text:
    COLUMBUS FOSTER v. STATE.
    No. A-10289.
    Nov. 1, 1944.
    (152 P. 2d 929.)

      3. C. Franklin, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for defendant in error.
   BAREFOOT, J.

Defendant, Columbus Foster, was charged in the district court of Tulsa county with the crime of murder; was tried, convicted, sentenced to serve a term of life imprisonment in the State Penitentiary, and lias appealed.

For reversal of this case, it is contended:

“1. That the court committed reversible error in refusing plaintiff in error’s motion to suppress the purported confession of plaintiff in error.
“That the court committed reversible error in admitting said purported confession of plaintiff in error over the objections of plaintiff in error, and erred in not sustaining plaintiff in error’s motion to strike same from the consideration of the jury.
“2. That the court erred in not sustaining plaintiff in error’s motion for a new trial upon the grounds set out in said motion.”

In considering the first assignment of error, it is necessary to state briefly the facts, as revealed by the record.

Defendant, Columbus Poster, was charged with killing Andrew Jack Knowles, in a gambling house in Tulsa, on June 29, 1941. The killing was the outgrowth of a dispute over 15 cents, in which the defendant charged the deceased with having failed to pay him the full amount of his winnings at the crap table which was being operated by deceased.

The gambling house was owned and operated by a negro by the name of Lorenzo Dozier. The deceased was operating the crap table for him. The building contained four rooms. In the first was a bar, to the west was a kitchen, to the north a dance hall, and to the west of the dance hall a room where gambling was conducted. A large opening -was between the dance hall and the gambling room, and a door from the gambling room to the kitchen.

On the morning of the killing, defendant went to the premises for the purpose of gambling. He had been there for several hours, and had made bets and won, and had a dispute as to the amount of money he was entitled to receive. He claimed he should have 15 cents more than was paid. Several of the parties finally showed him that he had received all he was entitled to, under the rules of the game. Ike Myers, one of the parties assisting in the operation of the game, had. thrown defendant 15 cents, bnt told him he was not entitled to the same. Defendant refused to take the money, but said, “You ought to quit taking people’s money here”; and also remarked: “Well I am going to break every damn one of you anyhow.”

Defendant then left the premises, but returned in 10 or 15 minutes. A number of witnesses who were present when he was there the first time, and also when he returned, testified for the state. It is unnecessary to unduly lengthen this opinion by giving their evidence at length. Some saw one part, others saw more. Some were present from the beginning to the end, and others only saw the first part of the difficulty. There were some minor conflicts as to just what was said by the defendant, both at the time of the controversy over the money, and when he returned. However, all of the witnesses agreed on the material matters surrounding the killing of the deceased. They testified that when defendant returned to the gambling house he was armed with a 45 automatic six-shooter. That immediately upon entering the gambling hall from the large entrance from the dance hall, he fired one shot at the deceased, who was sitting behind the crap table. That the deceased ran to the entrance into the dance hall, and the defendant followed him, firing one shot at him just as he reached the door. That deceased proceeded to the sidewalk, and fell. That defendant fired one shot before he fell, and two shots while he was lying on the sidewalk.

Dr. R. W. Motley, who examined the body of deceased, testified:

“Q. Just tell the jury what wounds you found on the body, and where they were located. A. The first wound I found, it was a bullet, gunshot wound at the base of the brain. The bullet entered from the rear and passed up through the skull. It entered back here, passed through, and the second one I examined wasn’t of much importance to me, was in the buttocks. There were two that I examined. Q. The one in the buttocks, could you tell whether that was an entrance or exit hole? A. I could not find any exit. I found an entrance, but no exit with the one in the buttocks, but I did find an exit of the one in the skull.”

Defendant produced no eyewitness to the shooting other than himself. He corroborated the other witnesses, except that he testified that he left the premises to deliver some laundry to two persons. That he went to his home and got the laundry and delivered it prior to returning to the gambling hall. That he had his pistol with him when he was at the gambling hall in the first instance, and also when he returned. That as he entered, the deceased reached over the table and grabbed him, and that as they scuffled his gun went off accidentally. He did not know whether this shot hit the deceased, but did not think it did. He did not remember firing any other shots. When he saw deceased lying on the sidewalk, he went across the street and entered his automobile and went to the country and stayed all night in a field, but gave himself up to a deputy sheriff the next morning. When the officer went after him, he was accompanied by lawyer Ben Franklin, who defended him at his trial. The officer told defendant that he would have to take him before the county attorney. He took him to the office of the county attorney, and he there made a written statement to Mr. Simms, assistance county attorney. Reference will hereafter be made to the statement.

The evidence also reveals that defendant had been convicted in Tulsa county of the crime of larceny of an automobile, and had served a term in the State Penitentiary therefor; and that three empty shells from a 45-calibre pistol were found on the sidewalk near where deceased fell.

The contention is made that the statement of the defendant to the assistant county attorney was involuntary, and was therefore inadmissible. Defendant testified that the officer to whom he surrendered told him it was necessary to take him before the county attorney. We have carefully read the record with reference to the circumstances under which this statement was made, and have come to the conclusion, as did the trial court, that it was a voluntary statement, under the law of this state, and therefore admissible.

The statement is as follows:

“Statement of Columbus Foster, regarding the killing of Jack Knowles, Sunday, June 29, 1941, about 1 p.m., made in the presence of Josh Webb, deputy sheriff. Questioned by M. S. Simms, assistant county attorney. Recorded by Louise Jacobia.
“Q. What is your name? A. Columbus Foster. Q. Where do you live? A. 612 East Pine street. Q. How old are you? A. 33. Q. Are you married? A. No, sir. Q. Just tell in your own words what happened yesterday at 1408 North Madison street. A. I went there and went to gambling. They was gambling and I just got in the game. Q. About how many were in the game? A. Twelve or fifteen. Q. Did you know Jack Knowles before yesterday? A. Yes. Q. Was he in the game? A. He was running the game. Q. After you got in the game, what happened? A. After we got to gambling — I had a dollar bill and I bet the dollar bill that the dice pass and they did pass, and then I just bet the change that the dice hit again, and so they did, and by him running the game he always take a nickel off his bet, and I was due to have $3.90, and when I got it there was but $3.75, that made him cut a quarter off of two rolls of dice. I asked him for my money. He just said I had all that was due me. I tried to show him I was due $3.90. He said that was all I was going to get. So I told him, ‘You all should stop taking people’s ‘money.’ So I went home and got my gun, a 45 automatic. I came back in. I just came back to gamble some more, and I guess he must have thought I came back to fight him or something. So when I came in the door he came running towards me, then he turned to run from me, that is when I made the first shot. Q. Do you remember how many times you shot him? A. No, sir, I don’t. Jack Knowles was going out the door when I made the second shot. Q. Did your second shot hit him in the back? A. I don’t know whether it was the second one or first one. Q. After the shot, what did you do? A. Run out to my car and the car wouldn’t start, so I pushed the car off. I throwed the gun out on the street up there on Peoria. Q. Are you making this statement voluntarily, of your own free will, in order to clear up this thing? A. Yes, I am making a statement just telling you how it was.
“Columbus Foster.
“Subscribed and sworn to before me this 30th day of June, 1941.
“Seal Louise Jacobia, Notary Public.
“My commission expires Aug. 14, 1941.”

On cross-examination the defendant admitted that the statement was made “to clear the matter up,” and he desired to make it. He admitted that practically every statement therein was true, except that he denied he went home and got his gun, and that he shot the man while he was running. He admitted that he threw the gun away soon after he left the scene of the killing, and that he did so because he knew he had killed a man, and was afraid to be found with it. He claimed that the assistant county attorney did not tell him he was entitled to a lawyer, but admitted that the lawyer who finally represented him was with him from the time he gave himself up until he was taken to the county attorney’s office. However, he testified that he had not employed him at that time, and that he had had no conversation with him in reference to the killing.

With reference to the law as to voluntary and involuntary statements, we have had occasion in recent cases to review the decisions of this court pertaining thereto, and to forcibly express our views as to the duty of the courts with reference to considering tliis question. It is unnecessary to unduly lengthen this opinion by quoting from them, and we merely cite the cases. Lyons v. State, 77 Okla. Cr. 197, 138 P. 2d 142; Prather v. State, 76 Okla. Cr. 385, 137 P. 2d 249; Fry v. State, 78 Okla. Cr. 299, 147 P. 2d 803. The Lyons case, supra, was appealed to' the Supreme Court of the United States, where it was affirmed 322 U. S. 596, 64 S. Ct. 1208, 88 L. Ed.-.

As stated in these cases,-this is a question of law for the court, and the jury should be excused when the question is first suggested, and in the absence of the jury, after hearing the facts and circumstances surrounding the securing of the statement, the court should determine as a matter of law whether the statement is voluntary or involuntary. If voluntary, it is admissible. If involuntary, it is inadmissible. This procedure was followed by the court in the instant case, and from an examination of the record, we are of the opinion that, as a matter of law, the trial court was right in holding that the statement made by the defendant was voluntary.

However, we want to again reiterate that public officers should be doubly careful in taking statements from defendants before the filing of charges, or before they have bad an opportunity to liave counsel, either of their own choice or appointed for them by the court. The statutes of this state provide for the- taking of a defendant before a magistrate after his arrest, and this statute should be strictly followed. The Supreme Court of the United States, in the late decisions, has been very alert in condemning this practice in the federal court, and in the state courts where force or violence is used by officers in procuring statements in contravention of the due process clause of the Federal Constitution. See the case of McNabb et al. v. United States, 318 U. S. 332, 63 S. Ct. 608, 87 L. Ed. 819, and cases cited therein.

The record in the instant case does not show any force or violence on the part of the officers, but, on the contrary, shows there was no violence, and that the defendant desired to make the statement, “to clear the matter up.”

The only error revealed by the record in this case is that of the assistant county attorney in his opening statement in making reference to the statement made by the defendant. Objection was made thereto, and the court overruled the objection and permitted the assistant county attorney to state to the jury what the written statement contained. This was improper, for the reason that the court at that time had not had the opportunity to bear the evidence and determine the question as a matter of law, whether the statement was a voluntary or an involuntary one. If the court, after hearing the evidence, had determined as a matter of law that the statement was an involuntary one, and therefore inadmissible, this would have been a very serious error; but the court having found that the statement was voluntarily made, and the jury having been permitted to hear the statement read, we are of the opinion that this was not reversible error.

It is next contended that the court erred in refusing to grant the motion for continuance because of the absence of the witnesses Ella Field and Tex Hurvey.

This motion was filed on December 2, 1941, and set up the absence of the above witnesses, and what their evidence would be. The motion was overruled by the trial court on December 4, 1941, at which time both sides announced ready for trial. No evidence was offered by defendant to sustain the motion, and no subpoena was offered in evidence at this time to show that either of the witnesses had been subpoenaed to appear. There was no evidence of diligence shown by the defendant to secure the attendance of either of these witnesses.

After the case had been on trial for several days, and on December 6, 1941, after all of the testimony had been taken, counsel for defendant offered in evidence three subpoenaes. The first was a subpoena for Mrs. Ella Field and Charley (Tex) Hurvey, received by the sheriff of Tulsa county on October 10, 1941, commanding these witnesses to appear on October 13, 1941. The officer’s return shows the same to ha,ve been served in person on the witness Ella Field, and on Charley (Tex) Hurvey by leaving a copy at his usual place of residence. The second was a praecipe for a subpoena for Ella Field to appear on December 2, 1941. This was filed on December 1, 1941. The third exhibit was a subpoena issued by the court clerk of Tulsa county to Charley (Tex) Hurvey and another party, and the officer in making his return recites that he served the same on the “within named witness,” “I cannot find the within named Charley (Tex) Hurvey in my county.” This return was filed December 2, 1941. There is nothing to show any diligence on the part of defendant to secure the attendance of these witnesses. The praecipe for subpoena ivas not filed until the day before this case was set for trial. There was no proof offered to show the whereabouts of the witnesses, and no attachment was asked for or issued for either of them, and there was no proof that they could be procured at a later date. In addition to this, the affidavit for continuance revealed that the testimony of these witnesses was Avith reference to defendant delivering a package of laundry during the time he left the gambling hall and his return thereto. This Avas not a material point involved in the killing of deceased, and Ave are of the opinion that this evidence would in no way have caused a change in the result of this trial. For the reasons above stated, we are of the opinion that the trial court did not abuse its discretion in overruling the motion for continuance filed in this case.

Finding no error in the record, the judgment and sentence of the district court of Tulsa county is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


source: Caselaw Access Project

author: JONES, P. J.

license: Public Domain

text:
    Ex parte ELMER COLLINS.
    No. A-10565.
    Nov. 15, 1944.
    (153 P. 2d 243.)

      Elmer Collins, pro se.
    Randell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Abty. Gen., for respondent.
   JONES, P. J.

This is an original proceeding in habeas corpus where the petitioner, Elmer Collins, seeks to secure his release from confinement in the State Penitentiary, at McAlester.

The Attorney General has filed a demurrer to the petition calling our attention to the fact that in the cases of Ex Parte Collins, 76 Okla. Cr. 163, 135 P. 2d 61, and Collins v. State, 59 Okla. Cr. 18, 55 P. 2d 790, the exact contention now presented by petitioner was in each of these cases considered and decided adversely to petitioner.

The verified petition complains of confinement of defendant because he was committed to the penitentiary to serve 37 years for the crime of attempted rape in the first degree. This same issue was presented in the two cases involving petitioner herein above cited. Our decisions in those cases were adverse to the contention of petitioner. The writ of habeas corpus is denied.

BAREFOOT, J., concurs. DOYLE, J., not participating.


author: BAKEFOOT, J.

text:
    LAWRENCE ANDERSON v. STATE.
    No. A-10309.
    Nov. 15, 1944.
    (153 P. 2d 245.)

      Utterbaek & Utterbaek, of Durant, and F. L. Welch, of Antlers, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Marx Childers, Co. Atty., of Antlers, for defendant in error.
   BAKEFOOT, J.

Defendant, Lawrence Anderson, was charged in the district court of Pushmataha county with the crime of larceny of livestock, towit, one red cow; was tried, convicted, sentenced to serve a term of ten years in the penitentiary, and has appealed.

For a reversal of this case, defendant lists four assignments of error, as follows:

“(1) Overruling motion and supplemental motion for new trial.
‘‘ (2) Verdict and judgment of the court are not sustained by the evidence or the law.
“(3) Error of the court in refusing to grant the motion of the defendant for instructed verdict, which was made at the close of the introduction of the evidence by the state.
“(4) Error of the court in refusing to grant the motion of the defendant to instruct the jury to return a verdict of acquittal at the close of all the evidence.”

All of these alleged errors may be considered together.

It is urgently contended that the evidence is insufficient to sustain the judgment and sentence, for the reason that it is based entirely upon the evidence of an accomplice, and that his testimony is not corroborated as required by the statutes and the laws of this state.

A proper consideration of this issue necessitates a short review of the evidence and the law applicable.

The statute with reference to the necessity of corroboration of an accomplice is 22 O. S. 1941 § 742, which is as follows:

“A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

This statute has been before this court for construction in so many cases we shall not attempt to review them, but cite a few where the facts are somewhat similar to those here involved: Martin v. State, 12 Okla. Cr. 510, 159 P. 940; Jones v. State, 10 Okla. Cr. 216, 136 P. 182, 137 P. 121; Smith v. State, 40 Okla. Cr. 88, 267 P. 283; Gourley v. State, 49 Okla. Cr. 24, 292 P. 873; Davis v. State, 18 Okla. Cr. 453, 196 P. 146; Brewer v. State, 63 Okla. Cr. 389, 75 P. 2d. 901; Teague v. State, 64 Okla. Cr. 369, 81 P. 2d 331; Plaxico v. State, 78 Okla. Cr. 353, 148 P. 2d 201.

Tlie facts in this case, as testified to by Harold Harris, the admitted accomplice, were that in the summer of 1940 lie was a resident of Pushmataha county, residing north of Rattan. That Ray Benningfield lived near him. That during the summer he was riding with the defendant in his pick-up truck between Antlers and Rattan, and that defendant “asked me did I reckon we could steal some cows and get by with it.” And that defendant further stated: “I know where some pretty good deals are, we might steal them and get by with it.” That defendant mentioned the names of parties who owned cattle and that he knew the managers of some of the ranches where he might pay off and get by with it. That defendant told the witness that if he and Ray Benningfield would get up the cattle and let him know, he would haul them in his truck, take half the money and give them the other half. Harris testified that he put the proposition up to Benningfield, who agreed to help him, and they were to divide the money they received equally.

In pursuance of this agreement, he testified to the taking of lour truckloads of stolen cattle to the stock market at Port Worth, Tex., all hauled in defendant's pick-up truck. The records introduced in evidence showed these truckloads were received and sold at Port Worth as follows:

Aug. 22, 1940, L. Anderson, 1 bull.
Aug. 22, 1940, Harold Harris, 4 head.
Aug. 28, 1940, L. A. Anderson, 8 head.
Sept. 3, 1940, H. Harris, 5 head.
Sept. 17, 1940, H. Harris, 8 head.

All of these shipments were sold in the name of Harold Harris, with the exception of one bull in the first load, which was the individual property of the defendant and was sold in his name; and the shipment of August 28, 1940.

When the first load was taken to Fort Worth, it consisted of one bull, the individual property of the defendant, two iieifers, one cow, and one calf. One heifer was the individual property of the witness, and the other three liad been stolen by the witness and Benningfield. Defendant came in his truck to a place near where the witness Harris lived and hauled the cattle to Fort Worth. Defendant, Anderson, according to the witness, accompanied the shipment in person. He testified that the defendant got about §72 out of the proceeds of the sale of the five head of cattle — all that the bull brought, one-half of the price of the three cows that were stolen, and witness paid him §10 on his individual heifer. He testified that this money Avas divided in Fort Worth.

The record shows that one shipment was sold in Fort Worth on August 28, 1940; that it consisted of eight head of cattle, sold in the name of L. A. Anderson, and that the net proceeds were §182.31. The witness Harris got the check for this shipment, and the defendant’s brother got it cashed in Forth Worth, and it was divided in the truck between Denton and Forth Worth, the defendant taking one-half and the witness and Ray Benningfield taking one-fourth each. Another shipment contained eight head. They were sold in Fort Worth on September 17, 1940, for the sum of §220.88, in the name of H. Harris.

As to the load containing the “one red cow, the property of Ben Johnson,” described in the information, the witness testified that there were five head in the truck, all of them having been stolen. He testified that he did not go to Fort Worth with this load, but that defendant took them, and that a few days thereafter he saw the defendant in Antlers, and that defendant gave him a check for $84.92, on the First National Bank of Antlers, for his one-half of the proceeds of this shipment. That he cashed the check, and gave one-half of the proceeds to Ray Benningfield.

It may here be mentioned that the state' introduced in evidence the check of the Shirley Commission Company of Fort Worth, payable to IT. Harris, for $104.85, the proceeds of the shipment containing the cow which accused is charged with stealing, less $5 cash drawn by the defendant as shown by the sale sheet. This check was deposited in the First National Bank of Antlers to the credit of L. & P. Anderson (defendant and his wife) on September 4, 1940, the day after the sale, as shown by the check and the commission records. Evidence was introduced of a debit item against the account of defendant in the sum of $84.92 on September 5, 1940. The check to the witness Harris, given by the defendant, was not introduced in evidence. The witness denied endorsing the check of the Commission Company, which bore his endorsement. This was one of the issues passed upon by the jury. Admitted signatures of the witness were introduced, and from an examination of them, we are of the opinion that the jury was justified in concluding that he had endorsed the check. The same applies to the signature of defendant. The cashier of the First National Bank of Antlers testified that in his opinion it was defendant’s signature. It will be noted that the charge against defendant’s account in the bank, on September 5, 1940, is exactly one-half of the proceeds of the five cattle sold in the shipment.

. The witness Harris also testified that shortly after the fourth shipment he saw defendant, who told him things were getting pretty hot,- and that they were trying to catch up with them. That witness told defendant he had already quit, that he and Benningfield had talked it over as they went home and agreed to quit. That no more cattle were stolen by them.

This witness also testified that during the time he was stealing the cattle the defendant had furnished him a horse to ride. The defendant offered a number of witnesses with reference to the reason the horse was left with defendant. This question was not very material to the real issue involved.

The state offered in evidence a representative of the Texas Cattlemen’s Association of Fort Worth, Tex., who testified to the receipt of the cattle, and to the brands thereon. There was no issue as to this. Also the bookkeeper of the Shirley Commission Company, of Fort Worth, by whom the cattle were sold, and who issued the checks for the proceeds; together with the checks, and the account sales.

The sheriff of Pushmataha county testified to going to Fort Worth to make an investigation, and of defendant requesting that he be permitted to accompany him, which was done. That he later left Fort Worth and went to some other place to transact some business, and defendant told him he would return home. He testified of returning home and to charges being filed by the county attorney against defendant; of his search for defendant, and of locating him in El Paso, Tex. Defendant showed by his wife, who had obtained a divorce from him, that there had been family trouble prior to his leaving, and that this was the reason for his being away from home.

It is upon the above evidence that defendant contends there was no corroboration of the accomplice’s testimony, and the state contends there was.

When the state had rested, the court, after a hearing upon the demurrer, permitted the state to re-open its case and put on further testimony with reference to the deposit in the First National Bank of Antlers of the check for 1164.85, and also with reference to the signatures of defendant and the witness Harris, as above outlined. The demurrer to the evidence was then overruled.

The court stated at the time of overruling the motion for new trial, which was the same day the verdict was returned :

“Well, I feel as I did, I think now that there is in the record sufficient corroboration — there wasn’t any corroboration at all until the last witness and this man from Fort Worth testified, I forget his name, but as I view the testimony that corroborates the accomplice’s testimony. The evidence is that on the 3rd day of September, 1940, the stolen cow was sold in Fort Worth and on that date a check was issued for the stolen cow to the accomplice, and on the following day, the 4th day of September, the check was deposited to the credit of the defendant at the bank here at Antlers. It is undisputed that it is his, the defendant’s endorsement there on the check for the stolen cow, and that he got the proceeds from the stolen cow, there is testimony that the next day there is a debit in the account of the defendant for exactly one-half, lacking one-half a cent, of the proceeds of the stolen cow. Now I believe that that testimony is sufficient, to tend to connect the defendant to the commission of the crime. As I understand the law, all that is necessary is testimony that tends to connect the defendant. I believe that the evidence tends to connect him with it. On the grounds that there was incompetent evidence, I don’t think there is any merit in that and there were no objections to the instructions.”

In consideration of this evidence it may be stated that Ray Benningfield was used as a witness by the defendant and he denied in toto the evidence of the witness Harris. He denied assisting in the stealing of any cattle, receiving the proceeds and the division of any money between himself and the witness Harris. He further testified that during the trial of the case he had talked with Harris and that Harris had told him: “I want to see you get out of this, I am your friend, and haven’t got anything against you. Anderson double-crossed me, I want to try to stick him. Marx (the county attorney) told me to get up and testify against you and Anderson, that they wouldn’t prosecute you.” The witness Harris denied this conversation.

The record further reveals that the witness Harris had entered a plea of guilty to the larceny of the cow described in the information, and had received a sentence of three years in the penitentiary. He had been held as a witness, and liad never gone to the penitentiary. On a supplemental motion for new trial, it was shown that the witness Harris was re-sentenced, and the sentence was suspended, and he had been discharged.

Under the record as above stated, the only issue for this court to decide is, Was the evidence of the witness Harris sufficiently corroborated under the law to permit this judgment to stand?

It is not for us to say that we would have done had we been jurors and heard the whole of the evidence, as presented by the record. As the trial court stated, the whole question hinges upon the testimony with reference to the depositing in the First National Bank of Antlers of the check for $164.85 on September 4, 1940, the amount of which was exactly that of the proceeds of the shipment of cattle that contained the red cow stolen from Ben Johnson, less the $5 cash advanced the defendant; and the further evidence of a debit for exactly one-half of this amount charged against the account of the defendant on September 5, 1940, the day after this deposit was made. The defendant not having taken the witness stand, as was his right under the law, this evidence remains unexplained. To our mind, the jury was justified in drawing the conclusion therefrom that it was the identical check received for this shipment of cattle, including the cow of Ben Johnson, and that the item of debit was the check given by defendant to the witness Harris, as he testified.

This evidence, coupled with other facts and circumstances appearing in the record, is, in our opinion, sufficient under the law to corroborate the evidence of the witness Harris. The question as to whether his testimony w'as true or false was a question for the determination of the jury.

It may here be said that the record reveals that this defendant had, prior to the charges here preferred, been a citizen of Bryan county, Okla. The district judge, the sheriff, the assistant county attorney, and other prominent citizens of that county testified to the good character and reputation of defendant as a citizen of Bryan county. He had lived in Pushmataha county several years, and a number of prominent citizens of that county testified to his good reputation and character while a citizen of that community.

The judgment and sentence in this case was for a period of ten years in the State Penitentiary. This punishment was the maximum under the law, and was assessed by the jury. It is earnestly contended by counsel for defendant that this verdict was rendered under passion and prejudice, caused by the closing argument of the county attorney, when he said:

“But gentlemen of the jury, let me impress upon you this thing, now I have tried these cattle thieves before here and some of them have been convicted and some turned loose. You know as a matter of common knowledge in all these counties in southeastern Oklahoma and northeastern Texas that there has been cattle stealing and sometimes the cattle thieves are convicted and sometimes they get loose. Gentlemen of the jury, you have got the ring-leader now, don’t let him get away.”

The Attorney General, in his brief, admits that this was not proper argument, when he says:

“The comment that the defendant ‘is the leader of them all, and you must not let him get away,’ was probably going a, bit strong. This statement is probably not justified by the record, but the rule is if error is committed it must be such as to deprive the defendant of a fair trial before it merits a reversal.”

The case of Greer v. State, 74 Okla. Cr. 286, 125 P. 2d 225, is cited. It is there said:

“Where guilt of defendant is clear, no defense is offered, and jury assesses maximum punishment because of passion and prejudice created by argument of county attorney, this court, in furtherance of justice, will modify sentence imposed.”

And the court further says:

“It would unduly lengthen this opinion to attempt to set forth the entire argument of the county attorney, but it consisted of an appeal to the jury to give the defendant the maximum penalty, because it was the first case on the docket and was the first whiskey case to be tried since the Fort Sill encampment was located at Lawton, and that he, the county attorney, wante_d the jury to make an example of the defendant so that there would be no selling of whiskey to the young soldiers who were coming to Lawton.
“It is evident that the punishment, which is the maximum that may be assessed in a liquor case, was reached by reason of the appeal made by the county attorney. All of the statements of the county attorney concerning the young soldiers in the encampment, and that a person had been killed on the highway by a young soldier who was. full of whiskey, were wholly outside of the record and should not have been made.
“'It is proper for the county attorney to prosecute criminal cases vigorously, but he should not press upon the jury any deductions from the evidence that are not reasonably legitimate. The argument herein was largely an appeal to the prejudice and passion of the jury.
“It is our conclusion that because of the inflammatory and prejudicial argument of the county attorney, the verdict of the jury and the judgment pronounced thereon is excessive and should be modified.
“We hold no sympathy for the defendant. The sign hereinabove referred to which was tacked on the wall of his place of business shows a positive disregard for the laws of our state. However, the law demands no' victims and where it is evident that the punishment assessed was largely arrived at because of passion or prejudice engendered in the case, it becomes our duty to fix such punishment as is commensurate with the facts disclosed by the record.”

We agree that the argument of the county attorney in this case was such as to cause prejudice and was improper. The defendant was given the maximum punishment of ten years in the penitentiary, by the jury. From an examination of the record as a whole, we are of the opinion that justice demands a modification of this judgment and sentence from ten years in the penitentiary to five years in the penitentiary.

As so modified, 'the judgment and sentence of the district court of Pushmataha county is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    WILLIAM HENRY COURTNEY v. STATE.
    No. A-10196.
    Nov. 15, 1944.
    (153 P. 2d 243.)
    For former opinion, see 148 P. 2d 485.
    E. Moore, of Coalgate, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

After the former opinion was rendered in this case, 148 P. 2d 485, 487, petition for rehearing was filed in which our attention was directed to page 55 of the case-made, which purports to be a copy of the appearance docket in which there is contained a recital as follows: “10-6-41. Demurrer overruled, exceptions allowed. Beady for trial.”

The former opinion of this court was based upon the fact that the demurrer which had been filed by defendant had never been called to the attention of the trial court, and, for that reason, since it had not been passed upon so as to give the trial court an opportunity to direct the correction of the defective information, this court treated the question as having been waived by the defendant. The Attorney General in his brief raised the contention that the demurrer had not been presented to the trial court for determination, and, for that reason, the alleged defects in the information were waived by defendant. No reply was filed to this ansAver brief, and it Avas not until the petition for rehearing Avas filed that our attention was directed to the recital in the appearance docket above shoAvn. The recitals in the transcript of the stenographic notes set forth in the former opinion led the Attorney General to believe that the demurrer had never been presented to the trial court, and this court when examining the record came to the same conclusion as the Attorney General that the demurrer had been filed but never presented. The copy of the appearance docket is one of the last pages in the case-made. There is no order in the record showing the disposition of the demurrer, but since it is noAV apparent as disclosed by the appearance docket that the demurrer Avas in fact presented to the trial court and overruled, we feel that the contention of the defendant should be sustained.

In our former opinion we stated:

“The allegation that defendant drove in a reckless manner, of course, was a conclusion of the pleader. Under the statute the defendant might have been guilty of any one of several different things while driving an automobile which would have constituted reckless driving. The particular acts which it is alleged the defendant committed should have been set forth, and no doubt if the demurrer had been called to the attention of the court, he would have directed the county attorney to have amended the information to have shown at what particular acts of the defendant the complaint was directed. However, the information is not so fundamentally defective that it will not support the judgment and sentence.”

A demurrer is the proper pleading to challenge the insufficiency of an information where it is contended that the facts alleged do not constitute a public offense. 22 O. S. 1941 § 504.

In Abrams v. State, 13 Okla. Cr. 11, 13, 161 P. 331, 332, it is stated:

“Since every person is presumed to be innocent until proved guilty, it logically follows that he must be presumed also to be ignorant of what is intended to be proved against him, except as he is informed by the indictment or information.”

The facts constituting the offense must be alleged in positive terms and not by way of mere legal conclusions. It is sufficient, however, if the facts inform the accused of the offense with such particularity as to' enable him to prepare for trial.

The facts herein show that defendant was proceeding down the highway about 40 or 45 miles per hour; that a truck Avith bright headlights Avas approaching the car of defendant; that defendant dimmed his lights to try to get the driver of the truck to dim the truck’s headlights, hut that the driver of the truck did not dim his lights; that the defendant slowed down some when he was blinded by the headlights of the approaching truck, but that, just as the on-coming truck passed, defendant crashed into the back of another truck going in the same direction as defendant, but which had not been seen by defendant because of the glaring headlights of the other truck.

This charge is predicated upon 47 O. S. 1941 § 92:

“Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead.”

Defendant contended that the truck into which he crashed did not have any tail-light or reflector on the rear and that under these circumstances, he was not guilty under the statute. Ordinarily, these questions raise an issue of fact for determination of the jury.

However, because of the error of the trial court in overruling the demurrer to the information and in view of the closeness of the case, the cause is reversed and remanded, with instructions to sustain the demurrer and for such further proceedings as the trial court deems proper.

BAREFOOT, J., concurs. DOYLE, J., not participating.


author: BAREFOOT, J.

text:
    GEORGE EAGAN v. STATE.
    No. A-10501.
    Nov. 22, 1944.
    (153 P. 2d 503.)
    Harold S. McArthur, of Tulsa, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and W. F. Gilmer, Jr., Co. Atty., of Tulsa, for defendant in error.
   BAREFOOT, J.

Defendant, George Eagan, was charged jointly with Fred Etheridge in the district court of Tulsa county with the crime of robbery; was tried, convicted, sentenced to serve a term of ten years in the penitentiary, and has appealed.

Defendant was unable to give bond pending appeal, and is now confined in the State Penitentiary, and for this reason his case has been advanced.

It is contended that the court erred in overruling a demurrer to the evidence, and the motion for a directed verdict, for the reason that the evidence is insufficient to •sustain the judgment and sentence.

It is revealed by the record that the defendant was jointly charged by information with Fred Etheridge, with conjoint robbery of T. 11. Bishop on May 19, 1943. The prosecuting witness was 54 years of age, weighed about 110 pounds and lived in Cleveland, Pawnee county, Olda. lie was a veteran of World War No. 1, and by reason of injury was unable to work. He walked with a cane, and wore a steel brace. He went to Tulsa from Cleveland on May 17th, and on the morning of the 19th he went to meet a Mend at the Central Bar in Tulsa. He went from there to a lumberyard to visit another friend, and returned to the Central Bar between 3 and 3:30 in the afternoon. He then met the defendant and Fred Etheridge, neither of whom he had ever known before. They engaged in conversation, and defendant bought six beers, and each of them drank two. Defendant and Etheridge then told the prosecuting witness they would buy him some whisky, and the three of them left the Central Bar together, going over a. viaduct. While crossing the viaduct they met a woman, whom prosecuting witness did not know, and the defendant spoke to her, saying “Hello, Lottie.” She answered, “'.Hello, George.” They proceeded only a short distance over the viaduct when Fred Etheridge stopped, and said to the prosecuting witness: “All right, this is as far as you are going to get, give it here.” The prosecuting witness asked “What?” and Etheridge answered, “You know what.” The prosecuting witness testified that Etheridge at that time “had his arm around my neck, and my neck he pulled back and his knee he had in my back.” He then proceeded to take the wallet from the inside pocket of the prosecuting witness, and take therefrom the sum of $6. He threw the wallet to the ground, and both the defendant, who had been standing about three feet in front of the witness, and Etheridge told him: “If you tell the coppers it will be too bad for you, we will get you.”

The defendant and Etheridge left the scene together, going east, and Mr. Bishop immediately notified the police, who came to the scene, and search was started. Later that night defendant and Etheridge and another party were picked up by the police and placed in jail. On the following day Mr. Bishop, the prosecuting witness, was taken to the jail, and there identified the two defendants as the parties who had robbed him the day before. They were identified from eight persons who were lined up by the officers.

The state also offered as a witness Lottie Knight, who testified to knowing the defendant, and that she met him on the viaduct between 6 and 6:30 on the evening of May 19, 1913,- that he spoke to her, saying, “Hello, Lottie,” and that she answered “Hello, George.” She did not know who was with him, and the officers found her in bed at her home on the same night, after the prosecuting witness had told them of this incident.

The officers who arrested defendant, and who saw the prosecuting witness identify them, were placed upon the witness stand, and testified to the facts and circumstances surrounding the arrest of the defendant.

The defendant did not take the witness stand, and did not offer any evidence in his behalf.

It is contended by defendant that the evidence is insufficient to sustain the judgment and sentence, for the reason that it does not show that defendant participated in the robbery, and that only his codefendant, Fred Etheridge, committed it.

To support his contention, defendant relies upon the cases of Anderson v. State, 66 Okla. Cr. 291, 91 P. 2d 794, and Smith v. State, 66 Okla. Cr. 408, 92 P. 2d 582.

A careful reading of these cases reveals that there is a material difference in the facts in those cases and this one. It is unnecessary to here review the facts of those cases. While it is true that the evidence in the instant case does not show that the defendant actually used physical force at the time his codefendant held and robbed the prosecuting witness, it does show that he was the first one to meet the witness, and to suggest the purchasing of the whisky. That he stood within three feet of the witness at the time he was being robbed and did nothing to prevent it. After the robbery had been committed he told the witness, “If you tell the coppers it will be too bad for yon, we will get you.” This evidence was uncontradicted. He left the scene of the robbery in company with his codefendant, and they were together later when picked up by. the officers. Under this uncontradicted evidence, the jury had the right to come to the conclusion that the two defendants were acting together. That they intended to rob the witness when they left the Central Bar, and they carried this into effect. No doubt the jury came to the conclusion that the defendant did not use any physical force, for the reason that the prosecuting witness was a small, frail man, weighing only 110 pounds, and the codefendant was a strong, robust man weighing 145 pounds. It was unnecessary for him to assist by the use of physical force.

21 O. S. 1941 § 172 is as follows:

“All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid ,and abet in its commission, though not present, are principals.”

In the Anderson case, supra [66 Okla. Cr. 291, 91 P. 2d 797], after quoting the above statute, we said:

“One of the first cases decided by this court was in an opinion by Judge Richardson, in the case of Moore v. State, 4 Okla. Cr. 212, 111 P. 822, 824, which has been cited, and the principle announced therein adhered to in many cases. It is there said:
“ ‘To constitute one a party to a crime under this statute, it is necessary that such person be concerned in the commission of the offense; that is, that he either commit it or aid or abet its commission — and it is not sufficient that he merely acquiesce therein. Consenting and acquiescing are mere mental acts, which, unless communicated to the perpetrator of the offense, in no manner aid or abet him in its perpetration. To be concerned in the commission of crime, one must either commit the crime himself, or procure it to be done, or aid or assist, abet, advise or encourage its commission. . .”

Certainly the jury under the evidence above stated had the right to conclude that the defendant not only arranged for the robbery, but that he was acting in concert with his codefendant in carrying it out. It could not be said that one who drove an automobile for the bank robber who robbed the bank, although he did not assist in the actual robbery, or other act of his codefendant, would not be liable the same as the principal defendant.

The statute above quoted makes all persons concerned in the commission of a crime in this state principals.

The jury, after hearing the testimony of witnesses in this case, found the defendant guilty. This court would not be justified, under the facts and circumstances here disclosed, to set such verdict aside.

Finding no error in the record, the judgment and sentence of the district court of Tulsa county is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    In re LEO MAYNARD.
    No. A-10570.
    Nov. 22, 1944.
    (153 P. 2d 505.)
    Leo Maynard, pro se.
    Randell S. Cobb, Afty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   JONES, P. J.

This proceeding in habeas corpus is instituted by the petitioner, Leo Maynard, to secure his release from confinement in the State Penitentiary.

The petitioner seeks his release upon the following grounds:

First, he had been placed in jeopardy twice for the same offense.

Second, he had been denied his right to a speedy and public trial.

Third, he was deprived of his liberty without due process of law.

When the petition was first presented, the petitioner ashed this court to direct that a transcript of the proceedings, not including the evidence taken before the district court of Osage county, be furnished at the expense of Osage county. After an examination of the petition, this court directed that a transcript of the record be furnished, and, in accordance with said order, the court clerk of Osage county has filed herein duly certified copies of all of the instruments filed in his office pertaining to defendant’s case.

The duly certified transcript which the petitioner adopted and makes a part of his petition shows that petitioner was charged with a crime of burglary in the second degree after having previously been convicted and served terms in the State Penitentiary for the crimes of larceny of livestock and three offenses of burglary in the second degree. A preliminary examination was held on April 6, 1942, and at the conclusion thereof defendant was ordered held for trial in the district court and committed to jail in default of bail. An information was filed against the defendant and upon his arraignment before the district court, counsel was appointed to represent defendant. This counsel for defendant filed a demurrer to the information and when it was overruled entered a plea of not guilty.

The case was later assigned for trial for October 20, 1942. Subpoenas were issued for both the state and defendant. After a trial, the jury returned a verdict of guilty, but left the punishment to the trial court. Later, after overruling a motion for new trial presented by counsel for defendant, the defendant was sentenced to serve a term of six years in the State Penitentiary and was committed to the penitentiary in default of bail.

The only irregularity in the whole proceeding is the amount of punishment assessed the defendant by the trial court. The verdict of the jury found the defendant guilty of the crime of burglary in the second degree, and further found that it was a second and subsequent offense. Under this record, the minimum punishment which could be assessed the defendant was a term of ten years in the State Penitentiary. Spann v. State, 69 Okla. Cr. 369, 103 P. 2d 389; 21 O. S. 1941 § 51. Since the error by the court is one in favor of the defendant, he is not in a position to complain because, if the matter were sent back to the trial court with directions to assess the punishment in accordance with the verdict of the jury, he would receive a sentence of at least ten years in the State Penitentiary. Of course, defendant by his petition does not seek this remedy.

We have found nothing in the record to sustain any of the petitioner’s contentions. There is nothing to show that he was denied any statutory or constitutional rights, lie was furnished counsel throughout the proceeding. We were not furnished with a transcript of the evidence taken in the trial of the defendant, but in a habeas corpus action, the same would not be considered unless it had a bearing upon the question of the lack of jurisdiction of the trial court.

It is well settled that the writ of habeas corpus is not to determine the guilt or innocence of the prisoner, but is only to determine whether the prisoner is restrained of his liberty by due process of law, and to determine whether the court which rendered the particular judgment was without jurisdiction. The writ may not be used to perform the office of an appeal.

The writ of habeas corpus is denied.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    MARIE E. DUFFEY v. STATE.
    No. A-10335.
    Nov. 29, 1944.
    (153 P. 2d 629.)
    Don Cameron, of Oklahoma City, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., of Oklahoma City, for defendant in error.
   BAREFOOT, J.

Defendant, Marie E. Duffey, was charged in the court of common pleas of Oklahoma county with the crime of “maintaining a bawdy house”; was tried, convicted, sentenced to pay a fine of f 100, and has appealed.

Defendant filed a motion to suppress the evidence, which was as follows (omitting the caption) :

“Comes now the above named defendant, Marie E. Duffey, and respectfully moves the court to strike, reject and disallow all testimony of the prosecuting witnesses and arresting officers herein, for the following reasons, to wit:
“First: Because the search and seizure, and all evidence obtained by said officers, were in violation of the statutory and constitutional rights of this defendant, in this, to-wit: Said officers, without a search warrant, invaded the home of this defendant on Sunday, over the objection of defendant, and searched said home unlawfully, illegally and maliciously; there was no crime being committed or attempted to be committéd in the presence of said officers, and said search was unlawful and illegal, and said officers, then and there, without a warrant and without sufficient, just or any provocation at all, in law, arrested this defendant and committed her to jail, and now prosecutes her in this action.
“Second: Defendant says the action of the officers was trespass, was without any legal excuse, or right and was contrary to the rights and privileges of this defendant under the Constitution of the United States, and the State of Oklahoma, and the statutes enacted in pursuance thereof.
“Wherefore, this defendant prays that all of said evidence, if any obtained, be quashed, suppressed, rejected and said cause dismissed.”

And also filed a motion to abate, as follows:

“Comes now the defendant and moves the court to abate and quash this prosecution for the following reasons, to-wit:
“Because the arrest herein is for a misdemeanor; said arrest was made, without a warrant of arrest, and on a Sunday, and no crime was then and there being committed in the presence of said arresting officer, and said officers invaded the home and residence of this defendant, without a search warrant, or a warrant of arrest and on a Sunday and made said arrest, all of which was illegal and unlawful.”

A hearing was had on these motions prior to the trial of defendant. At this hearing the evidence of defendant was taken, and the court overruled the motions. Defendant contends that the overruling of the motions was error. Consideration of this question necessitates a brief statement of the facts.

The defendant, Marie E. Duffey, on the 1st day of February, 1942, operated a seven-room house located at 402 West Washington, in Oklahoma City, and had operated the same for over a year. The apartments, or rooms, were rented to different persons, and several girls, whom the evidence revealed were prostitutes, rented and occupied the rooms. One of them, Zoe Wright, testified in this case. She testified that her arrangement with the defendant was that she should pay her 50 cents for every “date” she had with a man. The arrangement was for another person to answer the telephone and make the “dates” for all of the girls. The witness and the defendant both had paid fines in municipal court upon numerous occasions. In some instances a cash bond had been posted, and the same forfeited for non appearance. The record does not reveal the crime with which defendant was charged in these instances, but the inference is that it was for maintaining a bawdy house, or house of ill fame. The officers had searched the premises on numerous occasions, and the premises had the reputation of being a place where prostitution was carried on by the girls who rented the rooms.

Defendant denied that she was paid 50 cents or any other sum by the girls who had “dates” and who were occupying the premises.

The police officers had knowledge of the above conditions on the 1st day of February, 194-2, and had known of these conditions for a year prior thereto. On the above date these police officers went to the above-described premises for the purpose of arresting the defendant. From the record, it may be found that they had determined to arrest defendant, and in their language, “turn her to the county.” They did not have a search warrant to> search her premises, nor did they have a warrant for her arrest. Both the defendant and Zoe Wright, who occupied one of the rooms, were arrested and placed in the city jail, on Sunday, February 1, 1942. On Monday, February 2, 1942, the police officers went before the county attorney and Officer L. I>. Arnold swore to an information charging the defendant with the crime of “maintaining a bawdy house.” This information was filed in the court of common pleas of Oklahoma county on February 2, 1942, and a warrant issued for the arrest of the defendant, who was in the city jail, as above stated.

The above statement of the facts is a fair one, so> far as the record is concerned. With reference to the motion to suppress the evidence, it may be stated that no evidence procured as a result of the officers entering the premises of defendant on Sunday, February 1, 1942, was offered by the state. Therefore, there was nothing to suppress.

The officers evidently did not intend to search tin? premises, but went there for the purpose of arresting the defendant and “turning her to the county.” Under the law, as we have so often held, they did not have the right to enter the premises of defendant without a search warrant, or to arrest her without a warrant for the commission of a misdemeanor, unless a crime had been committed in their presence.

It has often been held by the courts that an officer may enter a house or premises without the necessity of obtaining a search warrant, or warrant of arrest, where he hears or sees a disturbance therein, or where it is detected by his natural senses, and especially for the purpose of preventing a violation of the law,- and as a result of such entrance he may make a lawful arrest after entering. But it has also been held that unless there be a reason, as above stated, that an officer cannot enter the private premises or residence of a citizen for the purpose of search without a warrant, or to arrest one without a warrant. Note 26 A.L.R. 286, and cases cited.

Title 22 O. S. 1941 § 196, with reference to when an officer may make an arrest without a warrant, is as follows :

“A peace officer may, without a warrant, arrest a person:
“1. For a public offense, committed or attempted in his presence.
“2. When the person arrested has committed a felony, although not in his presence.
“3. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.
“4. On a charge, made upon reasonable cause, of the commission of a felony by the party arrested.”

For cases construing this statute see Marple v. State, 51 Okla. Cr. 240, 1 P. 2d 836; Heinzman v. State, 45 Okla. Cr. 305, 283 P. 264; Coffey v. State, 38 Okla. Cr. 91, 258 P. 923; Miles v. State, 31 Okla. Cr. 4, 236 P. 907.

This is the law of the state as enacted by the Legislature, and any officer who acts without regard thereto does so at his own peril. Collegenia v. State, 9 Okla. Cr. 425, 132 P. 375; Yates v. State, 73 Okla. Cr. 51, 117 P. 2d 811; Meek v. Tilghman, 55 Okla. 208, 154 P. 1190.

From what has been stated, it follows that the officers did not have a legal right to search the premises of defendant on Sunday, February 1, 1942, without having secured a search warrant. Nor did they have the right to arrest her for the commission of a misdemeanor not committed in their presence, without a warrant. By reason of the action of the officers, the defendant was entitled to take such action against them as the law justified. But having come to this conclusion, are we justified in saying that the defendant should be discharged from paying the penalty imposed by this sentence as a punishment? The information was filed in the instant case on February 2, 1942. It was filed by the county attorney of Oklahoma county, and in the court of common pleas. The guilt or innocence of the defendant did not depend upon the arrest on the date named, and the question of unlawful arrest would not enter into the question of her guilt or innocence. As stated above, she could have taken such action as- the law warranted, but she cannot here maintain that such arrest is a justification for her discharge or a reversal of this case on the facts.

In the case of Commonwealth v. Tobin, 108 Mass. 426, 11 Am. Rep. 375, the court said:

“The subsequent failure of the officer to make a complaint before the magistrate against his prisoner for the offence for Avhich he had arrested him — whatever effect it might haATe to render the officer liable to an action of trespass by the latter — cannot affect the question whether his assault upon the officer Avas a breach of the criminal law.”

The record amply sustains the charge the defendant, was conducting or maintaining a bawdy house in Oklahoma City, and at the premises described in the information. The eAddence clearly reveals that she not only had knowledge of what was being done, but that she was conducting it for revenue, and in defiance of the law. How easy it would have been for the officers, who had all this knowledge prior to' the arrest of defendant, to have followed the plain provisions of the statutes and laid the facts before the county attorney and had an information filed against the defendant, and secured a warrant before making the arrest. We appreciate the effort of the officers in enforcement of the law, and no doubt in this instance they knew the defendant, knew her reputation, and the reputation of her premises, and for that reason deemed it justifiable to arrest her without the procurement of a warrant. In the next instance, it might be the premises of a citizen who is entirely innocent. It is for this reason that the law, as above stated, was enacted. It is for the protection of the innocent, as well as for the punishment of the guilty.

Finding no error in the record, the judgment of the court of common pleas of Oklahoma county is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    DONALD FRAZEE v. STATE.
    No. A-10487.
    Nov. 29. 1944.
    (153 P. 2d 637.)

      Jerome Sullivan, of Duncan, for plaintiff in error.
    Kandell B. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Donald Frazee, was charged in the district court of Comanche county with the crime of rape; was tried, convicted, and sentenced to serve ten years in the State Penitentiary, and has appealed.

At the time of the act complained of, the defendant was 16 years and 5 months of age. It was contended by the state that tlie defendant and another youth, Billy Joe Pearce, committed rape by force on the person of one Ila Curry, the wife of an Army Lieutenant, stationed at Fort Sill, Oída.

The evidence, briefly stated, is as follows: Mrs. Curry testified that on August 26, 1943, about 3 p. m., she had laid down on her bed at her home at Lawton, Okla., to rest a few minutes; that she was fully dressed except that she had removed her shoes; that she was awakened by someone on top of her with his hand over her mouth; that this person was Billy Joe Pearce; that he said, “Don’t move your head, don’t scream, or don’t look at us or we’ll kill you;” that she was pinned down to where she could not move; that Pearce committed an act of sexual intercourse with her at that time; that she jerked his hand off of her mouth and moved her head and saw the defendant Frazee standing by the bed. That the defendant Frazee was present during all of the time that Pearce was on her; that after Pearce had finished the act, the defendant Frazee likewise committed an act of sexual intercourse with her; that during the time Frazee was committing the act, Pearce kept admonishing her not to scream nor look at their faces nor say anything or they would kill her; that all of the threats were made by Pearce; that after the assault had been committed and as the boys were leaving the front door, she jumped out of the bedroom window, and, while still barefooted, ran to the next-door neighbor’s house; that Mrs. Weist, the neighbor, was not at home, but that she used the telephone and called her at Mr. Weist’s place of business. That after the police arrived, it was discovered that the two youths had made their entrance into the house by using a wire to unlatch a screen and entering through a window.

Mrs. Harry Weist testified that she lived next door to the house occupied by Lt. and Mrs. Curry; that about 4 o’clock p. m., on August 23, 1943, while the witness was at her husband’s'place of business, Mrs. Curry called and told her that two men had come in her house and raped her. That she went home immediately and found Mrs. Curry crying and in a hysterical condition; the witness then related what Mrs. Gurry told her concerning the alleged rape, which story was substantially the same as that related by the prosecutrix in her testimony.

A. B. Boling, chief of police of the city of Lawton, testified that on August 26, 1943, he was called to the home of Lt. Gurry. When he got there, around 4 p. m., Mrs. Curry was very nervous and highly excited. He searched the premises and found the back screen by the kitchen had been opened and was loose; that he obtained a description of the boys who were alleged to have made the attack and arrested them about four hours later in the city of Lawton.

The defendant, Donald Frazee, testified in his own behalf that he was 18 years of age on March 8, 1943; that he weighed about 112 or 113 pounds; that he had previously enlisted in the Navy, but had been discharged when they found out his age; that on August 26th, he and Billy Joe Pearce had been to Fort Sill, looking for a job; that as they were returning home they passed the Curry house, and upon looking in saw a woman lying on the bed; that the Pearce boy said, “1 imagine if she is asleep, her purse is around there some place;” that the Pearce boy tried the different windows and the back door, but that they were locked; that Pearce then took a piece of wire, stuck it through the screen and unlocked the screen; that Pearce climbed in the window, unlocked the back door and defendant went into the house with Pearce. The defendant stated that he found the purse, opened it and took $6 from the purse; that Avhile he Avas going through the purse, Pearce Avent into the next room; that he Avent to the room Avhere Pearce had gone and saw Pearce lifting a table upon Avhich an eiectric fan had been placed; that Mrs. Curry Avoke up and said “Hey,” and defendant ran out of the room; that when he got to the door, he looked around to see if Pearce was coming; that he waited at the door Iavo or three minutes and then went back to the room to see Avhat Avas detaining Pearce; that he saw the prosecutrix lying across the bed with Pearce on top of her with his hand on the side of her face; that he sat down in the southwest corner of the room and Availed while Billy Joe Pearce and the prosecutrix committed an act of sexual intercourse; that Avhen Billy Joe Pearce got off of the prosecutrix, he Avas still sitting on the chair; that Pearce Avalked over to the chair where he was sitting and he got up and walked over to where the prosecutrix was lying; that he took hold of one leg of her pants and started to take it off and she lifted her leg so he could remove it, and then did the same with the other leg; he then related that he committed an act of sexual intercourse with the prosecutrix, that she offered no resistance while he was committing the act, and that she made no effort to get up or prevent him from committing the act. On cross-examination, the defendant admitted that the prosecutrix had her face turned to the wall while he was committing the act with her and that she kept her face turned that way because Billy Joe Pearce had told her to keep her head turned or he would kill her.

Mrs. Curry was recalled and testified that she did not place her arms around Billy Joe Pearce, nor the defendant, during the time they were committing the act with her and did not assist in removing the pants as testified by the defendant; that defendant was not sitting in a chair, but was standing by the bed while Pearce was committing the act, and that as quickly as Pearce got off, the defendant got on her, before she had time to move. She then testified in explaining a statement testified to by the defendant whereby the defendant stated that the prosecutrix had said, “Don’t let anything happen,” that she was about three months pregnant; that previously in January, she had had a miscarriage and that it was constantly going through her mind that the things that were happening might cause her to have another miscarriage.

It is first insisted that the trial court erred in overruling the demurrer to the information. There are several grounds set forth in the demurrer, but the one insisted upon by counsel for defendant is the contention that the court did not have jurisdiction over the person of the defendant for the reason that the defendant had not been accorded a preliminary examination and was not represented by counsel at the preliminary examination as provided by law.

The record discloses that the preliminary complaint was filed before the county judge who acted as an examining magistrate at the preliminary examination.

Upon the-hearing, in connection with this contention, the county judge testified that a preliminary examination was had before him on August 30,1943; that the defendant was arraigned before him on August 27, 1943, at which time,

“The county attorney read the complaint to the boy and when the complaint was read, I explained to the boy his rights in the matter, that he had 24 hours in which to make up his mind what he wanted to do in the matter, and that he had right to consult some attorney if he wanted to and so they entered a plea of not guilty, I believe, or guilty, I don’t remember what the record will show there, anyway, we had a preliminary, and they entered a plea of not guilty, because they had a preliminary. Q. Did he in response to your advising him of his rights express any desire to employ counsel? A. He didn’t. Q. Coming to the date of the preliminary hearing held before you on August 30, 1943, at that time, I will ask you whether or not you recall, to begin, the information, the complaint wasn’t read by the.county attorney of this case? A. It was, yes, sir. Q. In open court? A. Yes, sir. Q. Who was present, if anyone, with the defendant, Donald Frazee, at the counsel table? A. His father. Q. In open court, did you, or did you not advise the boy again, and his father of right to counsel? A. I asked Mr. Frazee, the father, if he was going to have counsel, and he said if I would permit he would, represent the boy himself in court, and I granted that request. Q. And pursuant to the permission granted was the father and the defendant Donald Frazee both granted the right of cross-examination in that hearing? A. They were. Every witness was put on tíre stand he was asked if, I asked the father that was representing the boy if he had any questions that he Avanted to ask. Q. And he did ask certain questions? A. He did ask some questions. Q. On the eAddence adduced by the state at such hearing you found the probable commission of the crime and the reasonable belief that this defendant did commit it and bound him and transcribed him to the district court? A. I did, yes, sir.”

One cross-examination, the county judge testified that at the time of the preliminary examination, the father did most of the talking for the son; that he knew the father of the defendant was able to employ counsel, but that the father said he Avanted to see into the case further and would handle it himself during the preliminary and later Avould hire an attorney if he thought it necessary.

The county attorney also testified that the defendant upon his arraignment before the committing magistrate and later, the defendant and his father both being present, were advised of all. of defendant’s rights, including his right to be represented by counsel, but that no request Avas made to the court to appoint counsel, but, on the contrary, it was stated by the father of the defendant that they did not desire counsel for the preliminary hearing. No other proof was introduced by either the state or the defendant.

A demurrer is not the proper pleading to challenge any defects in the preliminary proceedings prior to the filing of the information in the district court. A motion to quash or set aside the information is the proper remedy. IToAvever, all parties concerned treated the demurrer herein as being sufficient to raise the question as to whether a preliminary examination in accordance with the law had been accorded the defendant.

Article 2, sec. 20, Oklahoma Constitution, provides among other things that the accused “shall have the right to be heard by himself and counsel. . .” In considering this constitutional provision, it has been held that the right to be heard by counsel is in the nature of a personal privilege which the accused may waive. Starr v. State, 5 Okla. Cr. 440, 115 P. 356; In re Tuggle, 70 Okla. Cr. 83, 104 P. 2d 726.

In the case of Lyons v. State, 77 Okla. Cr. 197, 138 P. 2d 142, this court held that the mere fact that a defendant did not have counsel appointed to defend him at a preliminary examination was not a denial of his constitutional right to be heard by counsel where he had able counsel to defend him at his trial, and ample time and opportunity had been given to prepare for the trial.

We can perceive of instances where an accused is young and illiterate and wholly incapable of preparing his defense or conducting an examination, where the court should assign counsel to represent him as a necessary prerequisite of due process of law, whether requested or not. But such are not the facts in the instant case. No- showing made by defendant and Ms father that they were unable to employ counsel, but, on the contrary, the showing by the state was that the father was able to employ counsel but stated that he did not desire to have counsel at the preliminary examination. Under such a record, the court properly overruled the demurrer.

It is contended that the court erred in allowing Mrs. Weist to relate statements made to her by the prosecutrix after the alleged crime had been committed.

In this connection, the prosecutrix testified that when she heard the defendant and his companion opening the front door to leave she jumped from her bed and went through a window and ran to her neighbor’s house and called Sirs. Weist over the telephone. The witness, Mrs. Harry Weist, testified that the prosecutrix told her over the telephone that two men came into her house and raped her; that the witness drove home immediately and found the prosecutrix at her house, barefooted, crying, and in a hysterical condition; that the prosecutrix again related about the two boys coming into her house and raping her; that she said one of the boys held his hand over her mouth and that they threatened her.

The rule concerning the admissibility of hearsay evidence as a part of the res gestae is well stated in the case of Cook v. State, 27 Okla. Cr. 215, 226 P. 595, as follows:

“Hearsay evidence may be admissible as a part of the res gestae. One of the recognized exceptions to the rule that hearsay evidence is not admissible is where spontaneous ■ statements or exclamations are made by an injured person, declaring the circumstances of the injury, where such statements are made immediately after the injury or during such indefinite time thereafter as the stress of pain, fear, or excitement prevents the reflective faculties of the narrator to control, so that the utterances are spontaneous and in direct response to the sensations produced by the physical shock or mental excitement. The utterances to come within the exceptions to the rule, must be under the uncontrolled domination of the senses, so near in point of time that considerations of self-interest and reflection could not have been fully restored.”

See, also, Dodd v. State, 29 Okla. Cr. 311, 233 P. 503; Morehead v. State, 12 Okla. Cr. 62, 151 P. 1183, Ann. Cas. 1918C, 416; Clingan v. State, 15 Okla. Cr. 483, 178 P. 486; Chastain v. State, 46 Okla. Cr. 123, 287 P. 826.

In Chastain v. State, supra, it is stated:

“No fixed measure of time or distance from the main occurrence can be established as a rule to determine what should be a part of the res gestae. • Each case must necessarily depend upon its own circumstances to establish whether the facts offered were a part of the same continuous transaction.”

It follows from the aboye decisions that when hearsay evidence is offered on the theory that it was a part of the res gestae that it first becomes a question for the trial court to determine after a consideration of all of the facts and circumstances surrounding the giving of the statement. It might be said that it is a matter within the discretion of the trial court, and the trial court’s ruling will be upheld on appeal unless there appears an abuse of discretion.

Here we find the prosecutrix just a few "minutes after the alleged attack occurred in such a physical condition from the shock of the assault made upon her that her utterances were spontaneous and created by and springing from the attack made upon her, and made so soon after the alleged attack in such a manner as to preclude the idea of deliberation and falsification.

It is next contended that there is a fatal variance between the allegations in the information and the proof introduced at the trial.

The information charges the defendant with the crime of rape “by means of force overcoming her resistance.” The defendant contends that the proof of the state showed that defendant committed the crime “by threats of immediate and great bodily harm, accompanied by apparent power of execution,” and Avould come under the provisions of subdivision 5, section 1111, 21 O.S. 1941.

The proof of the state was sufficient to authorize the county attorney to allege in his information rape by force or rape by threats of immediate great bodily harm accompanied by apparent power of execution.

The prosecutrix testified that she was awakened by Billy Joe Pearce being on top of her and holding her down with her head pushed toward the wall and with his hand on her mouth. That she was pinned down to ■where she was unable to move. This was sufficient to substantiate the allegations of the information.

The defendant, through his counsel, prepared and submitted a complete set of instructions to the trial court and saved exceptions to the refusal of the court to give these instructions. Defendant now contends that the court erred in refusing to give certain instructions requested by him. Most of these instructions were based upon the theory that the defendant was guilty of the crime of rape in the first degree or nothing at all. Defendant’s counsel says that where rape by force is committed, it is rape in the first degree regardless of the age of defendant.

21 O. S. 1941 § 1114 defines rape in the first degree and is as follows:

“Rape committed by a male over eighteen years of age upon a female under the age of fourteen years, or incapable through lunacy or unsoundness of mind of giving-legal consent; or accomplished with any female by means of force overcoming her resistance, or by means of threats of immediate and great bodily harm, accompanied by apparent power of execution, preventing such resistance, is rape in the first degree.”

Under this statute, no male under the age of 18 can ever be guilty of rape in the first degree. It is apparent from this statute that the lawmakers intended to place youths over 18 in a classification separate and apart from those under 18. Defendant was only 16 years of age. The trial court correctly construed this statute and instructed the jury that if they found the defendant guilty of rape by means of force and violence overcoming her resistance and that the female was over 14 and the male under 18, that it would only be rape in the second degree.

The defendant further requested an instruction as follows:

“You are instructed, gentlemen of the jury, that it is the duty of each and every member of the jury in this case to decide the issues presented for himself, and, if, after consideration of all the evidence in the case and the instructions of the court on the law, and from consultation with his fellow jurors, there is a single juror who has a reasonable doubt of defendant’s guilt, it is his duty under his oath, to stand by his conviction and favor his verdict of not guilty, so long as he entertains such doubt.
“Included in court’s
“Instructions and Refused.
“Exceptions allowed.
“Toby Morris,
“Judge.”

This court has never had occasion to pass upon this precise question. The defendant in support of his contention that the court erred in refusing to give this instruction cites Mitchell v. State, 129 Ala. 23, 30 So. 348; Green v. State, 168 Ala. 104, 53 So. 284; People v. Dole, 122 Cal. 486, 55 P. 581, 68 Am. St. Rep. 50; Easter v. State, 191 Miss. 651, 4 So. 2d 227, 137 A. L. R. 391; State v. Wisman, 94 W. Va. 224, 118 S. E. 139.

Easter v. State, supra, is reported in 137 A. L. R. 391, together with an annotation oí the decisions of other states on this question.

It is the duty of jurors to reason together and harmonize their discordant views where possible. A juror should not consent to- a verdict which he thinks is contrary to the evidence out of a mere deference to his fellow jurors. Yet, he may consider whether the doubt which he entertains is a reasonable one which makes no impression on the minds of others equally honest and equally intelligent with himself, who have heard the testimony out of which the doubt arises, and he may properly change Ms views because of this consideration. In other words, he can properly doubt the correctness of his own opinion when it is not concurred in by his fellow jurors, and may without a violation of his oath, consent to a verdict, which he, if he were acting alone, would not render.

While the court might have, in his discretion, given the requested instruction, yet, his refusal to do so is not error. The majority of the decided cases so hold. Such instruction undoubtedly has a tendency to appeal to an obstinate juror, and the jury room is no place for pride of opinion or obstinancy for the reason that it is the duty of the jurors to discuss the evidence in a spirit of fairness and candor with each other and with an open mind toward the views of their fellow jurors.

It is possible as suggested by counsel in his brief that a failure to give such an instruction causes many jurors to be subjected to the will of one or two strong characters after they have retired to the jury room. However, it appears that such an instruction is an invitation to the jury to disagree. We have provided by statute that when a verdict is rendered, the jury may be polled on requirement of either party. 22 O. S. 1941 § 921. This statute should protect a defendant if he has cause to believe in his own mind that the verdict was not the unanimous vote of the jury.

In Egan v. United States, 55 App. D. C. 306, 5 F. 2d 267, 268, it is stated:

“The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen 'with deference to the arguments and with a distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself. It cannot be that each juror should go to the jury room with a blind determination that a verdict shall represent his opinion of the case at that moment, or that he should close his ears to the arguments of men who are equally honest and intelligent as himself.”

Many courts have held that a requested instruction, such as the one herein under discussion, without pointing out in such instruction the duty of each juror to consult with his fellow jurors is properly refused since it has a tendency to impress upon the mind of each juror the idea that Ms verdict must be reached and adhered to without the aid of that consultation and deliberation which the law contemplates shall take place in the jury room and constitutes an invitation to cause a mistrial. 137 A.L.R. 404; Shepard v. United States, 10 Cir., 160 F. 584, certiorari denied 212 U. S. 571, 29 S. Ct. 682, 53 L. Ed. 655; Smith v. State, 25 Ala. App. 445, 148 So. 336 (which cases overrule the Alabama cases which are cited in support of the defendant’s contention and holds that such instructions are bad). Biddle v. State, 131 Ark. 537, 199 S. W. 913; People v. McNabb, 63 Cal. App. 755, 219 P. 1028; State v. Boyles, 34 Idaho, 283, 200 P. 125; State v. Godwin, 131 Wash. 591, 230 P. 831; Sims v. Commonwealth, 134 Va. 736, 115 S. E. 382; State v. Shaw, 59 Utah 536, 205 P. 339; People v. Lardner, 298 Ill. 190, 129 N. E. 697; State v. Clouse, 113 Kan. 288, 214 P. 103.

In the instant case, the trial court gave the instruction generally used by the trial courts in Oklahoma that the verdict must be by concurrence of all twelve of the jurors but did not stress the point defendant makes that each juror should stand by his conviction. The instruction given was a sufficient declaration of the law on the subject.

It is further contended that the defendant was materially prejudiced by reason of the county attorney’s asking the defendant on cross-examination if he and Billy Joe Pearce were tried and convicted in the juvenile court and sent to the reformatory, and it is, also, insisted that the defendant was materially prejudiced by reason of certain misconduct of Lieutenant Gurry, the husband of the prosecutrix, which occurred in the presence of the jury and during the argument of counsel for defendant.

We shall consider these two assignments of error with the contention of defendant that the punishment assessed the defendant is excessive.

When the county attorney asked the defendant on cross-examination if he and his companion had not been tried and convicted in the juvenile court, counsel for the defendant immediately interposed an objection which was sustained by the trial court in the following language:

“By the Court: Sustained. Gentlemen, you are instructed that the question asked was not competent and you will not consider it for any purpose whatsoever.”

In 10 O. S. 1941 § 101, which is the procedural statute pertaining to dependent and delinquent children, it is provided :

“A disposition of any child under this Article or any evidence given in such cause, shall not in any civil, criminal or other cause or proceedings whatever in any court be lawful or proper evidence against such child for any purpose whatever, except in subsequent cases against the same child under this Article.”

In view of this statute, the trial court properly sustained the objection to the question ashed by the prosecutor. In should not have been asked. In Coppage v. State, 77 Okla. Cr. 413, 142 P. 2d 371, this court held:

“Questions may be asked in the presence of the jury, which convey to them information which is so prejudicial to the rights of the defendant that, notwithstanding an objection is sustained thereto, it may constitute reversible error. The whole record may be examined to determine this.”

The Legislature of this state took cognizance of the fact that many children do things which they would not do if they were of more mature age and judgment, and provided in the above statute that their misconduct which might have caused them to have been committed as a delinquent child could not be used against them for any purpose in any proceeding in any court.

In the hearing on the motion for new trial, counsel for defendant made a showing that during the argument of one of the counsel for defendant that Lieutenant Curry, the husband of the prosecuting witness, who had sat at the counsel table during most of the trial but did not testify, arose from his seat in the middle of the courtroom and walked down the aisle toward counsel for defendant in a belligerent manner and was restrained by the sheriff of Comanche county and ordered to be seated. The trial court in commenting upon this situation at the time of the overruling of the motion for new trial stated:

“The court observed the lieutenant immediately after he stood up from where he was first sitting and observed him coming down the aisle toward the west. The court immediately began to observe to see whether or not any peace officers were observing the situation, and saw that they were. It only lasted about 30 seconds, the whole situation, the way the court observed it. The jury had been listening and listening attentively to argument for both sides, and was listening attentively to the argument of Mr. Paul Sullivan who was arguing at the time, but Mr. Paul Sullivan, the way the court viewed it, did pause in his arguments and look toward the lieutenant. The court is not prepared to say for a certainty that all of the members of the jury observed it, as the court was observing carefully the lieutenant, and was not particularly looking toward the jury, but was observing the lieutenant and the attorney, Paul Sullivan. The court kept his eyes on the lieutenant almost exclusively until after he was seated. So, the court didn’t observe particularly whether the jury saw him, or not, and couldn’t say for a certainty at this time.
“By Mr. Sullivan: Q. Will Your Honor state whether,- or not, there was a tenseness in the courtroom during that time? By the Court: Yes, I would say there was some tension created by the incident. It was very brief, and I would say it wasn’t pungent or unusual, lasting only a few seconds. It was apparent to the court that the lieutenant had no weapons of any kind upon a close observation of him, I watched him carefully and saw that the peace officers had the thing well in hand. If there was any purpose in his mind, the court couldn’t say from his actions that there was any purpose other than the fact that the court suggested that it apparently had the tenor or action of a belligerent situation on his part, but there really was nothing actually that the court could see that caused him to form that opinion other than the situation of the trial itself.”

Such an unusual situation presented a problem to the trial court and likewise to this court on appeal. The actions of the lieutenant might have prejudiced the jury against the defendant or it might have aided the defendant by reason of the fact that the jury knew that counsel for defendant in presenting his argument was presenting the cause of his client in the light of the evidence most favorable to the defendant. This counsel had the legal obligation to do.

However, in viewing the question as to whether or not the jury assessed excessive punishment under all of the record, we have given the defendant the benefit of the doubt concerning the improper question of the county attorney concerning defendant’s conviction as a juvenile, and this alleged misconduct of Lieutenant Curry. Furthermore, it must,'be considered, also, that this defendant, although a little older than his accomplice, Billy Joe Pearce, was in every other way his inferior. Pearce weighed about 155 pounds, the defendant 112 pounds. Pearce admittedly took the lead in all of the acts. He first suggested that they go into the house to steal the purse. It was Pearce who first attacked Mrs. Curry. According to Mrs. Curry’s testimony, it was Pearce who used the force and threats against her and it was the defendant who stood beside her bed and gave acquiescence to the acts. The defendant never at any time made any threats toward the prosecutrix, and if it were not for the fact that he stood by and acquiesced in the force used by Pearce and the threats made by Pearce and then committed tiie act himself while Pearce used the force and threats during defendant’s act, the conviction could not stand as to this defendant.

In view of all of this record, it is our opinion that the judgment and sentence assessed against the defendant is excessive and should be modified from a sentence of ten years in the State Penitentiary to a sentence of five years in the State Penitentiary.

It is therefore ordered that the judgment and sentence of the district court of Comanche county be modified by reducing the sentence imposed against defendant from ten years in the State Penitentiary to a term of five years in the State Penitentiary, and judgment and sentence as thus modified, is affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    BRADLEY MORRIS v. STATE.
    No. A-10300.
    Dec. 6, 1944.
    (153 P. 2d 829.)
    Charles Dunn and Stephenson & Stephenson, all of Okemah, for plaintiff in error.
    Rand ell S. Cobb, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Roy P. Parham, Co. Atty., Okfuskee County, of Okemah, for defendant in error.
   BAREFOOT, J.

Defendant, Bradley Morris, was charged in the county court of Okfuskee county with the crime of driving, a motor vehicle upon a public highway in Okfuskee county while under the influence of intoxicating liquor; was tried, convicted and sentenced to pay a fine of $75 and to serve 30 days in the county jail, and has appealed.

This charge was the result of a collision on the public highway two miles east of Okemah, in Okfuskee county, on July 1, 1941, when defendant drove his automobile into a tractor and farm-wagon trailer, being driven by J. 0. Meineeke. Mrs. Meinecke and another woman, whose name is not given, were riding in the trailer at the time. The women were injured, but the extent of their injuries is not disclosed by the record.

Without giving the details, it was clearly revealed by the evidence that the defendant was under the influence of intoxicating liquor at the time of the collision. A bottle partly filled with whisky was found in his car. Both vehicles were traveling Avest, and defendant ran into the trailer and tractor from the rear, and while it was to the north of the center of the highway.

Defendant denied being under the influence of liquor, but said that he had stopped at places on his way from CoffeyAÚ'lle, Kansas, and had drunk several bottles of beer. His explanation of the Avhisky being in his car Avas that he had picked up a sailor and a girl, and he presumed they had left it there when they got out of his car at Henryetta.

Defendant’s assignment of error for the reversal of this case is as to the form of verdict submitted to the jury by the court. The form of the verdict submitted, reads:

“We, the jury, drawn, impaneled and sworn in the above entitled cause, do upon onr oaths find the defendant guilty as charged in the information herein and fix his punishment therefor at $.fine, and all costs of this action, and.days, or.months in the county jail.”

It is contended that this gave the jury “no alternative but to assess both a fine and imprisonment.”

In our opinion this contention cannot be upheld. The statute under which defendant was charged is 47 O. S. 1941 § 98, which provides:

“* * * and any person violating the provisions of this Section shall be deemed guilty of a misdemeanor for the first offense and upon conviction therefor shall be punished by imprisonment in the county jail for a period of time not to exceed one (1) year, or by a fine of not more than Five Hundred ($500.00) Hollars or by both such fine and imprisonment.”

The court instructed the jury in compliance with the terms of this statute. It permits the assessment of a fine or a jail sentence, or both. The jury had this instruction, and evidently understood its terms, as was shown on the hearing on the. motion for new trial. Counsel for defendant placed two of the jurors upon the witness stand to testify with reference to the form of verdict that was submitted them by the court, and both of these jurors testified that they thoroughly understood from the instructions of the court.that they were.permitted to assess a fine without imprisonment or that they could assess both. They testified that this was discussed and thoroughly understood by the jury.

The printed form submitted to the jury used the word “and” between the word “fine,” and the jail sentence. If the jury in their consideration had determined to assess only a fine, and no jail sentence, it would have been a simple matter to have stricken from the verdict the word “and”; and they undoubtedly would have omitted ' the “30” days had they not intended to give this punishment. This verdict evidently reflects the exact punishment intended by the jury, and being in conformity with the law, will not be set aside.

An examination of the record does not justify the conclusion that the verdict rendered in this case was the result of passion and prejudice, and that justice demands a modification thereof.

We are, therefore, of the opinion that the judgment and sentence of the county court of Okfuskee county should be affirmed ; and it is so ordered.

JONES, P. J., concurs. DOYLE, J., not participating.