text:
    RICHARD JOHNSON et al. v. STATE.
    No. A-9660.
    Sept. 25, 1940.
    (106 P. 2d 149.)

      Ward, Justus & Ward, of Tulsa, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This is an appeal from the district court of Tulsa county wherein Richard Johnson and Noah. Laverne Tucker were jointly tried and found guilty of robbery with firearms, and were each sentenced to imprisonment at hard labor in the penitentiary at McAlester for a term of 25 years. The judgments and sentences were rendered and entered on the 28th day of November, 1938. An appeal was perfected by filing in this court on May 25, 1939, their petition in error with case-made attached.

The indictment in this case, returned, presented and filed in the district court of Tulsa county, October 6,1938, charged in substance that in Tulsa county, on the 21st day of September, 1938, Richard Johnson, Noah Laverne Tucker, and Tom Hollis did there and then unlawfully, willfully, forcibly, conjointly and feloniously, while acting in concert, each with the others, take from the person of one Earl Stanley, and against his will, personal property, to wit: $4.50, in good and lawful money, by there and then threatening to shoot the said Earl Stanley with a pistol, thereby producing in the mind of said Earl Stanley fear of immediate and unlawful injury to his person, and said fear so produced was sufficient to and did overcome all resistance on the part of him, the said Earl Stanley.

Among other assignments of error it is contended that the evidence is insufficient as to each of said defendants to sustain the conviction.

The testimony in the case was substantially as follows :

Earl Stanley testified that he was employed as a taxi driver for the Cloverleaf Cab Company, and was driving a black Studebaker sedan; on each back door and across the back of the cab was the word “Cloverleaf.” That on the night of .September 21st he had this cab parked at the Union Bus Station, in the city of Tulsa. Around 11:30 that night he saw three men getting in his cab. He identified both defendants as two of the boys. They told him to drive to' 1306 North Wheeling. The defendant Hollis, not on trial, told him where to drive. At Marshall Place in Wheeling, one of the men in the back seat stuck a gun in his side and told him to stop the car. The one who held the gun on him was not on trial. This little fellow (indicating Tucker) got under the wheel and drove out in the woods about three miles, and they took $4.65 from him and took his car. The next time he saw the car was the following evening at Seminole; the signs were painted out and the governor had been removed ifrom the car. The car was in the possession of Jake Sims, chief of police; that it was in Tulsa county where they took his- money.

Carl Johnson testified that he is a taxi driver for the Cloverleaf Taxi Company; was near the Union Bus Station and saw three men get into Earl Stanley’s cab; he pointed out the two defendants on trial as being two of the boys; that he first observed these three men 15 or 20 minutes before they got into' Stanley’s cab; they were coming east from the city hall and walked in single ifile across the driveway to the bus station, and the man whom he identifies as Hollis was in the lead; none of them said anything to him.

Amos Mizell testified that on the night of September 21st, while on his way from Tahlequah to his home in Cushing, his automobile broke down about two miles west of Broken Arrow, and over the objections and exceptions of the defendants he was permitted to testify that while he was asleep in his car, an automobile drove up and three fellows got out of the car; one of them put a g,un in his ribs and asked if he had any money. He told him no, but he searched him and took all the money he had, about $22, that these men drove up in a black new Studebaker, a Cloverleaf cab; that while one of them was taking his money another was pushing an ice pick in the tires of his car, letting the air out, and one of them took the license plates off his car and put them in the cab. He identified defendants on trial; that the next day after the defendants were apprehended he was called up and the license plates were in the Cloverleaf taxi that stopped there that night.

Helen Elliott testified that she was a resident of Seminole, was 17 years of age, had known the defendants, Johnson and Tucker, three or four months; that she saw the defendants on the 22nd day of iSeptember, the same day they were arrested at Seminole. They came to her house about 8 o’clock that morning, in a black Sedan car. ■Tom Hollis asked her to go with them. She got in the ear and rode to a fruit stand with them, where they picked up two girls and rode around with them. Over the objections of the defendants she further testified that she asked these boys where they got the car, and one of them said in Old Mexico; Tucker had on a wrist watch and Hollis told her he got it off a taxi driver, and they left; that within ten minutes Chief of Police Sims came to her house after her, and she saw the defendants on trial at the jail.

On cross-examination she testified that the only one of the defendants she actually knew was Tucker; she then said she did know Tom Hollis; that she met him at her home a long time ago; that she knew at the time she rode with them that they were going to get her into trouble; that on a previous occasion they had taken her out oif the state of Oklahoma.

Jake Sims testified that he arrested the defendants on information that they were in possession of a stolen car; the defendants were arrested at a beer joint in Seminole, near where the car was parked. Tom Hollis, was out behind at the outside toilet; he got away but was later captured. The defendant Johnson told him that the automobile belonged to his mother; this car was later identified as belonging to Earl Stanley; the car and the two defendants were turned over to' Mr. Hughes, chief of detectives oif the Tulsa police department, and two other men on his staff.

Don McGuire testified that, as a member of the Tulsa police department, he went to Seminole on September 22nd, for the purpose of bringing the defendants, Johnson and Tucker, back to Tulsa, that Chief Hughes and Lieutenant Altaffer went with him; that the following conversation was had with the defendants on the way back to Tulsa:

“I asked them about various hijackings, and the man that was with them, and the car, asked them about this car, Studebaker sedan, Cloverleaf Cab, and how they had painted the signs on the doors, and where they had got the tags that they put on the Studebaker sedan; and I asked them about a Chrysler sedan that had been taken previous and was abandoned in Bristow, in or near Bris-tow; and we talked ü> them about their trip through the country with the girl, and the only thing — well, they never did admit that Hollis was with them at that time; that is about the only thing they didn’t admit tO‘ us on the way back to* Tulsa. Q. What did they say about the Studebaker sedan, the Cloverleaf cab? A. They said it was a pretty fast automobile and rode pretty good, but not as good as a Chrysler sedan. Q. Did they tell you where they got it? Mr. Justus: Object to that as leading. The Court: It is leading. Q. Go ahead and tell the rest of the conversation. A. They told us where they had gotten both of the cars. Q. That is what I want to know, just what they told you. A. We asked them if they had taken it from the cab driver, and they told us that they had, and we asked them about taking this Chrysler sedan from a Mr. Wickson; of course they didn’t know Mr. Wickson’s name, but about taking this Chrysler sedan on Riverside Drive, close to the river, from a man and also asked them about a bus that was hijacked on Forty-First street, I believe, and South Peoria. Q. I want to know just what they said. A. They admitted these armed robberies to us at that time, on the way back to Tulsa.”

Tom Hollis, codefendant called as a witness by the state, testified:

“Mr. McDonald: Q. Do you know the defendants, Richard Johnson and Jack Tucker? A. No, sir, I have seen them while I was up in jail, and I seen them once outside. By the Court: You mean you don’t know them? A. No, sir, I know them since I have been in, I have been in 38 days. Mr. McDonald: I would like to have the jury excused.”

Whereupon the jury retired in charge of the bailiff from the courtroom.

Witness handed a written instrument.

“Q. Is that your signature? A. Yes, sir. Q. Did you make this statement? ‘My name is Tom Hollis, I am 26 years old and live at 1302 North Trenton?’ A. Yes, sir. If I made the statement I didn’t know these boys at all. I thought that might have been their names. The Court: Q. Do you know these boys? A. I seen them in jail is all. Q. Do you know these two' boys? A. No1, sir, not personally. Q. Were you ever associated with them? A. No, sir. Q. Is that statement true, that you have made here? A. Well, the names of these boys, down at the city they told me they had signed a statement, and of course I don’t, know the other boys’ names, I thought that was the boys’ names. Q. Tell the real truth now, do you know them? A. No, sir. Q. You were not with them at any time? A. At any time, but once I seen them in Seminole. Q. This is a serious matter with you, and here is a statement that the court has been advised that you signed, and I am going to ask some questions, and I want you to consider it. You say you don’t know these two boys? A. Not personally. Q. Well, do' you know them anyway? A. Just met them while I have been upstairs 38 days, I have been in jail 38 days. Q. You didn’t associate with them on this night of this trouble? A. No, sir. Q. I don’t want to1 see you get in any more trouble; I understand you pleaded guilty to this charge? Mr. McDonald: We refuse to accept this plea, he has not been sentenced yet.”

Whereupon the jury returned to the jury box.

“Cross-examination: Q. You are one of the defendants in this case, are you not, Mr. Hollis? A. Yes, sir. Q. I will ask you whether or not you in company with either of the two other defendants robbed Mr. Stanley of the taxicab on the 22nd day of September, or at any other time? Objection sustained. Q. Were you with these defendants? Object to that as improper cross-examination. Sustained. Q. I will ask you whether or not these defendants were present at the time you robbed Mr. Stanley of the taxicab ? Same objection. The Court: Well, it is improper cross-examination, but I am going to let him answer it. A. No, sir.”

The state rested. Thereupon counsel for the defendants moved the court to advise the jury to acquit the defendants and requested the court to give the following instruction :

“Style and number of the case. Gentlemen of the jury, you are advised by the court to acquit the defendants and say by your verdict, ‘not guilty.’ The Court: It is denied. Exceptions allowed.”

There was no evidence offered on the part of the defendants. The contention urged is that the evidence is insufficient to connect appellants with the robbery.

While it is the province of the court to pass upon the competency of witnesses, it is altogether for the jury, as exclusive judges of the facts to say what degree of weight or credibility shall be given to their testimony.

In this court the presumption does not obtain that the appellant is innocent of the crime. On the contrary, the presumption is that he is guilty where a conviction has resulted in the trial court. The presumption also is that such conviction is based upon competent, sufficient, and credible evidence, and the burden rests upon the defendant in the appellate court to establish the contrary.

In our opinion the facts and circumstances as shown by the foregoing abstract of the uncontroverted evidence on the part of the state establishes the guilt of the defendants beyond any reasonable doubt.

It is next contended that the court erred in admitting incompetent, irrelevant, immaterial and prejudicial testimony on the part of the state.

In their brief counsel say:

“The defendants next urge for a reversal of the case that the court erred in admitting incompetent, irrelevant, immaterial and prejudicial evidence on the part of the state, over the objection and exception of the defendant.
“The contention of the defendants here is that the court permitted the witnesses Amos Mizell, Hellen Elliott, Jake Sims, and Don McGuire to testify against the defendants concerning other offenses than the one for which they were on trial.”

Counsel cite and quote from a number of decisions in support of their contention. The facts in this case, however, distinguish it from those cases in which the admission of evidence as to other offenses has been held to have constituted reversible error.

The robbery of Mizell was closely related to' that of Stanley. The robbery of Stanley occurred about 11:30; Mizell was robbed an hour later, about two miles out of Broken Arrow, on the road to Tulsa. The robber’s car came from the direction of Tulsa. The witness Mizell positively identified tbe defendants as two* of the robbers; they were in possession of this Cloverleaf cab, and in company with Tom Hollis. This proof of the possession by the defendants of the stolen automobile was clearly competent and relevant. Chesser v. State, 63 Okla. Cr. 84, 73 P. 2d 191.

It may be regarded as settled that where the offense charged is so connected with the other offenses sought to be proved as to form a part of an entire transaction, evidence of the latter may be given to show the character of the former.

In the case of Koontz v. State, 10 Okla. Cr. 553, 139 P. 842, 844, Ann. Cas. 1916A, 689, this court said:

“Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish a common scheme or plan, embracing the commission of two' or more crimes so related to each other that proof of one tends to establish the other, or to connect the defendant with the commission of the crime charged.”

In the case of Johnson v. State, 35 Okla. Cr. 212, 249 P. 971, 972, this court said:

“It is, of course, fundamental that when a defendant is upon trial for an offense he is to be convicted, if at all, for the particular offense charged, and evidence of other offenses is not admissible for the purpose of showing him guilty of the particular offense for which he is on trial. There are, however, several well-settled exceptions. Evidence that tends directly to prove a defendant guilty of the offense for which he is on trial or that tends to< prove some element of the offense charged or to show guilty knowledge, intent, motive, or is so closely linked or connected with the crime charged as to throw light upon it, is admissible, although such evidence may tend to show the commission of some separate offense and does in a measure apparently work injury to the accused. Tudor v. State, 14 Okla. Cr. 67, 167 P. 341; Cross v. State, 11 Okla. Cr. 117, 113 P. 202; State v. Rule, 11 Okla. Cr. 237, 144 P. 807.”

And see Spivey v. State, 69 Okla. Cr. 397, 104 P. 2d 263.

In Cross v. State, 11 Okla. Cr. 117, 143 P. 202, it is said:

“Evidence is admissible, in the trial of a criminal cause, which tends directly to prove the guilt of the accused, although it may also' show, or tend to show, the commission of a separate and distinct felony, and this is true although the admission of such testimony may arouse resentment in the minds of the jury and result in a greater punishment than would ordinarily be inflicted.”

It is well settled that evidence covering the commission of another offense is always admissible when two crimes are so linked together in point olf time or circumstances that one cannot be fully shown without proving the other.

It follows from the foregoing review that the court did not err in overruling the objections interposed to the testimony of the Avitness Mizell.

The testimony of the witness Helen Elliott complained of, it appears, was brought out on cross-examination and was given in response to questions by counsel for the defendants. It related to other purported offense, and Avas incompetent, irrelevant and prejudicial to the defendants. However, it was invited error of which they have no right to complain.

The testimony of the witness Sims was clearly competent and admissible.

It also appears from the record that no. objections were interposed and no exceptions taken to the testimony of the Avitness McGuire as to defendants’ admission with reference to other offenses.

As a general rule, an assignment that the trial court erred in admitting certain testimony will not be considered where no' objection was made or exception taken to the admission of the same.

Finally, it is insisted that the punishment imposed was excessive; that the verdicts fixing the punishment were the result of passion and prejudice on the part of the jury.

It appears that another indictment was returned on the same day as the indictment in this case, charging robbery olf Amos Mizell. In that case, tried three days later, the jury found these two defendants guilty, leaving the punishment to be assessed by the court, and these defendants received an additional sentence of ten years, to run consecutively in the latter case.

Counsel in their brief say:

“We respectfully urge that after taking all the facts into consideration, that the punishment in these two cases was excessive. These defendants were young men, just-mere boys, and a sentence of 35 years in the penitentiary means that they will be compelled to spend the greater portion of their lives in that institution, and in the event this court should fail to agree in this case with the contentions of the defendants upon which they rely for reversal, we think justice requires a modification of the severe punishment dealt out to these two- young men, especially when the records in both cases are considered together, and we hope this court will take into consideration the youth of these defendants, and in the event this conviction is upheld, order and direct a modification of the judgments and sentence of the court so that the defendants within a few years will be given an opportunity to become useful, law-abiding citizens.”

It also' appears that the parents of both the defendants are residents of the state; that the defendant Johnson is a married man; that the defendant Tucker is a married man and father of a baby child.

The first judgment pronounced by the court recites: “that the said Richard Johnson, who1 upon his oath in open court states his age to be 21 years.”

The second judgment recites: “that the said Noah Láveme Tucker, who upon his oath in open court states his age to be 20 years.”

It is both the spirit and intention of the law that punishment shall be imposed in criminal cases for the protection of society and the reformation of the criminal, and sentences should be imposed in keeping with the spirit of the law. After a careful consideration of the whole case, our conclusion is that the punishment assessed by the jury is excessive, and we cannot say that the jury was not influenced by passion and prejudice engendered by the admission of incompetent testimony to which no exceptions were taken. Wherefore the court is of the opinion that the ends of justice require a modification of the judgment and sentence of each defendant from the term of 25 years to a term of five years’ imprisonment in the state penitentiary at McAlester. As thus modified, the judgments of conviction appealed ¡from are affirmed.

BAREFOOT and JONES, JJ., concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    RICHARD JOHNSON et al. v. STATE.
    No. A-9661.
    Sept. 25, 1940.
    (106 P. 2d 149.)

      Ward, Justus & Ward, of Tulsa., for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This is an appeal if rom the district court of Tulsa county, wherein Richard Johnson and Noah Laverne Tucker were jointly tried and each found guilty of robbery with firearms, the jury leaving, the punishment of each defendant to be assessed by the court. Motions for new trial were duly filed and overruled on November 28, 1938; thereupon the court rendered judgments sentencing each defendant to imprisonment in the state penitentiary for a term of ten years. An appeal was perfected by filing in this court on May 25th a petition in error with case-made attached.

The indictment returned and filed in the district court of Tulsa county October 6, 1938, charged in substance that in Tulsa county on the 22nd day of September, 1938, Richard Johnson, Noah Laverne Tucker, and Tom Hollis did then and there unlawfully, willfully, forcibly, conjointly and feloniously, while acting in concert each with the other, take from the person of one Amos Mizell and against his will, personal property, to wit, $20 in good and lawful money by there and then threatening to shoot the said Amos Mizell with a pistol, thereby producing in the mind of said Amos Mizell ifear of immediate and unlawful injury to his person and said fear so produced was sufficient to> and did overcome all resistance on the part of him, the said Amos Mizell.

This is a companion case to> Johnson and Tucker v. State, 70 Okla. Cr. 270, 106 P. 2d 149, involving the same defendants, and the same or similar facts and circumstances. The alleged errors assigned and argued are in substance the same. The state called only four witnesses: Amos Mizell, Jake Sims, Don McGuire, and Earl iStanley.

Amos Mizell, the chief witness, testified that on the night of September 21st, while on his way from Tahlequah to his home in Cushing, his automobile broke down about two miles west of Broken Arrow, in Tulsa county, and he pulled it to the side of the road and went to sleep; that he had left Broken Arrow about 11:30. A car was driven up in front of his car, with lights on him; these two defendants got out of the car and another fe].low, that he identified in the courtroom as Tom Hollis; stuck a gun on him, and asked if he had any money. He said “No,” and he told him to get out of the car; then they searched his pockets and took about $22. One let the air out of his tires and another took his license plates off and put them in their car, then they got in their car, a black Studebaker sedan, which had written on one side “Cloverleaf Cab”, turned around, and drove back toward Tulsa.

The testimony of the other three witnesses was substantially the same as that given by them at the trial of the companion case.

At the close of the evidence on the part of the state, counsel filed the following motion:

“Come now the defendants-, and each of them, at the close of the state’s case, and move the court to- direct the jury to- return a verdict of not guilty and acquit the defendants, for the reason that the evidence is wholly insufficient to establish the crime charged.”

Which motion was overruled. Exception reserved.

The defendants did not testify, and there was no evidence offered on their part.

In this case the undisputed testimony on'the part of the state is stronger and more complete than in the companion case referred to above, to which, Ifor the sate of brevity, reference is here made.

We have carefully examined the record and considered the argument with respect to the errors assigned, and conclude that they are either without substantial merit or else not supported by the record.

While no complaint is made to the court’s instructions, we have examined the same and find them to' be fair in every respect, fully covering the law of the case.

After very careful examination of the record, we have failed to discover anything whereof the defendants have just right to complain.

As shown by the record the defendants were accorded a fair trial, and we see no reason to doubt that their conviction was justified by the undisputed evidence.

For the reasons stated above, and the reasons stated in the opinion of the court in the companion case, the judgments of the trial court must be affirmed. It is so ordered.

BAREFOOT and JONES, JJ., concur.


author: JONES, J.

text:
    ELLIOTT HICKS v. STATE.
    No. A-9676.
    Sept. 25, 1940.
    (106 P. 2d 136.)

      H. A. Johnson, of Perry, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and W. Hendrix Wolf, Go. Atty., of Jay, for defendant in error.
   JONES, J.

The defendant Elliott Hicks was charged in the district court of Delaware county with the offense, of murder, was tried, convicted of manslaughter in the second degree, and sentenced to serve a term of four years in the state penitentiary, and has appealed to this court.

The charging part of the information is as follows:

“Said defendant then and there being did then and there willfully, unlawfully, feloniously and premeditately, and with a premeditated design then and there existing in the mind of him, the said Elliott Hicks, to effect the death of Lydia Hicks, made an assault in and upon the said Lydia Hicks with his feet and hands, and did strike, hit and beat and kick the said Lydia Hicks, on and about the body and did then and there and thereby inflict certain dangerous, and mortal wounds in and upon the body of the said Lydia Hicks, of which mortal wounds so inflicted, as aforesaid, the said Lydia Hicks did die, as was intended by the said Elliott Hicks she should do, contrary to> the form of the statutes, in such cases made and provided, and against the peace and dignity of the state.”

The proof against the defendant was wholly circumstantial, and the only assignment of error before this court is that the circumstantial evidence was wholly insufficient to sustain the conviction.

The defendant and the deceased were married on January 26, 1918. At the time of the occurrence out of which the charge herein arose, the parties were living near the village of Rose, in the hills of Delaware county. The defendant owned about ten acres of land which had two shacks upon it. The defendant and the deceased had five children living at the time of the death of the deceased on February 12, 1938. The oldest daughter, Susie, was married and lived up the hill from the shack in which the deceased and the four younger children were living. The defendant for two. years prior to the alleged homicide had been away from home most of the time. When he was in Delaware county he slept at the cabin where his daughter, Susie David, lived. The deceased had made application for relief and was receiving $20 a month for herself and four minor children.

In 1937 the deceased had charged the defendant with beating her, but this offense was dismissed upon payment of the costs by the defendant.

Early in the evening of February 12, 1938, the defendant had lain down on the bed a.t the lower cabin and gone to sleep; his wife Lydia, the deceased, took their twelve-year-old daughter, Lucille, to the upper cabin, and there had gone to bed, leaving the three younger children at home with the defendant. The defendant awakened and followed them. It was dark in the room. According to Lucille, he put his hand on his wife and told her “to go on down where the kids were.” He spanked Lucille for having left the children and sent her on ahead. She heard her father call to her, but did not understand what he said. Soon aifter she had reached home and gotten in bed, her father came and told her to get some of the neighbors, that her mother had fallen. The defendant got some water and had a younger daughter take him back to where his wife was. . Lucille went for Mr. and Mrs. Miller, Mr. and Mrs. Taylor, and Mrs. Morgan, who were neighbors, and they accompanied her to where her mother was. The deceased was lying on the path about halfway between her home and that of her daughter, near the top of the hill. She was unconscious, but still alive. They carried her to her daughter’s and put her in bed. They gave her first aid by rubbing her and putting hot rocks around her. She was dead when the doctor arrived, and it was too dark for him to make an examination. The next day her body was carried to Pryor for examination.

Dr. J. W. Prowell, the family physician who examined the deceased, testified that he had treated her for female trouble and given her some medicine for heart trouble that was “chronic in a way,” but under favorable conditions he couldn’t say that “she was in any danger from that.” In his examination he did not find “any external bruises or abrasions, but around the neck, back of the neck, and down the back was blue,” and was o'f the opinion that “the bluing of the skin would be more apt to show where they died under heart conditions, than in any other trouble.” He was unable to determine the cause of her death.

Dr. Y. D. Herrington made an autopsy of the deceased the following day. He stated there was a brush bum “right back, extending about midway of the calf of the leg to> about the middle of the thigh; a bruise on the large muscle of the left arm and dislocation of the left shoulder; a bruised place under the costal margin of the ribs on the left side, about the end of the 12th rib.” He had opened the abdominal cavity and found it full of blood, and found the cause of bleeding to be from a rupture of the spleen located under the tenth, eleventh and twelfth ribs on the left side. The spleen has a tough, hard membrane covering it, which had been tom off and caused the bleeding. In his opinion her death was caused by “shock and loss of blood.” That the spleen was ruptured by an external blow oif considerable force; but he did not have an opinion as to whether the condition was caused by a blow or by falling; however, a kick that ruptured the spleen would cause death in a person who did not have a weak heart; that she did not have a bad heart or she would not have lived as long as she did. The direct cause of death was shock and loss of blood, to' the exclusion of heart trouble. He described the discoloration near the ribs, which he stated had a definite outline which caused him to think it had been caused by a severe blow from some external force. That the injury to her side ranged inward and upward slightly. The blow which raptured the spleen came from below it and had to range upward in order to get up under the edge of the ovaries. That it would take a considerable blow to rupture the spleen and dislocate the shoulder of the deceased who was a fairly large woman of about 145 pounds. That the deceased could not have received the injuries which he found on her body by falling forward.

H. W. Green, the undertaker, corroborates Dr. Her-rington as to the external location of the bruises.

The state offered testimony from the neighbors that the defendant and the deceased had not been living together for a long time; that the defendant did not support his wife and children; that the deceased worked as a field hand; that they had never heard of her having fainting spells. They also testified to statements of the defendant concerning the manner in which the deceased was killed, which were materially different from the testimony of the defendant herein.

There was a conflict of testimony as to whether or not there were any large rocks at the place where the deceased fell.

The defendant introduced testimony that the deceased had heart trouble and was subject to fainting spells; that the defendant gave his wife every cent he could make; that the defendant and deceased were living together, but that the defendant spent most of the nights at his daughter’s house. The defendant said it was because his wife received relief for dependents; his daughter said it was because it was so cold, and that he slept on a feather bed that she had there.

The defendant testified in his own behalf that his eyes were so bad that he could not see after dark. On the way home his wife had been a few feet in front of him. They had been walking slowly. His wife told him she had had a letter from her mother and Mary. He told her she had been a long time telling him about it. The deceased disappeared from his view. She had fallen.

The defendant attempted to shwv that the deceased’s dislocated shoulder and ruptured spleen were caused by driving the body over the rough roads to Pryor. There is confusion in the testimony as to how the deceased fell. The defendant says that he had moved her a short distance before the neighbors got there.

Section 2228, O. S. 1931, 21 Okla. St. Ann. § 716, reads as follows:

“Every killing of one human being by the act, procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder, nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree.”

This court stated in Melton v. State, 57 Okla. Cr. 57, 47 P. 2d 195:

“Convictions can be reversed as not supported by evidence only if no substantial evidence tends to show guilt, or evidence is so- insufficient that jury must have acted from partiality, passion, or prejudice.”

In Pickett v. State, 35 Okla. Cr. 60, 248 P. 352, it was held:

“Where the evidence and the reasonable and logical inferences and deductions to be drawn from it are sufficient to convince the jury beyond a reasonable doubt of the guilt of a defendant, this court will not disturb the verdict for insufficiency.”

This court held in Parks v. State, 18 Okla. Cr. 277, 194 P. 281:

“It is only when there is no substantial evidence to support the verdict that the appellate court will reverse on the ground of insufficient evidence.”

The rule repeatedly announced by this court is that it has no power to reverse a judgment of conviction upon the ground that the verdict is not supported by the evidence, unless there is no substantial evidence tending to show the guilt of the defendant, or the evidence fails so !far to- support the verdict that the necessary inference is that the jury must have acted from partiality, passion or prejudice. Underwood v. State, 36 Okla. Cr. 21, 251 P. 507.

Under the rule in Oklahoma where circumstantial evidence is relied upon for conviction, the circumstances proved must not only he consistent with each other, but consistent with the defendant’s guilt and inconsistent with any other reasonable hypothesis other than his guilt. Mahaffey v. State, 44 Okla. Cr. 29, 279 P. 704; Lemke v. State, 33 Okla. Cr. 34, 241 P. 832; Davis v. State, 32 Okla. Cr. 436, 241 P. 500.

The defendant contends that under this rule the facts point just as strongly to the innocence of the defendant as towards his guilt. With this contention we cannot agree. The physical facts surrounding the death of the deceased differ so materially from the defendant’s statements as to how the death occurred that the jury was fully justified in reaching the conclusion that the wife of the defendant came to her death from a blow delivered by the defendant. It is hard for any reasonable man to reach the conclusion that the injuries found on the body of deceased could have been sustained merely by slumping forward in a ifaint as she was walking down the path towards her home. Even conceding for the purpose of argument that the path was full of large rocks, which fact is disputed under the evidence, it would have been difficult for the deceased to fall in such a position as to receive the blows which ruptured her spleen, and caused the discoloration on her left side and back.

The defendant stated that his wife fell forward. Under the testimony of Dr. Herrington, it would have been impossible for her to receive the blow which caused her death by falling forward.

The testimony tends to show that the relationship between the defendant and the deceased was not very pleasant, and his demeanor just prior to the time the injuries occurred to the deceased indicates that he was angry with the deceased and his daughter.

This1 court held in Tallon v. State, 22 Okla. Cr. 89, 210 P. 309:

“Evidence of the actions, conduct, and general demeanor of defendant a short time prior to1 the commission of the homicide is competent as tending to show the state of mind of defendant at the time of the killing.”

See, also, Inman v. State, 22 Okla. Cr. 161, 210 P. 742.

The jury, no doubt, took into consideration the fact that the evidence against the defendant was entirely circumstantial in arriving at their verdict, because the evidence would have justified a verdict of manslaughter in the first degree with a more severe punishment imposed.

No material error appearing in the record, the judgment of the district court of Delaware county is hereby affirmed.

DOYLE, P. J., and BAREFOOT, J., concur.


author: BAREFOOT, J.

text:
    ALVIN WOOTEN v. STATE.
    No. A-9684.
    Sept. 25, 1940.
    (106 P. 2d 132.)

      W. L. Boner and Rob’t N. Allen, both of Durant, for plaintiff in error.
    Mac Q. Williamson, Atty. Den., and Bill Steger, Co. At-ty., of Durant, for defendant in error.
   BAREFOOT, J.

The defendant, Alvin Wooten, was charged by information filed in Bryan county with the larceny of cattle; was tried, convicted, and sentenced to serve a term of five years in the penitentiary, and has appealed.

The conviction of the defendant, Alvin Wooten, grew out of the larceny of two head of cattle: “One three year old brindled white face steer; one pale red face, one year old bull,” the property of Granville Baxter, a resident of Bryan county. The record reveals that these cattle, together with other cattle belonging to Mr. Baxter, had been placed in the “Turnbull pasture” in Bryan county about 30 days prior to the larceny on the 29th day of April, 1937. They were in the charge of Mrs. Turnbull; and she had given the defendant, Alvin Wooten, who fanned upon the premises, the sum of $1 per day to look after and take care of the cattle.

During the years of 1986 and 1937 a great many cattle had been stolen in Bryan county. This had become so extensive that at some time, the date not being quite clear as shown by the record, the cattle owners and raisers of that county organized a Cattlemen’s Association, one of the purposes of which Avas to assist in the apprehension of those who' had been stealing cattle in that and surrounding counties.

The evidence reveals that Ruel Taylor, who Avas for many years sheriff of Bryan county and who had been employed in the Criminal Bureau of Identification in Oklahoma City, had been appointed by the Governor and stationed at Durant to be of special assistance in the apprehension of cattle thieves. The record also reveals that money was subscribed by members of the Cattlemen’s Association to1 assist in this work; but the salary of Mr. Taylor was paid by the state. In carrying on his work, Mr. Taylor had contacted Fat Cummings, a former convict who had served several terms in the penitentiary, one for the larceny of cattle, to assist him in his work. As a result of this employment of Cummings; the defendant was charged in two' cases with the larceny of cattle, one of the cases being the case here under consideration; the other case has been tried, and the defendant was acquitted.

The evidence reveals that out of the employment of Cummings by Taylor, he had approached the defendant, Alvin Wooten, and he had agreed to steal cattle, and especially the cattle in question; and Cummings reported this agreement to Taylor and informed him of the date and the place. Taylor then contacted one Earl Smith, who bought and sold cattle at Durant and who owned a truck, and made arrangements for him to meet Wooten and arrange the details of the stealing of the cattle.

Earl Smith had contacted Taylor prior to that time, and after talking with Cummings; and Taylor made arrangements with Smith to go in his truck and help steal the cattle, with the understanding that when he brought them to Durant he was to deliver them to the pens of one M. L. Banks with whom Taylor had made arrangements to take care of them until the owners were located.

The witness Earl Smith testified that in compliance with the agreement on the evening of April 29, 193T, he and his son-in-law, Leon Duncan, proceeded with the truck to the Turnbull pasture, and there in the nighttime met the defendant, Alvin Wooten; and the two cattle above described were stolen and put in the truck and brought to Durant, where he immediately contacted Ruel Taylor, who went with him to the Banks pens; and the cattle were unloaded there at 10:30 at night. He further testified that the understanding between him and the defendant was that they were to divide the proceeds of the sale of the cattle equally, and that the night they were stolen he estimated what they would bring and offered the defendant his half at that time; but the defendant told him, “No,” that he Avould be in town Saturday, and he could pay him at that time; that defendant came on Saturday and he paid him $20 or $30.

The money paid by Smith to the defendant was money that had been furnished by Taylor; and the inference is that it was money that had been subscribed by the Cattle Raisers Association.

To show the relationship between the witnesses Taylor, Cummings, and Smith, this evidence from the record is quoted:

Witness Ruel Taylor testified:

“Q. Tell what connection Fat was to play in the matter of apprehending cattle thieves. A. He came and told me that they were going to steal some cattle. Q. Did you consider him to assist or aid you to apprehend people that Avere stealing cattle? A. Yes. Q. Now, tell the court and! jury what, if any, arrangements you made with him as to what Avork he was to do? A. He Avas to let me know when they would steal these cattle and who they was and where they was going to take them to. * * * Q. How long had this partnership with Fat been before this occurred? A. This particular case? We had some more beside this. I don’t know, three or four months or five, I guess. Q. Fat had been in the penitentiary prior to that? A. Oh, I think two or three times. * * * Q. He had been in your employ three or four months? A. Probably so: Probably three or four months. * * * Q. And Fat was the stool-pigeon that you picked up? A. Yes, sir.”

The defendant on the witness stand in his own behalf denied all the testimony in substance herein above detailed. He stated that he did not participate in the stealing of the cattle and had no knowledge that they had been stolen until his arrest.

He produced six witnesses in his attempt to prove an alibi, his alibi being that he was with a fishing party on Boggy creek on the night the witnesses state the cattle were stolen. The witnesses Avho testified as to the alibi Avere not certain as to the date and were much confused on cross-examination. However, this question was for the jury; and the jury having found the defendant guilty, it would not be considered by this court.

The defendant also produced a number of Avitnesses who testified to his previous good character and reputation prior to the filing of these charges.

An examination of the record reveals that defendant was unable to pay for a transcript of the record for an appeal; that he was a tenant farmer with a family of eight children, the oldest 15 years of age; one child was born during the trial of this case; and he was unable to hire a doctor to attend his wife. He Avas unable tO' pay his lawyer who represented him in the trial beloAV; and for some reason undisclosed by the record, no brief has been filed' in his behalf and none has been filed by the state. It is an established rule of this court that where no brief has been filed by the defendant, this court will examine the record; and unless some fundamental error appears, which Avould deprive the defendant of a fair and impartial trial, the case will be affirmed. With this rule in mind, we have carefully examined this record.

At the close of this trial, counsel representing the defendant presented to the court two requested instructions, the first of which requested the court to instruct the jury upon the question of “entrapment” as disclosed by the evidence heretofore noted. It is unnecessary to quote this instruction in full. The second requested instruction presented to the jury the question of “accomplice,” and that if the jury found the witness Earl Smith to be an accomplice, it would be necessary that his evidence be corroborated. The trial court refused to give either of the requested instructions; nor did he, in the general instructions given, refer to' the question of “entrapment” or to “accomplice.”

Under the evidence as revealed by the record we ai*e of the opinion that the defendant was either entitled to the instruction upon the question of “entrapment” or upon the question of “accomplice,” and probably entitled to both of them. We think that the refusal of the court to so instruct the jury under the evidence was fundamental error and requires a reversal of this case.

The case of Shouquette v. State, 25 Okla. Cr. 169, 219 P. 727, 731, in an opinion of Judge Bessey, fully discusses the question of “entrapment.” It is unnecessary to quote from the same at length. Many of the facts in that case are identical with the facts in the case at bar.

Under the evidence here, there can be no question but that the witness Cummings was employed at the suggestion of Ruel Taylor, and that he was paid for his services by the fund raised by'the Cattle Raisers Association; that he was the instigator of the plan and scheme for the defendant to commit the larceny, and that he had the witness Earl Smith contact the defendant and make plans to carry out the larceny as planned by Cummings. It is a recognized rule that under certain conditions it becomes necessary to use stringent methods for the apprehension of those who violate the law. The general rule in cases of this character is expressed in the Shouquette case, supra, when the court said:

“Ordinarily, it is not against public policy for officers to set a trap for one suspected of planning the commission of a crime, and if he commits the crime, even though aided or encouraged by the officer who laid the trap, the fact that he was so entrapped will be no defense. This rule will not apply, however, where the decoy proposed a robbery, and was the chief moving actor in the forcible taking of the property. To hold the aiding offender criminally responsible, he must have participated in every ingredient of the offense charged. 1 Brill, Enc. Crim. Law § 187; Woo Wai v. United States, 223 F. 412, 137 C. C. A. 604; Roberts v. Territory, 8 Okla. 326, 57 P. 840; People v. McCord, 76 Mich. 200, 42 N. W. 1106; United States v. Echols (D. C.) 253 F. 862; Brill, supra, § 188; State v. Currie, 13 N. D. 655, 102 N. W. 875, 69 L. R. A. 405, 112 Am. St. Rep. 687.”

See, also, Warren v. State, 35 Okla. Cr. 430, 251 P. 101; Rider v. State, 53 Okla. Cr. 393, 12 P. 2d 552.

The facts in the case at bar come within the rule announced in the above case. There can be no question but that Fat Cummings was employed by Officer Ruel Taylor, and that he was the instigator of the deal for the stealing of the cattle by the defendant; that the defendant would not have acted had he not planned and outlined the same. It was Cummings who put the defendant in contact with Smith; and there can be no question as to the contact between Cummings and Officer Taylor.

The case of Woo Wai v. United States [223 F. 415, 137 C. C. A. 604], above cited, announces the true rule:

“We are of the opinion that it is against public policy to sustain a conviction obtained in the manner which is disclosed by the evidence in this case, talcing the testimony of the defendants to be true, and that a sound public policy can be upheld only by denying the criminality of those who are thus induced to commit acts Avhich infringe the letter of the criminal statutes.”

The distinguishing element is: Did the criminal intent to commit the offense have its origin in the mind of the defendant or the officer? This whole record discloses that the commission of this crime was first created by the witness Cummings, who was employed by Officer Enel Taylor, and not in the mind of the defendant. To say the very least, this issue was raised, and the court should have submitted this question to the jury when properly requested by written instruction.

Further, in the Shouquette Case, supra, the court said:

“Gustafson and Brown were peace officers — officers of the court — who were in part responsible for this alleged robbery. So frequently it has been demonstrated, and the facts in this case again demonstrate, that the practice of employing one thief to catch another, by participating with him in the commission of the offense, is of doubtful propriety. It is a bad investment, financially. Plans like this to entrap bank robbers are often, as in this case, executed at the expense of insurance companies that write burglary insurance, and under such circumstances, where a private detective, in conjunction with officers of tbe court, acts as a decoy and is himself the chief instigator of and performs the major part of the offense, such scheme will he deemed to' be against public policy, constituting a good defense against the conviction of any who were induced to participate, and who would not have participated without such inducements. Persons toith criminal inclinations may never commit crime tvhere no favorable opportunities are presented, and persons of that character shoiild not be encouraged in the commission of crime by private detectives or by officers of the la-iv. The evils resulting from such practice outweigh the good that may be accomplished.”

Just so in this case, it is very doubtful if this defendant, who was a very poor man and was receiving $1 per day ¡for the taking care of the cattle stolen, would ever have conceived the idea of committing this crime unless encouraged in the commission of the same by the witness Cummings, who had been to the penitentiary at least twice.

It is, however, not necessary for this court to pass upon this question. If we were passing upon the sufficiency of the evidence to convict the defendant after a verdict by the jury, this case would not be reversed; but the evidence as shown by this record was such that the issue of entrapment should have been by the court submitted to the jury, and the same is true upon the question that the witness Earl Smith was an accomplice of defendant, as stated in the Shouquette Case:

“An instruction of this character was offered, but refused by the court. The instruction offered did not correctly state the law, but it was sufficient to call the court’s attention to1 the issue of consent or lack of consent, making it the duty of the court to advise the jury as definitely as possible upon that issue.”

The same is true in the case at bar. The requested instructions did not clearly state the law, but they did state the issue; and the court should have properly charged tbe jury upon tbe question of “entrapment/’ or upon tbe tbe question of “accomplice/’ as was developed by tbe evidence in tbe case.

Tbe jury wbicb tried this case evidently bad such ideas in tbeir mind. When tbe verdict was rendered in tbe case, finding defendant guilty and assessing, bis punishment at five years in the penitentiary, they also> rendered another verdict which reads as follows:

“We, tbe jury duly impaneled and sworn in tbe above entitled case, do upon our oaths, recommend tbe court to suspend tbe sentence given defendant, during good behavior.”

This verdict under the law was not proper nor binding upon tbe court; yet, at tbe same time, it should not militate against the defendant. If tbe court bad properly instructed tbe jury as above indicated, it is quite likely tbeir verdict would have been different. Estes v. State, 35 Okla. Cr. 335, 250 P. 809; Walker v. State, 11 Okla. Cr. 339, 127 P. 895; Teel v. State, 53 Okla. Cr. 200, 11 P. 2d 197; Knopp v. State, 49 Okla. Cr. 416, 295 P. 228.

We are of tbe opinion that tbe court committed fundamental error in refusing to properly instruct tbe jury as above set forth, and for this reason tbe judgment of tbe district court of Bryan county is reversed.

DOYLE, P. J., and JONES, J., concur.


text:
    ANNA (TINY) PICKENS v. STATE.
    No. A-9703.
    Sept. 25, 1940.
    (106 P. 2d 127.)

      Mathers & Mathers, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   BAREFOOT, J.

The defendant Anna (Tiny) Pick-ens was convicted in the court of common pleas of Oklahoma county of the crime of unlawful possession of intoxicating liquor and sentenced to' pay a fine of $75 and serve a term of 45 days in the county jail, and has appealed.

This charge grew out of a search of the defendant’s home and garage at 1930 N. E. 10th street in Oklahoma City on the 29th day of June, 1938. The officers found nine pints of tax paid whisky secreted under a trapdoor in the garage of defendant. At the time the officers entered the premises, two men were sitting, at a table and were being served with whisky in glasses by defendant, and two other persons were in the kitchen; and glasses were on the table, which the officers testified smelled of whisky, also chipped ice, some lemons, and bottles of mix. A pint bottle of whisky about one-half full was found on a shelf in the kitchen. Conversations were testified to by the officers, which clearly demonstrated that liquor was being sold by the drink on the premises.

Defendant’s place had been searched upon other occasions by the officers; and they testified that the place had a bad reputation as a place where intoxicating liquor was sold.

The officers had warrants for the arrest of two parties who were sons-in-law of the defendant and wlm resided at the premises either at the time the search was made or shortly prior thereto.

For reversal of this case, it is contended that the court erred in failing to sustain a motion to quash the search warrant issued herein, it being contended that the defendant lived at 1930 E. Alice street and not at 1930 N. E. 10th street. Counsel in his brief states that these two addresses are a block apart; but the evidence in the record does not substantiate this statement. It shows that Alice street and N. E. 10th street in the place where the search occurred are one and the same, and that 1930 N. E. 10th street and 1930 E. Alice street would be at the same location. In addition, the officer who procured this search warrant, knew the defendant, and knew the address, and secured the search warrant for the purpose of searching the defendant’s place. The defendant was present, and had charge of the premises at the time of the search and was serving liquor there at that time.

Under the previous decisions of this court, these facts are sufficient to' uphold the search warrant issued in this case. Mitchell v. State, 43 Okla. Cr. 63, 277 P. 260.

It is further contended that the place searched was the home of three families, and for that reason the search warrant was void and should have been suppressed. The evidence reveals that the defendant was in charge of the premises; that one room was rented to her son-in-law and his wife. The evidence does not reveal that either of these rooms was searched by the officers. The liquor was found in the garage, under a. trapdoor where the boards had to be removed, and also the kitchen which was occupied by defendant.

When told by the officers she would have to go; that they had found her plant with the whisky:

“Sbe wanted to know wbicb one; and sbe said sbe only bad six pints, bottles; and I said, ‘Well, yon can count them and there are nine here.’ Q. Did sbe count it? A. Yes, sir. Q. And find there were nine? A. Yes, sir. Q. What was said then? A. Sbe said, ‘I just bad it for her friends.”

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

DOYLE, P. J., and JONES, J., concur.


text:
    Ex parte CLYDE MEADOWS.
    No. A-9869.
    Oct. 2, 1940.
    (106 P. 2d 139.)

      Hulsey & Hulsey and W. N. Redwine, all of Mc-Alester, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for respondent.
   JONES, J.

The petitioner, Clyde Meadows, filed his original application for a writ of habeas corpus before this court, in which he alleges that he is unlawfully imprisoned at the State Penitentiary under a void judgment and sentence pronounced against him by the district court of Comanche county, Okla., on April 30, 1932.

The petition, in substance, alleges that the petitioner was sentenced on April 29, 1932, by the district judge of Tillman county, Okla., to serve a term of seven years in the State Penitentiary; that after the sentence had been pronounced against the petitioner, the sheriff of Tillman county committed the petitioner to the custody of the sheriff of Comanche county, and was by the sheriff of Comanche county taken to Lawton, in Comanche county; and .on April 30, 1932, was arraigned before a justice oif the peace on a complaint charging the petitioner with the crime of robbery with firearms. That on the said arraignment, the justice of the peace demanded that petitioner immediately plead to said complaint. That said justice of the peace did not advise the petitioner of the nature of the charge filed against him, and did not inform petitioner of his statutory and constitutional rights to have the benefit of counsel before entering his plea to said complaint, and did not inform petitioner of his right to a reasonable time in which to plead to said complaint or of his right to a preliminary hearing before said justice of the peace; and this petitioner did not waive and was not asked to waive any of his said statutory or constitutional rights. That the petitioner was illiterate, ignorant, and entirely uninformed as to court procedure or as to his rights in the premises, and was under the impression that there was nothing for him to do but plead guilty, which he did do; and upon making such plea, he was immediately held for trial in the district court of Comanche county without bond.

The petition further alleges that on the same day, to wit, April 30, 1932, the petitioner was taken before the judge of the district court of Comanche county and was arraigned on an information charging the crime ¡of robbery with firearms. That said arraignment was only a few minutes after he had been bound over to the district court by the justice of the peace. That it was then demanded of him that he enter his plea to the information filed against him. That the district court did not advise the petitioner of the nature of the alleged crime, and he was not served with a copy of the information, together with a list of the witnesses to be used in chief against him; did not advise this petitioner of his right to benefit of counsel and did not appoint counsel to represent him, and did not inquire of your petitioner if he desired to waive such statutory and constitutional rights; and that your petitioner did at that time plead guilty to said information, whereupon the district judge, without appointing a time, at least two days after plea had been entered, and without inquiring of the petitioner if he waived such right, and without the petitioner waiving, such right, the court immediately pronounced sentence, committing this petitioner to serve a term of 40 years at hard labor in the State Penitentiary; and the petitioner was taken on the same day to the State Penitentiary at McAlester, Okla., and delivered to the warden thereof, who has held him in custody since that date.

The petition further alleges that the petitioner served the sentence pronounced against him in Tillman county on December 17, 1935, and that he has been unlawfully restrained in prison since that date by reason of the void judgment and sentence pronounced against him in Comanche county.

The petition prays for the immediate discharge of the petitioner.

Attached to the petition is a copy of the complaint filed before G. W. Horne, justice of the peace for Lawton city district in Comanche county, wherein it is alleged that the petitioner, together with one Glen Wilkerson and Lottie DeWoody, committed the offense of robbery with firearms in Comanche county on April 27, 1932. The complaint is marked filed April 30,1932, and on the same date the following order was indorsed on said complaint:

“April 30, 1932, the within named defendants arained entered plea of guilty was by me held to answer the same in the district court of Comanche County, Oklahoma, without bond, was by me committed until such time as they may be tried in said court,
“G. W. Horn, Justice of the Peace.”

The information was filed against the same three defendants, alleging the same offense as stated in the preliminary complaint, and is marked filed April 30, 1932.

The judgment and sentence attached to the petition reads as follows:

“Now, on this 30th day of April, 1932, being one of the regular judicial days of the March, 1932, term of said district court, the above-named defendant, Clyde Meadows, appeared and is present in person before the bar of said court for arraignment upon the charge contained in the information in said cause, and thereupon said Information was read to said defendant Clyde Meadows and he was asked by the court whether he is guilty or not guilty of the crime charged in said Information. And thereupon the said Clyde Meadows defendant in said cause, voluntarily and in open court says he is guilty of the crime of robbery with firearms as charged in the information, and
“Thereupon the said defendant is asked whether or not he has any just cause to show why judgment and sentence for said crime should not be pronounced against him and the defendant failing to show any just cause, the court accepted said defendant’s plea of guilty as charged in said information, find the defendant guilty as charged therein.
“It is therefore, ordered, adjudged and decreed by the court that said defendant Clyde Meadows for the crime by him committed be sentenced to- serve a term of Forty (40) years at hard labor in the State Penitentiary located at McAlester in the State of Oklahoma, from and after his delivery to the warden thereof and that he pay all costs of this prosecution, taxed at $96.
“It is further ordered by the court that the said defendant be committed to the custody of the sheriff of Comanche county until said sheriff or someone designated by him shall transport said defendant to the penitentiary, located at McAlester, Oklahoma, when said sheriff shall deliver said defendant to' said warden or the person designated by him, to be by said warden held and confined in said penitentiary at hard labor for a period oif forty (40) years, from and after his delivery to the warden thereof.
“It is further ordered by the court that the clerk of this court make two certified copies of this judgment and deliver same to said sheriff, one of which shall be his warrant and authority ifor keeping said defendant in his custody until he or someone designated by him shall transport him to said penitentiary and for the delivery of the defendant to said warden and the other of which he shall deliver to' the warden or keeper of said penitentiary which shall be his warrant and authority for the detention and confinement of said Clyde Meadows in said penitentiary as herein directed.
“It is further ordered that said sheriff make due return oif how he executed this judgment.”

The warden of the State Penitentiary has filed his return and response to the petition, in which he admits that the said Clyde Meadows is being imprisoned in the State Penitentiary on account of his conviction in the district court of Comanche county under the judgment and sentence, a copy of which is attached to the petition.

The response alleges that the petition does not state facts sufficient to warrant the release and discharge of the petitioner; and the respondent further denies each and every material allegation contained in said petition, except such as is admitted by the return. A copy of the judgment and sentence, which is the authority of the warden for the imprisonment of the said Clyde Meadows, is attached to his response. It is an exact copy of the judgment and sentence attached to the petition filed herein.

On June 19, 1940, the petitioner appeared before this court and testified to substantially these facts: That he was born in Oklahoma and had been in Oklahoma all of his life; that he was 20 years old at the time of the commission of the offense of robbery with firearms in connection with the robbery of the bank at Indiahoma, in Comanche county, on April 27, 1932; that he had never been in jail before he was arrested at that time; that after the bank was robbed on April 27th, he and his companions held up a farmer in Tillman county, and took his automobile away from him, and fled into Texas; that they were caught in Texas and returned to Tillman county, where they were charged with the offense of robbery with firearms; that they pleaded guilty and were sentenced by the district judge of Tillman county to a term of seven years in the State Penitentiary; that the sheriff of Comanche county came over to Frederick and took him and his codefendants back to Lawton; that they stayed all night in jail on April 29th; that the next morning they were taken before the justice of the peace who read a paper to them charging them with robbery with firearms; that they pleaded guilty before the justice of the peace; that a few minutes later they were taken before the district judge; that they were never furnished with a copy of the complaint before the justice of the peace nor with a copy of the information filed against them in the district court, and that it was not read to them in the district court; that no copies of the names of the witnesses to be used against them were ever served upon them; that when they were taken before the district judge, the judge ordered them to stand up and asked them if they were guilty, and he answered, “Yes”; that the judge sentenced him to serve 40 years in the State Penitentiary; that the judge did not explain to him the seriousness of the charge against him, and did not tell him that he had a right to an attorney, and did not appoint an attorney for him; that he did not communicate with any of bis relatives or anybody else while he was in jail at Lawton, bnt was taken on to the penitentiary about 4 o’clock in the afternoon of April 30th; that he had been in the penitentiary since that time, making a total, altogether, of eight years that he had spent in the penitentiary since his incarceration; that all of the money taken from the bank was ifully recovered; that when he was taken before the district court at Lawton, there was no one present except the assistant county attorney, sheriff, and the judge; that he had been as far as the sixth grade in school, and kneAV nothing about court; that his codefendant was only 17 years of age and received the same sentence.

In support of the response, there was. introduced in evidence an affidavit of the county attorney of Comanche county, which reads as ¡follows:

“Dwight Malcolm, of lawful age, having been first duly sworn upon his oath deposes and states:
“That he was county attorney of Comanche county, Okla., at all dates and times mentioned in the foregoing statement; that on the evening of the 26th day of April, 1932, Clyde Meadows, G-len Wilkerson and Lottie De-Woody (a girl) entered the home of A. B. Moore, president of the Bank of Indiahoma, located in Comanche county, and, at the point of gun held the family at point of gun prisoners or hostages throughout the night; that they stated their purpose of robbing the bank and were advised that the time lock would make it impossible to get the safe open until the next morning; that the two men made repeated threats against the members of the family should any of them attempt to escape; that the next morning the three took Mr. Moore to the bank and advised members of the family that Moore’s life would be in danger should an alarm be given; that they obtained approximately $1,900 from the bank and were captured later that day, the 27th day of April, 1932, in an adjoining county; they were returned to1 this county and charges of ‘robbery with firearms’ were filed against them in the court of Honorable G. W. Horne, justice of the peace, that they were advised of their rights but manifested their desire to get it over with, inasmuch as they had been under the observation tof the entire Moore family for many hours and they knew that their identification and conviction were certain; that they waived hearing before the magistrate and the case was forthwith transmitted to the district court, Avhere they were again brought before the court and the charges again read to them and they were again advised as to their rights by Honorable E. L. Richardson, district judge. The apparent speed of their pleas in the district court 'was due to the desire of the defendants after they had been fully apprised and were aware of their legal rights. The two men were sentenced to- serve a, term of 40 years; this sentence was no- doubt due to their acts in kidnapping and holding as hostages the Moo-re family. The girl, Lottie DeWoody, was given a suspended sentence for the reason that she apparently disapproved of such acts- of violence as was evidenced by her attempt to persuade the boys to not go through with the robbery.”

Also, an affidavit from the district judge reads as follows:

“On this day personally appeared E. L. Richardson, who made oath that he was the district judge of Comanche county, Oklahoma, on April 30, 1932, and as such judge received a plea of guilty from Clyde Meadows, who- then stood charged in that court with the crime of robbery with firearms.
“Affiant further says he recalls the circumstances surrounding the plea of guilty and that the defendants were advised of their constitutional rights, and were particularly advised that they might have counsel, and were advised to confer with counsel. As a matter of fact, an attorney was called to- the courthouse for the purpose of conferring- with them in the event they wished to- confer with counsel, and were advised of the presence of the attorney and his willingness to- confer. The defendant and his codefendants all stated that they did not wish to confer with counsel, and understood what they were charged with. They were also advised of the punishment that might be inflicted.
“After the advice and refusal, the court inquired of the attending officers who had made the investigation and had them in custody, and after hearing from them as to what had been done the court asked Mr. A. B. Moore, president of the Bank, at Indiahoma, to make a statement. From these statements, it appears that this defendant and his codefendants entered the home of Mr. Moore early in the evening and kept Moore and his family in custody the entire night, and on the following morning one of the defendants remained at the home of Mr. Moore to> prevent his wife from communicating with anyone while this defendant carried Moore to the bank and got the money from the bank, and drove back by Moore’s residence and picked up his codefendants and proceeded south through Tillman county, where, for some reason, they decided to abandon their car and forced a farmer to give them his car, which they took and proceeded into Texas, where they were arrested.
“After these statements were made; the defendants were asked if they were true and they answered in the affirmative, and the court felt that 40 years was a reasonable punishment, under the circumstances, and from the attitude of the defendants in court.”

To refute this affidavit, the petitioner introduced in evidence a letter written to the warden of the State Penitentiary in which the judge stated with reference to the petitioner Clyde Meadows, “The above-named prisoner was sentenced by me several years ago for an offense which I do not now recall.”

There was also admitted in evidence a certified copy of the minutes from the records of the court clerk’s office showing what occurred in the courtroom at the time of the sentence, as follows:

“And now at this time April 30, 1932, Enter Order, Defendants Glen Wilkerson and Clyde Meadows, are now before the court for arraignment upon the charge of robbery with firearms, and
“Thereupon the information is read and defendants each enters his separate plea of guilty as charged in said information.
“Thereupon enter order sentencing said defendants Glen Wilkerson and Clyde Meadows, to each serve a term of forty (40) years in the State Penitentiary At McAles-ter, Oklahoma, time bo begin at date of delivery to the warden of said penitentiary.”

This was a capital offense. The petitioner could have been punished by death in the electric chair. It is undisputed that the petitioner was a minor at the time of the charges filed against him. It is admitted that the preliminary complaint was filed against the petitioner on April 30th, and that on the same day the petitioner was arraigned in district court and sentenced, following his plea oif guilty to the information.

It is well settled in this jurisdiction that the writ of habeas corpus will not lie to correct purely procedural errors, and is not designed to interrupt the orderly administration of the laws by a competent court acting within the limits of its jurisdiction. 12 R. C. L. 1192; Ex parte Grant, 32 Okla. Cr. 217, 240 P. 759.

It is also well settled, however, that where the lower court does not have jurisdiction to' pronounce the judgment and sentence, the question may be raised in a habeas corpus proceeding. Ex parte Barnett, 67 Okla. Cr. 300, 94 P. 2d 18; Ex parte Hollins, 54 Okla. Cr. 70, 14 P. 2d 243; Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461; Ex parte Parks, 93 U. S. 18, 23 L. Ed. 787.

In the case of Ex parte Barnett, supra, we held that a. court’s jurisdiction at the beginning of trial may be lost in the course of the proceedings due to the failure to complete the court by providing counsel for an accused who is unable to obtain counsel, who has not intelligently waived his constitutional guaranty and whose life and liberty are at stake. Both tbe state and federal Constitutions provide that no man may be deprived of bis life, liberty or property, without due process of law. Section 1, art. 14, Amendment to Constitution of the United States; Section 13419, O. S. 1931, Okla. St. Ann. Const, art. 2, § 7.

In the case of Ex parte Barnett, supra, Judge Doyle, now Presiding- Judge of this court, wrote an interesting, and well-reasoned opinion. The leading cases from this state and the United States Supreme Court bearing on this question are set forth and discussed at length in that opinion; the conclusions arrived at therein apply with equal force to- the case at bar, and a repetition of the statements therein made would only unduly lengthen this opinion, and the same will not be set forth herein.

Certain principles of law have become definitely established by reason of that opinion:

“Under Bill of Bights, sec. 20, Okla. St. Ann. Const., an accused has the right to consult with counsel and to be fully advised as to' his rights, and as to- the consequences of his act before entering his plea to the indictment or information.”
“A plea of guilty should be entirely voluntary, and should be made by one competent to know the consequences thereof, and should not be accepted until after the defendant has been fully advised by the court of his rights and the consequences of his plea.”
“When a person is held in custody under a void order of commitment, or is imprisoned without due process of law under the sentence of any court of the state, it is not only within the authority of this court, but it is its duty upon habeas corpus to1 inquire into the illegality of the commitment when the matter is properly brought before it by petition, and if it be adjudged that the order of commitment was made without authority of law, the person will be entitled to a discharge from custody in order to preserve the constitutional right of all persons not to be deprived of liberty without due process of law.”
“A person prosecuted for a crime may waive the rights guaranteed to him by Bill of Bights, relating to trial by jury, right to be heard by counsel, etc.”
“Courts indulge every reasonable presumption against a waiver of fundamental constitutional rights, and do not presume acquiescence in their loss.”
“Whether one accused of crime has waived his right to the assistance pf counsel for his defense must depend in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”
“Habeas corpus is an available remedy to one who has, without having effectively waived his constitutional right to the assistance of counsel, been convicted and sentenced and to whom expiration of time has rendered relief by an application for a new trial or by appeal unavailable.”
“One charged with crime is as much entitled to assistance of counsel in preparing for trial, as at the trial itself.”
“In a felony case, where the defendant is unable to employ counsel and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law.”
“A judgment of conviction of one who did not effectively waive his constitutional right to the assistance of counsel for his defense is void as having been rendered without jurisdiction.”

The facts herein are more strongly in favor of the petitioner than they were in the Barnett Case, supra. Here we have a minor, uneducated, inexperienced, and charged with a capital offense. The judge in his affidavit states that he advised the petitioner of his right to counsel, but that the petitioner did not wish to confer with counsel. The minutes of the court should reflect what occurred at the arraignment. If counsel is appointed for the accused or if the accused refuses to accept the advice of counsel after being- advised of his right thereto- by the court, the minutes should so show. The presumption, where the record is silent, is that the offer to appoint counsel was not made. As was stated by the United States Supreme Court in the first paragraph of the syllabus of Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461:

“Courts- indulge every reasonable presumption against a waiver of fundamental constitutional rights, and do not presume acquiescence in their loss.”

This court realizes that in a great many instances the court clerk neglects to set forth in the minutes all that actually occurred upon an arraignment. We are also quite sure that a great proportion of those who are incarcerated in the penitentiary would be willing to- swear to almost anything to secure their release. But with a knoAvledge of these conditions, it still appears to- us in the instant case that the court and the county attorney were too hasty in trying to get this- minor off to- the penitentiary. However worthy the motives of the prosecution might have been, it is always better in a capital case to wait at least two- days before pronouncing sentence where the accused has waived his right to the assistance of counsel.

In Sutton v. State, 35 Okla. Cr. 263, 250 P. 930, 934, it is said:

“It is true that many constitutional guaranties may be waived by an accused person who- comes into court represented by counsel and being fully advised of all his rights, and in such cases- it might be said that he waives a right for which he does not ask. However, the record in this case shows that appellant did not waive any constitutional or statutory right, except in so- far as his plea of guilty waived bis right to be tried by a jury. In our opinion the constitutional right to be represented by counsel and the right in capital cases, at least two days before the case is called for trial, to be furnished with a list of the witnesses, together with their post office addresses, are essential to due process of law guaranteed to the citizen by section 7, Bill of Bights. We are inclined to think that a conviction had by a denial of these constitutional rights simply amounts to judicial lynch law.”

Where the offense charged is a capital one and the accused is young, illiterate, and inexperienced in court matters, the court should proceed with caution. The caution to be exercised, of course, depends upon the gravity of the offense charged. In this connection, we wish to state that no general, abstract rules can be set forth which will apply to every case, but that the question as to whether or not the judgment and sentence has been passed in conformity with the Constitution and statutes depends upon the facts in each particular case. Our opinion is that the judgment and sentence rendered against the petitioner by the district court of Comanche county on April 30, 1932, is void, and should be vacated and set aside.

With this conclusion established, the question now arises as to whether or not the accused is entitled to an unqualified discharge. In his petition herein, the accused asks that the judgment and sentence be vacated, and that he be fully and finally discharged from the penitentiary.

It is true that this court has heretofore in several cases upon the issuance of a writ of habeas corpus given the petitioner an unqualified discharge from his incarceration.

We have now arrived at the conclusion that where questions raised in the petition concern the matter of the denial of some of the accused’s statutory or constitutional rights in connection with the arraignment and pronouncement of tbe judgment and sentence against tbe accused, tbe proceedings subsequent to tbe filing of tbe information in the district court should be vacated; but tbe accused should' be remanded to the district court and there proceeded against tbe same as if no arraignment had ever been held upon the information filed against him.

This conclusion is sustained by both the federal and state authorities. As was held by the United States Supreme Court in the case of In re Bonner, 151 U. S. 242, 14 S. Ct. 323, 326, 38 L. Ed. 149:

“Much complaint is made that persons are often discharged from arrest and imprisonment when their conviction, upon which such imprisonment was ordered, is perfectly correct; the excess of jurisdiction on the part of the court being in enlarging the punishment, or in enforcing it in a different mode or place than that provided by the law. * * * The judges of all courts of record are magistrates, and their object should be, not to turn loose upon society persons who have been justly convicted of criminal offenses, but where the punishment imposed, in the mode, extent, or place of its execution, has exceeded the law, to have it corrected by calling the attention of the court to such excess.”

See, also, Johnson v. Zerbst, supra, and Copeland v. Archer, 9 Cir., 50 F. 2d 836.

In the case of Ex parte Robnett, 69 Okla. Cr. 235, 101 P. 2d 645, 647, this court held :

“A void judgment may be vacated in a habeas corpus proceeding. When the judgment is thus vacated, the proceedings should be remanded to the trial court where the defendant may be tried on the merits .of the case pending against him. If the defendant’s rights have been prejudiced to such an extent that he cannot have a fair trial by reason of disclosures made at the first hearing or for any other reason, this court may order his release from custody.”

This court has, heretofore, in other cases without passing directly upon this question, remanded the petitioner to tbe district court for further proceedings. See Ex parte Hollins, supra, and Ex parte Lyde, 17 Okla. Cr. 618, 191 P. 606.

The Supreme Court of Oklahoma in the case of Ex parte Smith, 150 Okla. 98, 300 P. 635, held that where a man is confined in the hospital for the insane and the commitment proceedings are void, he will be released upon a habeas corpus proceeding, but should be delivered into the custody of the sheriff of the county from which he was sent to the hospital, and the proper authorities of that county, upon proper hearing, should determine whether or not he is sane or insane in accordance with the provisions otf the statutes for making such investigation and determination.

It is hard to see where a petitioner in a habeas corpus proceeding should be entitled, if his petition is sustained, to an unqualified discharge where, if the same questions were raised on appeal, the case would be remanded to the lower court for a new trial.

In Howington v. State, 30 Okla. Cr. 243, 235 P. 931, the defendant appealed to this court and raised the identical questions which are raised in this proceeding, to wit: That a conviction had been obtained without due process Of law. This court, after consideration of the facts therein, reversed and remanded the case with orders to- allow the defendant to- enter a plea of not guilty. The defendant had entered his plea of guilty to- the information, and had appealed to this court from a judgment and sentence imposing the death penalty.

Prom the foregoing, it is our opinion that the petitioner’s conviction was in violation of the rights guaranteed to him by the Bill of Bights of the Constitution, art. 2, and that the proceedings subsequent to the filing of the information against the petitioner in the district court of Comanche county are a nullity.

It is, therefore, ordered that the judgment and sentence pronounced against the defendant in cause No. 2218 in the district court of Comanche county and all other proceedings in said court in said cause subsequent to the filing of the information therein be and the same are hereby vacated and set aside.

It is further ordered that the writ of habeas corpus be issued, and the warden of the State Penitentiary at McAlester, Olda. be and is hereby commanded forthwith to deliver into1 the custody of the sheriff of Comanche county, Olda., the petitioner, Clyde Meadows.

It is further ordered that the sheriff of Comanche county, Olda., hold the said Clyde Meadows pending the disposition of the charge filed against him in cause No. 2218 in the district court of Comanche county or until he is otherwise discharged, as provided by law in such cases.

DOYLE, P. J., and BAREFOOT, J., concur.


text:
    EASTON JOHNSON v. STATE.
    No. A-9713.
    Oct. 2, 1940.
    (106 P. 2d 128.)

      Robt. H. Warren and A. A. McReynolds, both of Hugo, ¡for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Under an information filedi in the district court of Choctaw county April 24, 1937, charging defendant, Easton Johnson, with the crime of rape in the first degree, alleged to have been committed in said county on or about the-day of August, 1936, on one Margaret Willis, a female person of the age of 12 years, and not the wife of tbe said Easton Johnson, be was tried and convicted, and in accordance with tbe verdict of tbe jury was sentenced to serve a term of 25 years’ imprisonment in tbe State Penitentiary.

Tbe judgment was rendered and entered December 6, 1937. An appeal was attempted to be taken by filing in this court August 12, 1939, a petition in error with case-made.

Tbe Attorney General has filed a motion to dismiss tbe appeal on tbe ground that tbe petition in error with case-made was not filed within tbe time required by statute; that time to perfect same expired June 6, 1938; therefore this court is without jurisdiction to bear and determine tbe same.

Tbe record shows that defendant gave notice of bis intention to appeal and asked for time in which to- make and serve case-made, and was given 90 days to make and serve a case-made. Tbe amount of his supersedeas- bond was fixed at $10,000, which bond was given and approved December 15, 1937. On February 28th the defendant was granted a further extension of 60 days from March 5, 1938, to make and serve a case-made. On May 3, 1938, a further extension of 27 days from May 4th was granted.

It further appears that on June 11, 1938, after six months had expired from the date of the rendition off the judgment, counsel for defendant filed a motion for new trial on account of newly discovered evidence. On January 16, 1939, the court ordered execution to be issued. Defendant filed motion to set aside commitment order and hear his motion for new trial, on file when order was issued. On February 13, 1939, the defendant’s motion for new trial on account of newly discovered evidence came on for hearing, defendant, Easton Johnson, being present in person and represented by counsel. The prosecutrix was sworn as a witness and testified in bebalf of the defendant. On the same day, after hearing her testimony, the court overruled the motion for new trial. Defendant excepts and gave notice of his intention to appeal to the Criminal Court off Appeals from the order overruling the motion for new trial. Asked for and was given 90 days within which to make and serve a case-made, ten and five days to serve and settle the same. Supersedeas bond set in the sum of $5,000, ten days given within which to make the same. On May 12, 1939, defendant made application for and was given an. additional extension of 60 days from May 13, 1939, in which to make and serve a case-made. It further appears that on August 9, 1939, the trial court settled and signed the same as a true and correct case-made.

The Constitution of this state gives to every defendant in a criminal case the right of appeal. The statutes provide the manner and time of exercising this right.

The Code of Criminal Procedure provides:

“An appeal to the Criminal Court of Appeals may be taken by the defendant, as a matter pf right from any judgment against him; and upon the appeal, any decision of the court, or intermediate order made in the progress of the case may be reviewed.” (Section 3189, 22 Okla. St. Ann. § 1051.)

Section 3190, 22 Okla. St. Ann. § 1052, provides:

“An appeal from a judgment in a criminal action may be taken in the manner and in the cases prescribed in this article.”

Section 3192, 22 Okla. iSt. Ann. § 1054, in part provides :

“* * * In felony cases the appeal must be taken within six months after the judgment is rendered, and a transcript in both felony and misdemeanor cases must be filed as hereinafter directed.”

Section 3195, 22 Okla. St. Ann. § 1057, provides:

“If the crime of which the defendant is convicted be a bailable one, the court shall at the time of entering judgment notify the defendant of his right to appeal and fix the amount of his appeal bond and the time within which the bond shall be given in order to stay the execution of the judgment pending the filing of the appeal in the appellate court, and if the bond be given in the time fixed by the court, execution of the judgment shall be stayed during the time fixed for the settling of the case-made. If the case-made be settled in time and the appeal filed in the appellate court as required by law, then the bond shall stay execution of the sentence during the pendency of the appeal, subject to the power of the court to require a new or additional bond, Avhen the same is by the court deemed necessary.”

This court has had occasion many times to construe the foregoing statutory provisions. It has been uniformly held that in order to give this court jurisdiction the appeal as prescribed by section 3192, supra, must be filed with the Clerk of this court within the time which an appeal may be taken, and where an appeal is not perfected by filing in this court a petition in error with case-made attached, or a transcript of the record within the time prescribed by the statute, this court does not acquire jurisdiction of the appeal, and such appeal will be dismissed.

The power and authority of trial courts to allow bail and to fix the amount of the appeal bond pending appeal can only be exercised in the manner provided by the statute (sec. 3195, supra). Otherwise a defendant, when he has perfected his appeal, must apply bo this court for a supersedeas order fixing the amount of his appeal bond, and where the defendant fails to make and serve a case-made within the time allowed by statute, or within such extended time as may be allowed by the trial court or judge thereof, or where he fails to file a petition in error with case-made or transcript in the appellate court as required by law, he thereby waives his right to have the execution of the judgment stayed pending the perfection of his appeal, and any appeal bond given ceases to be eh fective as a supersedeas. Heath v. State, 22 Okla. Cr. 122, 210 P. 560.

To the same effect are the following cases: Dunn v. State, 18 Okla. Cr. 498, 196 P. 739; Criner v. State, 37 Okla. Cr. 313, 258 P. 359; Easterwood v. State, 38 Okla. Cr. 72, 259 P. 181. And see Ex parte Williams, 63 Okla. Cr. 395, 75 P. 2d 904.

In the case of Parker v. State, 10 Okla. Cr. 541, 139 P. 708, it is said:

“A supplemental motion for a new trial must he made not later than the term at which the case was tried, or at the next succeeding term, and the trial court is without power or jurisdiction to grant a new trial on the ground of newly discovered evidence in a criminal case after the next succeeding term at which the case was tried.”

In the case of Merrill v. State, 11 Okla. Cr. 278, 145 P. 1109, the court held:

“There is no statute authorizing an appeal from an order denying a motion for a new trial, except as instant to an appeal from a judgment of conviction, and no appeal lies from an order denying a motion for a new trial made after the time allowed by law for taking an appeal has expired.”

In Herman v. State, 23 Okla. Cr. 366, 214 P. 1084, the court held:

“Where defendant appeals from an order overruling his motion for a new trial, the appeal will be dismissed for want of jurisdiction.”

For the reasons stated in the cases cited, construing the foregoing statutory provisions, we are of the opinion that this court is without jurisdiction to entertain this appeal on its merits, and that the only jurisdiction possessed by this court upon the record before us is to dismiss the attempted appeal.

Unquestionably it is the duty of a court of last resort to see to it that a person convicted of crime was accorded a fair and impartial trial and the enjoyment of every legal right. However, to secure this determination by a court of last resort, an appeal must be taken in the manner prescribed by law. In the instant ease the evidence taken upon the trial is incorporated into the case-made, but it cannot be considered in support of the supplemental motion for a new trial, yet we are constrained to say that an examination of the record discloses that the defendant was not accorded a fair trial, and for this reason his first motion for new trial should have been sustained.

The prosecutrix at the outset testified repeatedly that defendant, her stepfather, did not have sexual intercourse with her and stated that Charley, defendant’s brother, was the man. She then stated that both Charley and this defendant had something to do with her. On cross-examination she admitted that at the preliminary examination she first testified that it was Charley that had something to do with her, and not her stepfather. On the hearing on the second motion for new trial, she said that her stepfather never at any time had sexual intercourse with her.

Dr. A. E. Johnson testified that he examined the prosecutrix last spring and said somebody had sexual intercourse with her.

The only other witness, Mrs. G. B. Anderson, over the objections of the defendant, testified that the prose-cutrix told her that both her stepfather and Charley, his brother, had bothered her.

Upon the record in this case this court is powerless to remand the case for any further proceeding other than to enforce its judgment.

The power to grant reprieves, commutations, paroles and pardons is vested in the Governor of the State (Const. Okla. St. Ann. art 6, sec. 10), and this is the source from which relief may be obtained in cases like this. What has been said is a matter that may be urged in an application ¡for executive clemency.

For the reasons hereinbefore stated, the motion of the Attorney General to dismiss the appeal must be sustained. The purported appeal is hereby dismissed, and case remanded to the district court of Choctaw county, with direction to cause the judgment to be carried into execution.

BAEEFOOT and JONES, JJ., concur.