Pac. 210; Burns v. State, 8 Okla. Cr. 554, 129 Pac. 657; Washmood v. U. S., 10 Okla. Cr. 254, 136 Pac. 184.

The testimony objected to was hearsay, was after the offense, if any, had been committed, and, even if the conspiracy had existed, it was not admissible. For the error of the trial court in admitting this testimony the judgment will be reversed. We also think that the evidence is wholly insufficient to constitute a conspiracy, and insufficient to sustain the conviction.

The judgment of conviction is therefore reversed.

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


text:
    WILLIAM OTTO ALLEN v. STATE.
    No. A-4078.
    Opinion Filed July 7, 1923.
    (216 Pac. 1117.)
    Appeal from District Court, Alfalfa County; J. C. Robberts, Judge.
    William Otto Allen was convicted of assault with a dangerous weapon, and he appeals.
    Affirmed.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, William Otto Allen, was convicted in the district court of Alfalfa county of the crime of assault with a dangerous weapon and punishment fixed at imprisonment in the state penitentiary for a period of two years. Judgment was rendered on the 16th day of March, 1921, and the appeal lodged in this court on the 14th day of September, 1921. No brief has been filed in behalf of plaintiff in error, and no appearance was made to orally argue the cause at the time same was submitted. Rule 9 of this court (12 Okla. Cr. viii, 165 Pac. x) provides: “Whenno 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.” After an examination of the pleadings, the instructions of the court, and the judgment and sentence, the court finds that no prejudicial error occurred sufficient to authorize a reversal of this judgment, and the same is therefore affirmed.


text:
    CHARLEY RICHARD v. STATE.
    No. A-4072.
    Opinion Filed July 7, 1923.
    (216 Pac. 484.)
    (Syllabus.)
    1. Trial — Defining Reasonable Doubt not Approved. The practice of trial courts in attempting to define the term “reasonable doubt” is not approved.
    2. Homicide — Province of Jury in Determining Degree of Cirime not Disturbed, Where the state’s evidence is sufficient, if believed, to authorize a conviction of the defendant of murder, and the defense interposed was justifiable homicide in self-defense, and the trial court submitted the cause to the jury on the issues of defendant’s guilt of either murder or manslaughter in the first degree and on justifiable homicide in self-defense, a conviction for murder will not be disturbed on appeal, as it was the province of the jury to determine the .degree of felonious homicide of which the defendant was guilty, if any.
    Appeal from District Court, Choctaw County; G. M. Barrett, Judge.
    Charley Richard was convicted of murder, and he appeals.
    Affirmed.
    See, also, 18 Okla. Cr. 715, 194 Pac. 1119.
    Warren, Warren & Warren, for plaintiff in error.

      George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

On the 14th day of January, 1921, the county attorney of Choctaw county filed in the district court of said county an information charging, in substance, that one Charles Richardson did in Choctaw county, on or about the 20th day of November, 1920, commit the crime of murder by shooting one S. O'. Johnson with a premediated design to effect the death of said S. C. Johnson,, inflicting certain mortal wounds in and upon the body of said Johnson, from which mortal wounds the said Johnson did die. The complete allegations of the information will not be incorporated in this opinion, as the sufficiency of the information is not attacked.

On the 7th day of March, 1921, the defendant was arraigned on said charge, and declared his true name to be Charley Richard, and pleaded not guilty to the charge, and was served with a copy of the information and a list of the witnesses to be used in chief against him, together with their post office addresses.

On the 10th day of March, 1921, both the state and defendant announced ready for trial, and a jury was duly impaneled and sworn to try the cause, and on the 11th day of March, 1921, after the conclusion of the evidence and argument of counsel on both sides, the jury returned into open court a verdict finding the defendant guilty of murder as charged in the information, and assessing punishment at imprisonment in the state penitentiary, for life. Motion for a new trial was in due time filed and overruled, and on the 25th day of March, 1921, the court rendered judgment in accordance with the verdict. Petition in error and case-made were filed in this court on the 9th day of September, 1921. The petition in error contains eight assignments of error. Consideration will be given to those assignments relied upon for a reversal and supported by argument and authority in the brief filed in behalf of plaintiff in error.

It is first contended that the trial court erred in giving an instruction defining the term “reasonable doubt.” The practice of trial courts in attempting to define the term “reasonable doubt” has repeatedly been condemned by this court. Any definition attempted to be given for such term more often results in confusion than otherwise. The instruction given in the instant case was identical with that given in the case of McDaniel et al. v. State, 8 Okla. Cr. 209, 127 Pac. 358, and the case of Mayfield et al. v. State, 17 Okla. Cr. 503, 190 Pac. 276, and also in the case of Thompson v. State, 16 Okla. Cr. 716, 184 Pac. 467, an instruction almost identical with that here given was held not to be reversible error.

While we adhere to the former opinions of this court that the better practice is not to. attempt to define the term “reasonable doubt,” nevertheless the instruction here given is not open to the objection urged against instructions defining such term which have been condemned by this court and held to be reversible error. For a discussion of the reasons why the instruction in this case is held not to be reversible error, see body of opinion in Mayfield v. State, supra.

Next it is contended that there is no evidence in the record tending to prove that the person shot and killed by the defendant was S. C. Johnson, the identical person alleged to have been killed. An examination of the record discloses sufficient evidence, in the absence of any controversion, that the person killed by the defendant was the identical person alleged to have been killed as charged in the information. Had this been a controverted issue there might be some merit in the contention of counsel for plaintiff in error.

Finally it is contended that the evidence is not sufficient to support the verdict and judgment. With this contention we cannot agree. The evidence by the state’s witness clearly proved the defendant guilty of murder, and the defendant and his witnesses, while attempting to justify the killing on the ground of self-defense, disclosed no circumstances indicating either a real or apparent danger to the defendant at the time he fired the fatal shot.

It is urged, however, in this connection that the defendant is only guilty of manslaughter in the first degree. The trial court submitted the cause to the jury on the issues of defendant’s guilt of either murder or manslaughter in the first degree and on justifiable homicide in self-defense. The jury decided the issue adversely to the defendant’s contention here urged, and, as there is ample evidence in the record to support the verdict, if the state’s witnesses are to be believed, the verdict and judgment will not be disturbed. For reasons stated the judgment is affirmed.

BESSEY and DOYLE, JJ., concur.