text:
    Ex parte GEORGE SESLER.
    No. A-10927.
    Oct. 8, 1947.
    (185 P. 2d 705.)

      Gilmer, Weaver & Kennon, of Tulsa, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   BRETT, J.

This is an original action instituted by George Sesler to secure his release by a writ of habeas corpus directed to Dick Strain, sheriff of Oklahoma county, Okla., in whose custody he is being held. The petitioner alleged in substance that as far as he is able to ascertain, the cause of his restraint is by virtue of a criminal complaint pending in Calhoun county, Ala., charging the petitioner with having violated the provisions of Title 14, § 363, Code of Alabama, 1940, which reads as follows to wit:

“Removing, selling, or buying property to which others have claim.— Any person who removes or sells any personal property for the purpose of hindering, delaying, or defrauding any person who has claim thereto, under any written instrument, lien created by law for rent or advances, or any other lawful or valid claim, verbal or written, with a knowledge of the existence thereof, or who, with like intent, buys, receives, or conceals any such property, with knowledge of the existence of any such claim, shall, on conviction, be punished as if he had stolen the same.”

More specifically, the petitioner alleged that the prosecution was not brought in good faith in that it was an attempt on the part of the prosecuting witness to collect money on an anticipatory cause of action in the nature of a civil suit against the petitioner for damages for breach of contract which had not yet accrued. Upon the petition, rule to show cause was issued and. the matter set for hear-in on August 15,1947.

To the petition, Dick Strain, sheriff of Oklahoma county, responded that he held the petitioner under and by virtue of a warrant on foreign requisition issued by Governor Roy J. Turner on August 14, 1947, directing the apprehension and arrest of said George Sesler and the delivery of him to J. A. Sorrell, the agent of the Governor of Alabama to be conveyed to Alabama for trial upon the aforesaid charge.

In the hearing on said petition, the evidence disclosed that the petitioner was arrested in Calhoun county, Ala., for unlawfully transporting intoxicating liquor into that county, which under the laws of Alabama was a dry county. Upon being arrested, the petitioner procured the prosecuting witness herein, Pat White, to go bail for him, with the understanding that the petitioner’s automobile would stand as security to the said Pat White therefor. When the case on the transportation charge was called for trial, petitioner George Sesler, the defendant therein, failed to appear and the bail was forfeited. He had already removed the said automobile from the State of Alabama into the State of Oklahoma. Thereafter, the charge of removing the said automobile, under the foregoing statute, was brought against the petitioner in Calhoun county, Ala.

We have examined the papers and especially the affidavit of complaint, and it appears that under the laws of Alabama the petitioner is substantially charged with a crime by a sworn complaint, duly certified to by the Governor of Alabama. As was said in Ex parte Cassel, 85 Okla. Cr. 4, 184 P. 2d 467, 468:

“Unless the affidavit upon which an extradition proceeding is predicated is clearly void, its validity will be left by this court to the courts of the demanding state.”

The petitioner does not attack the regularity or the sufficiency of the papers upon which the Governor of Oklahoma acted in the issuance of the warrant on foreign requisition. See Ex parte Ryan, 75 Okla. Cr. 144, 129 P. 2d 204, 206, wherein this court said:

“The proceedings being regular in form, it is incumbent upon the petitioner for habeas corpus, seeking to defeat extradition to establish that he is not a fugitive from justice.”

The petitioner does not deny that he was in the State of Alabama at the time the crime charged in the complaint is alleged to have been committed in the State of Alabama. These facts not being denied by the petitioner, it appears that the petitioner is a fugitive from justice. Ex parte George, 63 Okla. Cr. 115, 73 P. 2d 471, 474, wherein this court said:

“To be a ‘fugitive from justice’ within the meaning of the federal law it is sufficient that such person legally charged in the demanding state with the commission of a crime within said state, when sought to be subjected to its criminal process for said offense, has left its jurisdiction and is found within the jurisdiction of another state upon whose executive requisition is made. When it is shown that a person is in due and legal form charged with a crime in one state, and that he was corporeally present in that state at the time of the commission of the crime charged, it is then conclusively established that such person is a fugitive from justice within the meaning of the Constitution. In re Gundy, 30 Okla. Cr. 390, 236 P. 440; Ex parte Baker, 33 Okla. Cr. 413, 244 P. 459; Ex parte Rabinwitz, 61 Okla. Cr. 83, 65 P. 2d 1236.”

This brings ns to the sole and only contention of the petitioner that the prosecution was not brought in good faith. In Ex parte Cassel, supra, quoting from Ex parte Welborn, 69 Okla. Cr. 282, 102 P. 2d 624, this court said:

“The presumption is that the prosecution is in good faith; and in order to overcome this presumption, * * * the petitioner must introduce facts which are clear, convincing, and without doubt that the prosecution in the demanding state is in bad faith.”

See, also, Ex parte Bishop, 85 Okla. Cr. 46, 184 P. 2d 805. Moreover, in Ex parte Powell, 41 Okla. Cr. 433, 273 P. 1029, 1030, this court, in determining good faith of the prosecution on the allegation that the petitioner did not commit any crime, said:

“In an extradition proceeding, the guilt or innocence of the defendant of the offense charged in the demanding state is not a question that can be raised by habeas corpus, as is here sought to be done. Ex parte La Vere, 39 Nev. 214, 156 P. 446; Williams et al. v. Robinson, 72 Colo. 484, 212 P. 485; Pierce v. Creecy, etc., 210 U. S. 387, 28 S. Ct. 714, 52 L. Ed. 1113.”

Upon a careful review of the complaint and the evidence herein, we conclude that the petitioner’s contention that the prosecution is not brought in good faith is without merit. Moreover, this court said in the Cassel case, supra, that:

“ ‘The action of the governor in issuing his warrant [on extradition] should not be nullified by the courts, unless it conclusively appears that the accused is not a fugitive from justice and that the issuance of the warrant was in plain contravention of law.’ Ex parte Foster, 60 Okla. Cr. 50, 61 P. 2d 37. Also see, Appleyard v. State of Massachusetts, 203 U. S. 222, 27 S. Ct. 122, 51 L. Ed. 161, 7 Ann. Cas. 1073; Compton v. State of Alabama, 214 U. S. 1, 29 S. Ct. 605, 53 L. Ed. 885, 16 Ann. Cas. 1098; Commonwealth v. Superintendent of Philadelphia County Prison, 220 Pa. 421, 69 A. 916, 21 L. R. A., N. S., 939.”

The writ of habeas corpus is accordingly denied and the respondent, Dick Strain, sheriff of Oklahoma county, Oklahoma, is directed to surrender the petitioner, George Sesler, unto the custody of the agent of the State of Alabama in execution of the Governor’s warrant on foreign requisition.

BAEEFOOT, P. J., and JONES, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte ROY WALKER.
    No. A-10912.
    Oct. 8, 1947.
    (185 P. 2d 704.)
    H. M. Shirley, of Coalgate, for petitioner.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Lavern Pishel, County Atty., Coal County, of Coalgate, for respondent.
   PER CURIAM.

Roy Walker filed in this court a petition for writ of habeas corpus, alleging that he was unlawfully imprisoned and restrained of his liberty in the county jail of Coal county by Thea Bonner, sheriff of said county.

He alleges that he had been arrested by the sheriff of Coal county and that on February 8, 1947, the Hon. W. B. Thornsbrough, county judge of said county, sitting as an examining magistrate, and after a preliminary examination, held said petitioner to answer to the district court of said county, without bail, upon a charge of rape in the first degree.

It was further alleged that petitioner had not been given a speedy trial as required by the Constitution and statutes of this state (Qkla. Const. art. II, § 20; Tit. 22 O. S. 1941 § 812). This part of the petition was withdrawn at the hearing on the order to show cause; and on July 23, 1947, after a hearing, this court entered an order directing that petitioner be granted bail, pending his trial in the district court of Coal county. His bail was set at $1,500, said bond to be approved by the court clerk of Coal county, and when so approved, petitioner was to be released.

It is so ordered.


author: JONES, J.

text:
    ROBERT LOWELL ROGERS v. STATE.
    No. A-10779.
    Oct. 15, 1947.
    (185 P. 2d 927.)

      James P. Devine and Alfred B. Knight, both of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Robert Lowell Rogers, was charged by information filed in the district court of Tulsa county with the crime of burglary in the second degree, it being charged that on August 19, 1945, he did break and enter the Seidenbach’s retail department store in Tulsa and steal therefrom $4,443.30 in money, $2,995.13 in checks and $11,643.07 in jewelry. The trial before a jury resulted in a verdict of guilty and judgment was pronounced pursuant to the verdict of the jury sentencing 'the defendant to serve the maximum term of seven years in the State Penitentiary.

The chief contention presented by the defendant on appeal is that the evidence of the state being wholly circumstantial is not sufficient to sustain the verdict of guilty.

The proof of the state showed that on Saturday night, August 18, 1945, Seidenbach’s retail department store was entered through a window located near a fire escape. Two of three safes in the cashier’s office were opened and the currency and checks which had accumulated from the Saturday’s business were taken. The proof showed that the greatest portion of the currency that was taken was in five, ten and twenty dollar bills, but there were more one dollar bills than any other. Also taken during the burglary was $11,643.07 worth of jewelry.

Mrs. H. L. Ziegler testified that she was the manager of the El Patio Hotel in Tulsa. That on Sunday morning, August 19, 1945, while she was at her hotel looking out of the window, she saw a greenish blue taxicab drive up in the alley behind her hotel and directly in front of her. That there was a sign on the car “Yellow Taxi Cab.” That she saw a man who was driving the cab get out of the car, put on some gloves, remove a card board container with some more card board in it from the taxicab, crush the card board in his hands and walk over to a trash can directly under the window where she was standing and place the card board boxes in the trash qan. She positively identified the defendant as being the person who performed this act. Her curiosity was aroused when he put on gloves before removing the boxes, and after he had left, she went out to the trash container to see what he had placed therein, and found two card board shoe boxes. That about the middle of the morning she notified the police about the occurrence and turned the card board boxes over to them. She then identified state’s exhibit number one as being the card board container with some more card board in it that the defendant had placed in the trash can on that morning.

The taxi inspector for the city of Tulsa testified that on August 19, 1945, the defendant owned and operated a Yellow Cab taxi. That the car was a “Plymouth car, kind of a bluish green; that it had a sign on it, ‘Yellow Cab Company.’ ”

Certain officers testified that a few days after the burglary, acting on a tip they had received, they went to the law offices of L. A. Justus in Tulsa. That when they entered the law office the defendant Sogers and the attorney were in the private office of Justus together, and that $1,200 in bills were lying on top of the desk. That some of the officers remained at the law office while others went back for a search warrant. That after the officers returned with the search warrant, a further search of the law office was made and $2,200 additional were found in the desk drawer of Mr. Justus. The money which was found included 52 twenty dollar bills, 95 ten dollar bills, 178 five dollar bills, 456 one dollar bills, and one one hundred dollar bill.

E. E. Benson, county investigator, testified that he heard the defendant say that he had brought the money to the law office of Mr. Justus.

W. P. Anderson testified that he was the manager of the shoe department of Seidenbach’s store. That his shoe department handled Andrew Gellers shoes and that no one else in the city of Tulsa sold these shoes. The witness identified the card board boxes, “State’s Exhibit number one,” as having been taken from Seidenbach’s store the night of the burglary. This witness testified that it was a common practice at the close of business each day to check the shoe boxes and the stock numbers against the sales tickets and that all shoes are boxed before the employees leave. That the shoe department is located directly behind the jewelry department. That on the morning after the burglary he found two pairs of unboxed shoes and that the two boxes which were found (State’s Exhibit number one) corresponded with the two pair of un-' boxed shoes which were found in his department on August 19, 1945.

No evidence was offered on behalf of the accused. In Hart v. State, 57 Okla. Cr. 372, 48 P. 2d 337, 338, this court stated:

“Where the charge is burglary, if property taken from the owner is soon thereafter found in possession of the person charged with the burglarious entry, proof of this fact, together with circumstances showing guilty conduct, is presumptive evidence, not only of the larceny, but also that he made use of the means by which the property was taken from the owner.
“Burglary is one degree removed from larceny; but when the facts in evidence warrant the finding of the larceny, and the surrounding circumstances are such as to show that the larceny could not have been committed without the burglarious entry, the evidence is sufficient to warrant the finding of the burglary also.
“In order to establish defendant’s guilt, it was not necessary that any of the witnesses should have seen him or his codefendants in the vicinity of the warehouse about the time the burglary was committed. It rarely happens that perpetrators of an offense, committed in the manner here proven, can be shown by witnesses who saw and recognized the defendants in the act, and resort must therefore ordinarily be had to circumstantial evidence.”

In the case of Hopper v. State, 81 Okla. Cr. 158, 160 P. 2d 942, the following rules of law were laid down by this court:

“Before physical object allegedly taken in commission of burglary is admitted in evidence, it must be sufficiently connected with the crime itself by proper identification. However, it is not necessary that such identification should positively and indisputably describe such article. If it is sufficiently described to justify its admission in evidence, the lack of positive' identification goes to the weight of such evidence rather than to its admissibility.
“Beer cases in possession of accused the day following burglary were sufficiently identified to justify the admission of such cases in evidence for the determination by the jury as to whether they were the cases which were taken in burglary.
“Where a conviction rests upon circumstantial evidence and circumstances are proved from which a reasonable and logical inference of guilt clearly arises and which exclude any reasonable hypothesis except the guilt of the'accused, although the evidence is conflicting, Criminal Court of Appeals will not disturb the verdict for insufficiency of the evidence.'
“The presumption arising from the possession of recently stolen property is one of fact, and not of law. Such presumption is merely an evidential fact tending to establish guilt which should be submitted to the jury to be considered in connection with all the other facts and circumstances disclosed by the evidence.”

The empty shoe boxes taken from the department store at the time of the burglary were evidently used to transport the currency and jewelry which were stolen. The defendant’s possession of these articles taken in the burglary the following morning after the burglary is shown. Although the money found in the office of the attorney had no marks upon it by which it could be identified by any of the employees of Seidenbach’s, there was a similarity in the amount and the denominations of the bills which were found in the office with the currency which was taken in the burglary. The circumstantial evidence is strong that this money was a part of the loot taken from the store. There was no denial by the defendant of the statement attributed to him that he had taken this money to the law office.

It was stated in Robinson v. State, 67 Okla. Cr. 8, 92 P. 2d 1082:

“Where an accused person is found in possession of property taken from a place recently burglarized, that fact may be considered by the jury along with all the other circumstances tending to show that the one in possession committed the burglary.”

We have closely examined the record and have found no errors of sufficient importance to justify a reversal of the judgment of conviction.

The judgment and sentence of the district court of Tulsa county is accordingly. affirmed.

BAREFOOT, P. J., and BRETT, J., concur.


text:
    ROBERT LOWELL ROGERS v. STATE.
    No. A-10862.
    Oct. 15, 1947.
    (185 P. 2d 930.)

      Alfred B. Knight, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Elmer W. Adams, Co. Atty., of Tulsa, for defendant in error.
   JONES, J.

The defendant, Robert Lowell Rogers, was charged in the district court of Tulsa county with the crime of burglary in the second degree, was tried, convicted, and sentenced to serve six years in the State Penitentiary.

An appeal from this judgment was filed on April 3, 1947. On May 9, 1947, the Attorney General filed a motion in this court to dismiss the appeal in which he alleged that the defendant after judgment and sentence was pronounced against him in the trial court was enlarged on bail pending his appeal. That subsequent to the filing of the appeal in this court, the defendant committed the crime of burglary at Princeton, 111., and was then incarcerated in the jail at Princeton, 111.

Subsequently an amended motion to dismiss the appeal was filed in which it was alleged that on June 10, 1947, the defendant, Robert Lowell Rogers, entered his plea of guilty to an indictment charging him with the crime of burglary in the Circuit Court of Bureau county, Illinois, and was sentenced to serve a minimum period of five years or a maximum period of ten years imprisonment in the State Penitentiary and was thereafter transported to and is now incarcerated in the State Penitentiary in Illinois. Attached to and made a part of the motion to dismiss is a certified copy of all the proceedings against the defendant in the Circuit Court of Bureau county, Illinois, which shows the plea of guilty and sentence as alleged by counsel for the state.

After the motion to dismiss the appeal was filed and copy served on counsel for the defendant, said case was set for hearing on September 17, 1947. No response to said motion has been filed on behalf of defendant and no appearance in his behalf was made at the time the motion to dismiss came on for hearing.

The proof of the state offered at the hearing on the motion to dismiss substantiated the allegations of their motion to dismiss the appeal.

In Evinger v. State, 35 Okla. Cr. 12, 247 P. 416, it is stated:

“Where a convicted defendant appeals and gives bond to stay the execution of the sentence during the pendency of the appeal, and violates the conditions of: his bond by leaving the state without leave of court, it is within the discretion of the court, whether it will proceed to a decision of the cause or dismiss the appeal.
“Where a defendant has been convicted and sentenced and perfects an appeal, this court' will not consider his appeal, unless defendant is where he can be made to respond to any judgment or order which may be rendered or entered in the case.”

In Bryce v. State, 14 Okla. Cr. 456, 172 P. 976, 977, Judge Matson, speaking for the court, says:

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

See, also, Mann v. State, 73 Okla. Cr. 245, 119 P. 2d 878; Herring v. State, 71 Okla. Cr. 69, 108 P. 2d 193; Kilpatrick v. State, 71 Okla. Cr. 125, 109 P. 2d 514; Payne v. State, 78 Okla. Cr. 396, 149 P. 2d 272.

Upon consideration of this matter, we are of the opintion that the defendant, by his conduct, has waived his right to have his appeal in this case considered and determined.

The appeal is therefore dismissed.

BAREFOOT, P. J., and BRETT, J., concur.


author: BAREFOOT, P. J.

text:
    MARTIN EDWARDS v. STATE.
    No. A-10760.
    Oct. 22, 1947.
    (186 P. 2d 333.)

      John L. Ward, Jr., and Elmore A. Page, both of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Haskell A. Holloman, Asst. Atty. Gen., and Elmer W. Adams, City Pros., of Tulsa, for defendant in error.
   BAREFOOT, P. J.

Defendant, Martin Edwards, was charged in the municipal criminal court of the city of Tulsa with the violation of the prohibition laws of the state by soliciting the sale of intoxicating liquor; was tried, convicted and sentenced to pay a fine of $250, and to serve a term of 90 days in the county jail of Tulsa county, and bas appealed.

A. motion to dismiss tlie appeal has been filed in this case by the Attorney General, in which one of the questions raised is that the transcript does not show a judgment and sentence. The defendant filed a response to this motion, in which he states that no formal judgment was ever rendered or entered in the' case; that the time of passing judgment and sentence on the verdict returned has expired, and raises the question that no formal judgment having been entered, this court is without jurisdiction to hear this appeal.

This proposition was evidently not thought of by counsel for defendant until he read the motion to dismiss the appeal filed in this case by the Attorney General. No reference to this question is made in the motion for new trial, or in the petition in error. Defendant there refers to the “judgment and sentence” rendered against the defendant, and appeals therefrom. This contention of defendant is just as technical as the contention of the state in its motion to dismiss the appeal. From the statements of counsel and the record in this case, it is evident that the records of the municipal criminal court of the city of Tulsa are not kept with the accuracy that should prevail in courts of record.

We are of the opinion that this case should not be decided on the technicalities presented either by the state or the defendant, but upon the merits of the case. A brief has been filed on the merits by the defendant, but the state has announced that it does not desire to file a brief.

The defendant was charged in the municipal criminal court of the city of Tulsa with the offense of adwertising or soliciting the sale of intoxicating liquor. A demurrer was filed to the information on the ground that the same was too indefinite and uncertain to permit defendant to properly plead to the same, and that more than one offense was charged in the same count. An examination of the information reveals that the information is probably subject to this contention. But, as stated above, we think it is proper to consider this case on its merits.

The basis for the charge was a printed card, which was introduced in evidence, and is as follows:

“Call
The Original
Eddie
When you’re ready
From 9 A.M. to 12 P.M.
7916 7060”

A captain in the vice department of the Tulsa police testified for the state. Pie was permitted to testify that he had known the defendant “Martin Edwards” for four years. That he knew his occupation and business, and that “He is in the liquor business.” This evidence was permitted to go to the jury over the objection and exception of the defendant. It is a fundamental principle of criminal law that the character of the defendant cannot be impeached or attacked by the state unless he puts his character in issue by introducing evidence of good character. Under this rule, this evidence was clearly error, as has often been held by this court. Wilkerson v. State, 9 Okla. Cr. 662, 132 P. 1120; Buckley v. State, 69 Okla. Cr. 285, 102 P. 2d 619; Pressley v. State, 71 Okla. Cr. 436, 112 P. 2d 809. See, also, United States v. O’Connell, D. C. 43 F. 2d 1005.

The captain then identified the card above copied, and when asked what it was, said: “A. That is a card advertising the sale of whisky.” The defendant excepted to this statement. The witness testified that the chief of police had received the card through .the mail from some anonymous person whom he did not know. He immediately called over the telephone one of the numbers on the card, and the defendant answered the call, and: “I told him I was filing a charge against him and asked him to come to headquarters, and he came down.” Defendant made bond and was released.

The state also offered as a witness a member of the raiding squad of the Tulsa police, and he testified that he called one of the numbers on the above card, and that someone answered. He testified, in part:

“Q. Did you know who it was that you talked to? A. I do not.”

He stated that he odered two pints of whisky, and the same was delivered to him by:

“Some boy by the name of Bobby, I do not remember his name. Q. Do you know where Bobby is now? A. No, sir. Q. Have you tried to locate him? A. No.”

This witness was then permitted, over the objection of defendant, to testify to a conversation between the witness and “Bobby,” not in the presence of the defendant, in which certain statements were made by “Bobby” involving the defendant as being the owner of the whisky, and certain cards. Defendant objected to the introduction of this evidence as being hearsay. It is unnecessary to state that it was rank hearsay, and was inadmissible as held by many decisions of this court. McRae v. State, 8 Okla. Cr. 483, 129 P. 71; McKinney v. State, 19 Okla. Cr. 94, 198 P. 108; Cumpton v. City of Muskogee, 23 Okla. Cr. 412, 413, 225 P. 562; Bohannan v. State, 24 Okla. Cr. 103, 215 P. 1078; Re v. State, 56 Okla. Cr. 121, 34 P. 2d 1084; Mendenhall v. State, 82 Okla. Cr. 220, 168 P. 2d 138; Fenimore v. State, 82 Okla. Cr. 288, 169 P. 2d 214.

Bill Dickson testified for the state. He was the owner of the Bank Note Printing Company. He had been acquainted with defendant for three years when he worked for the Hurry-up Messenger. He had at some prior time printed cards for Eddie. He had consulted the county attorney of Tulsa county before printing them, and the county attorney had told him it would be all right. He was presented with the card offered in evidence and testified that it had been printed at his shop. He testified:

“A. I did not know when I printed the cards it would be Martin Edwards. * * * Q. Well, do you know, who did you print them for? A. It was called for by a lady, she called up. Q. Who was the lady? A. I never knew her and do not know her now. * * * Q. Who took the order for these cards? (Objection made, overruled and exception allowed.) A. I don’t know. My son was the outside man and my wife were in there. * * * Q. Did you ever discuss with him this card, this card here? A. No, sir. Q. Do you remember ever seeing this card in there? A. Never did.”

With this testimony the state rested, and a demurrer to the evidence was offered and overruled, and exception saved. This evidence was insufficient to connect the defendant with the commission of any crime, if committed. We are of the opinion that the demurrer to the evidence should have been sustained.

There is one more error presented which deserves attention. The record reveals that the city attorney, in his argument to the jury, stated: “Now I want to state this, that this defendant has elected not to get on the stand.”

Counsel for defendant objected to this statement and demanded a mistrial by reason thereof. The court said:

“Gentlemen of the jury, yon are to pay no attention to any remarks that have been made relative to the defendant’s failure to take the witness stand. I am not going to declare a mistrial.” The court, in justification of this ruling, stated: “I am not going to declare a mistrial for the reason I think we have an exceptional jury here, and that the jury will not be swayed or pay any attention to the remarks, and I will ask that you gentlemen adhere to the evidence, and Mr. Marks, I will ask that you do not refer to that matter further.”

Tit. 22 O. S. 1941 § 701 provides:

“In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of a crime, offense of misdemeanor before any court or committing magistrate in this State, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel it shall be ground for a new trial.”

This statute has been construed by the Criminal Court of Appeals many times. We have consistently held that where the attorney for the state directly refers to the fact that a defendant has failed to take the witness stand, such reference constitutes reversible error. There was a direct reference to this fact in the instant case. In the early case of Nowlin v. State, 7 Okla. Cr. 27, 115 P. 625, 121 P. 791, 792, this court said:

“It matters not what we may think of the policy of this statute. It is mandatory, and therefore we have no discretion in the matter, but it is our plain duty to enforce it. It must not be violated, directly or indirectly, either in its letter or spirit.”

And in the late case of Bock v. State, 80 Okla. Cr. 28, 156 P. 2d 381:

“Where accused elected not to testify and county attorney in closing argument commented on such failure to testifiy, it was the mandatory duty of trial court, when matter was properly called to its attention, to declare a mistrial and refusal to do so was reversible error.”

See, also, Brown v. State, 3 Okla. Cr. 442, 106 P. 808; Holmes v. State, 13 Okla. Cr. 113, 162 P. 446; Schrader v. State, 40 Okla. Cr. 261, 268 P. 325; Shelton v. State, 49 Okla. Cr. 430, 295 P. 240; Rice v. State, 66 Okla. Cr. 434, 92 P. 2d 857; Thoreson v. State, 69 Okla. Cr. 128, 100 P. 2d 896; Shepherd v. State, 77 Okla. Cr. 131, 139 P. 2d 605.

For the reasons above stated, the judgment of the municipal criminal court of the city of Tulsa is reversed, and the case remanded.

JONES and BRETT, JJ., concur.


text:
    LESTER WHEATON v. STATE.
    No. A-10757.
    Oct. 22, 1947.
    (185 P. 2d 931.)

      Springer & Springer, of Stillwater, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Lester Wheaton, was charged by information filed in the district court of Payne county, with grand larceny by committing the theft of $2,100 from one Bernice Intes, on or about December 14, 1944. Upon a trial to a district court jury, the defendant was found guilty with the punishment left to the court. After motion for new trial was overruled, the trial judge sentenced the defendant to serve a term of two years imprisonment in the State Penitentiary, and he has appealed.

It is contended that the prosecuting witness was an incompetent witness for the reason that the proof showed that she was the common law wife of the defendant, and that, therefore, the court erred in overruling the objection interposed to the competency of the witness to testify. Secondly, it is contended that the district court of Payne county had no jurisdiction of the offense for the reason-that the proof showed that the offense, if any, was committed in Tulsa county. Thirdly, it is contended that the evidence is wholly insufficient to sustain the conviction. As all of these questions are dependent upon the proof that was established at the trial, a summary of the evidence will be given.

The defendant during the time involved in this controversy was a resident of Glencoe, a small town in Payne county. Bernice Intes came to this country from Lithuania when she was about ten years of age and had lived most of her life in Chicago. She was 49 years of age at the time of the trial. Bernice and the defendant had both subscribed to a magazine published under the name of the Correspondence Club, but it is genereally referred to in the evidence as a matrimonial agency.

The prosecuting witness testified that she and the defendant started corresponding about eight months before they met. In this correspondence, she advised the defendant that she had saved up quite a large amount of money and that she was interested in matrimony. The defendant came to Chicago about November 25, 1944, and stayed there about three days. They agreed to get married, but defendant insisted they go to Kansas City where he had left some trucks in which he had brought some cattle to the market. The parties went to Kansas City and defendant left the prosecutrix for a short time, presumably to call about his trucks. When he returned he said that the trucks had gone. The defendant said that he had lost his money and then suggested they go to defendant’s mother’s home at Glencoe. There the marriage was again postponed when defendant told her that he was waiting for a check for the cattle he had sold in Kansas City. The defendant then suggested to the prosecutrix that she transfer her money from Chicago and invest it in stock in the Federal Home Loan Bank.

The proof showed that the prosecutrix had been working for several years. By attending night school she had received a high school diploma. During the war she had worked in a defense plant and had saved $2,108.89 which was on deposit in a Chicago bank. In addition, she had several hundred dollars worth of government bonds which had been purchased for her by her employer making regular deductions from her weekly pay check.

The money which she had on deposit in Chicago was transferred to the Glencoe bank and arrived there on December 14, 1944. The defendant then suggested that she immediately withdraw her money from the Glencoe bank and invest it. Accordingly, on December 14th, the prosecutrix withdrew her money from the Glencoe bank with the understanding that she and defendant were to take the money to Tulsa, get married and invest the money in a Federal Home Loan institution of which the defendant had spoken to her. The money that was withdrawn from the Glencoe bank Avas given to the prosecutrix in $20 bills. After the withdrawal of the money from the Glencoe bank, defendant and Bernice returned to the home of defendant’s mother. While defendant and Bernice were upstairs a short while before departing for Tulsa, the defendant gave Bernice some envelopes and suggested that she put the money in the envelopes and place them in her pocketbook for her protection. The prosecutrix testified that she put the money in four or five envelopes, placed them in her pocketbook, put the pocketbook in her trunk, locked it, and placed the key in her coat pocket which was hanging on a clothes hanger in the upstairs room. The prosecutrix then went downstairs to the room she had been occupying to prepare for the trip to Tulsa, leaving the defendant upstairs in the room with the money. Prosecutrix testified that about 30 minutes later after she had finished dressing she went back upstairs, unlocked the trunk, took her pocketbook, went downstairs with the defendant, and they went to Tulsa. That she had the pocketbook in her possession all the remainder of that day. That she and defendant occupied the same bed that night, but that when she retired she placed the pocketbook under the mattress between the mattress and the springs and that when she awakened the next morning the pocketbook was in the same position it had been placed when she went to bed. The next morning the parties went shopping; the defendant bought her a dress, a ring, and some other articles. The prosecutrix then went to a beauty shop for a beauty treatment and while she was sitting in the shop she opened her pocketbook and decided to open one of the envelopes. When she did she found the envelopes were each filled with newspaper clippings and the money had been taken. She then ran out of the beauty shop without receiving her beauty treatment to look for the defendant. She was unable to find him at that time so she placed a long distance telephone call to defendant’s mother to advise her what had occurred. A short time later she saw the defendant walking down the street with another man, so she ran up and grabbed him by the arm. That she told the defendant what had happened and defendant said, “I played a joke on yon, I took yonr money to protect yon from getting in trouble and I baye invested it in a Federal Home Loan.” That defendant laughed and quieted her down and said, “I have to protect yon.” That she asked the defendant then when they would get married and defendant said that he had to go to Cleveland, Oklahoma, and see about a barbershop and from there they would go to Kansas City and get married.

That she later, after their return to Glencoe, saw a letter from a woman written to defendant in which was a statement by the woman that she still loved the defendant and would come back to him if he would go to work and live at Shawnee instead of Stillwater. That the defendant then told her that he had been married, but that he had been divorced from the woman on November 14-, 1944, and that under the law in Oklahoma he had to wait 90 days before he could remarry.

That the defendant kept complaining to her about being short of money and asked her to cash her war bonds. That she asked the defendant about the $2,100 which he had taken and defendant said, “it is all invested, and after the war we will buy our own home, our own farm.” That they rented a farm close to Stillwater and Lester paid $150 advance rent for a year and they moved a little furniture out to the farm. That Lester wanted an automobile, so they went to Cushing and bought a second hand Chevrolet sedan for $485. That the defendant paid for it. That the defendant did not work any at all after she met him, but he told her that he had lost two fingers while working for the Santa Fe Railway and was drawing a pension for that disability. That she and the defendant were living together on the farm as man and wife. That she kept insisting to defendant that he get.a job. That finally one day the defendant told her he was through with her and left. That he did not ever give her back any of her money and they never did get married. That she went to the sheriff’s office and made complaint against the defendant and related to the sheriff and county attorney what had occurred. On cross-examination the prosecutrix testified that she had been married but had obtained a divorce in 1925. She further testified that she and defendant lived together at the farm sleeping in the same bed and that defendant introduced her to different people as his wife.

Jim Robb testified that he was in the automobile business in Cushing in Payne county. That on January 3, 1945, he sold a 1936 Chevrolet sedan to the defendant for |485 and that defendant paid him in twenty dollar bills, except one five dollar bill.

Clarence McGinty testified that he was cashier of the bank at Glencoe. He testified that he arranged for the transfer of money in the sum on $2,108.29, for Bernice Intes from a Chicago bank to his bank and that the money was withdrawn from his bank on December 14, 1944.

C. 0. Shingleton testified that he rented a ten-acre tract to the defendant, Lester Wheaton, which was located northeast of Stillwater, in January, 1945, for $150 cash, which was to pay for a year’s rent. That the defendant paid him in $20 bills.

J. R. Bradley, under sheriff, testified that he made the arrest of the defendant; that he asked the defendant whether he was married to the prosecutrix and defendant said he was not, but that he Avas paying her $30 a month to keep house for him.

The defendant testified in his own behalf that he had been convicted on four felony charges. One conviction was in the federal court for transporting a stolen car across the state line, once for forgery, one conviction in Texas for swindling, and one five year sentence in Tulsa county for obtaining property under false pretenses.

He further testified that the prosecutrix wrote him the first letter along about April, 1944, and that on July 1, 1944, he went to Chicago and visited with her. That the prosecutrix came to Oklahoma to see him on September 10th, and stayed just one day and returned to Chicago. That he had been married but was divorced by his former wife in Alabama on November 14, 1944. That we went to Chicago in the latter part of November, 1944, to see the prosecutrix. That they discussed about getting married and he told her he would have to wait six months. That they then agreed to wait until the 15th day of May, but she was to come on to Oklahoma and stay until the six months period elapsed and then they would get married. He admitted knowing that the prosecutrix withdrew f2,100 from the Glencoe bank and stated that they went to Tulsa thereafter for the purpose of buying an automobile. Defendant specifically denied that the prosecutrix mentioned to him while they were in Tulsa about having lost any money and specifically denied that he had told her he had taken her money and invested it for her. Defendant stated that he had about $512 when the prosecutrix came to Oklahoma. That he spent his own money in buying the presents for the prosecutrix in Tulsa. That the prosecutrix gave him the money to pay for the automobile which was purchased in' Cushing, and also she gave him the money to pay for the furniture which was placed in the house at the farm which they leased. The defendant further testified:

“Q. Did you ever, at any time at all, ever have any other intentions, except in good faith to get married to her when the six months period was up from the 14th day of November, 1944? A. I did not. I will marry her now, if you will bring her up here.”

On cross-examination defendant stated that he did not carry a bank account but was carrying the $500 which belonged to him in his billfold. He was asked if he had not told the county attorney at the time of his arrest that the prosecutrix could not have $2,100, as she had never had more than a $10 bill in her possession and defendant denied making this statement. He denied telling the prosecutrix that he had a pension from the Santa Fe Railway and testified that he lost his finger and thumb while working as a trusty in the penitentiary at West Virginia. He denied purchasing a barbershop at Pawnee in the name of his brother and denied having any interest in the barbershop which the proof showed was purchased about December 15 or 16, 1944.

The mother of defendant testified in his behalf. That she tried to talk to the prosecutrix about Lester Wheaton, but that prosecutrix said, “I have known him 18 years, we used to work in the barbershop together in Chicago for nine months.” She swore that Lester started to go to Kansas to work and she heard the prosecutrix say she had rather spend another thousand than let him go. She said that she saAV the prosecutrix carrying the defendant’s billfold and one day when the defendant wanted some money she took his billfold out of her purse and gave him a $20 bill out of the billfold. She admitted that on the occasion of the trip to Tulsa by defendant and prosecutrix that she received a message from the prosecutrix at Tulsa by phone, but upon objection being interposed by counsel for defendant, she was not allowed to relate what was contained in the message.

Bert Wheaton, brother of defendant, testified that he was in the barbershop business and was running a barbershop in Cleveland, Ohla., on December 15th, when the defendant and prosecutrix came by his shop. That he purchased a barbershop from a Mr. Fletcher at Pawnee on the 17 or 18 of December, 1944, but that the defendant did not furnish the money for the purchase of the shop. That the defendant and his wife came by his place on the day they had bought some furniture in Pawnee and had lunch with him. That he saw the prosecutrix give defendant five |20 bills to pay for the furniture. On cross-examination the witness denied having made the statement to the officers at the time of arrest of defendant that he did not know the woman had any money but if she did have and Lester took it she should have it back. He further stated that at the time the defendant and prosecutrix were on their way to Tulsa that defendant stopped in the barbershop and told him that Mr. Fletcher at Pawnee wanted to see him about selling the barbershop.

Wilma Jane Shipley testified that the defendant had performed work for her in 1942, and that she had found him trustworthy.

On rebuttal the state offered a transcript of the papers filed before the justice of the peace at the preliminary hearing and it was admitted over the objection of defendant. Bernice lutes was also recalled and introduced in evidence a statement of employee earnings and payroll deductions from Bheem Manufacturing Company, Chicago, Illinois, which showed her working each week during the month of September, 1944. This evidence was introduced for the alleged purpose of refuting the evideuce of defendant that prosecutrix bad gone to Oklahoma in September, 1944, before he had made a trip to Chicago in November, 1944.

The county attorney testified that in a conversation with defendant at the time of his arrest, defendant asked him with what he was being charged and upon being told he stated that he did not know she had any money at all. He further swore that in conversation with the brother of defendant at about the same time the brother stated, “I don’t think she had any money. I don’t think he could have stolen that much because I don’t think she had any money.”

The record will not sustain the contention of defendant that the prosecutrix was not a competent witness for the reason that she was his common law wife, for the reason that the testimony of both the prosecutrix and defendant was that they intended to marry in the future, although each of them testified that they were living together as pretended husband and wife. The prosecutrix specifically denied that she was ever married to defendant and defendant was just as emphatic that he was never married to the prosecutrix. Their relationship was meretricious.

In the case of Nichols v. State, 50 Okla. Cr. 409, 298 P. 886, it is held:

“A common-law marriage may exist in this state, and, when parties capable of entering into the marital relation agree to and become husband and wife, and in pursuance of this agreement enter into and thereafter maintain the marriage relation, the common-law marriage exists. * * *
“The burden of proof of incompetency of a witness rests upon the one who raises such question.”

In the body of tlxe opinion it is stated:

“In re Love’s Estate, 42 Okla. 478, 142 P. 305, L. R. A. 1915E, 109, that court said:
“ ‘A common-law' marriage exists where competent parties agree to be and become immediately man and wife and pursuant thereto enter into and maintain thereafter the marriage relation.’
“In the case of Hughes v. Kano, 68 Okla. 203, 173 P. 447, 448, that court defines common law as:
‘A common-law marriage may exist in this state, and when parties capable of entering into the marital relation agree to be and become husband and wife, and in pursuance of such agreement enter into and thereafter maintain marriage relation, a common-law marriage exists.
“To the same effect is the case of Baker v. Jack, 112 Okla. 142, 241 P. 478.
“In re Wells’ Estate, 123 App. Div. 79, 108 N. Y. S. 164, 166, that court said :
“ ‘A common-law marriage is defined as any mutual agreement between the parties to be husband and wife in praesenti, especially where it is followed by cohabitation, if there is no legal disability on the part of either to contract matrimony.’
“In re Callery’s Estate, 226 Pa. 469, 75 A. 672, that court said:
“ 'A common-law marriage is not affected by occasional cohabitation after an express promise to have a marriage ceremony performed, which is not fulfilled. Cohabitation and reputation conjoined are the essential facts from Avhich a presumption of common-law marriage arises.’ * * *
“It clearly appears from the evidence that there was no mutual agreement in praesenti between these parties to be husband and wife before they began to cohabit with each other. Theirs was simply a state of fornication and not of marriage. It takes more than this to create the relation of common-law marriage in the state of Oklahoma.”

In Cavanaugh v. Cavanaugh, 135 Okla. 204, 275 P. 315, in the first paragraph of the syllabus, it was held:

“To constitute a valid ‘commondaw marriage,’ it is necessary that there should he an actual and mutual agreement to enter into a matrimonial relation, permanent and exclusive of all others, between parties capable in law of making such contract, consummated by their co-. habitation as man and wife, or their mutual assumption openly of marital duties and obligations. A mere promise of future marriage, followed by illicit relations, is not, in itself, sufficient to constitute such marriage.”

35 Am. Jur. 209 § 41, reads as follows:

“An agreement to cohabit for the present and to marry later is not a marriage although there is cohabitation. There can be no contract per verba de praesenti where the marital status is to become fixed in the future. This rule applies where a future marriage cannot be had until a future convenient time, as when an existing spouse dies or a ceremony can be performed. It has been held that no marriage is shown by a man’s acknowledgment of a woman as his wife in the presence of others and by their living together as man and wife for one week prior to his death, where their intention was to have a marriage ceremony performed the next week, which ceremony was prevented by his death.”

It is established law that venue of an offense must be proved as alleged in the information. However, it does not have to be proved beyond a reasonable doubt and may be proved by circumstantial evidence. Ward v. State, 13 Okla. Cr. 81, 162 P. 232; Steele v. State, 28 Okla. Cr. 335, 230 P. 760; Nix v. State, 20 Okla. Cr. 373, 202 P. 1042, 26 A. L. R. 1053; Everidge v. State, 50 Okla. Cr. 144, 3 P. 2d 750.

Although there is no direct evidence that the money was stolen from the prosecutrix in Payne county, the circumstances strongly point to that conclusion. The money was placed in envelopes at the suggestion of defendant, the envelopes were placed in her purse and the purse in turn was locked in a trunk. The key was left in a coat hanging by the trunk. The defendant was left alone in the room where the trunk was located for 30 minutes or more. This was the only time after the money was placed in the envelopes that the purse was out of the immediate presence of the prosecutrix until she discovered the loss the next morning. She carried it with her all of the remainder of the day and placed it under the mattress that night. It is almost inconceivable that the defendant could have removed the purse from under the mattress where the prosecutrix was lying, remove the money, substituted envelopes stuffed with newspaper clippings and then placed the purse back under the mattress without arousing the prosecutrix. The circumstances strongly point to a taking in Payne county.

In addition to that it is provided by statute:

“When property taken in one county, by burglary, robbery, larceny, or embezzlement, has been brought into another, the jurisdiction of the offense is in either county. * * *” 22 O. S. 1941 § 128.

The circumstances are strong that the defendant had possession of some of the stolen money in Payne county after the trip to Tulsa. It was there he paid for the automobile and the rent on the farm, and he had the money which he carried to Pawnee to make the payment for the furniture.

This case in its final analysis involves questions of fact for the determination of the jury. If they believed the testimony of the prosecuting witness, they probably also concluded that the money used by the defendant in making these purchases was a part of the money taken from the prosecutrix. This court has long adhered to the ruling that it will not disturb the finding of the jury on a disputed question of fact where there is any competent evidence in the record to sustain their finding. The evidence here was sufficient if it be credited by the jury to sustained the verdict of guilty.

There is one other proposition presented by counsel for defendant. In rebuttal the county attorney introduced the transcript certified by the justice of peace to the distinct court after the preliminary examination of the defendant. This transcript included all of the papers filed before the justice of the peace, but did not include a transcript of the evidence taken at the preliminary hearing. The defendant had testified that when he was placed in jail he was denied bond by justice of peace and never had a bond fixed for him until some months later when he was arraigned in the district court after the information had been filed against him in that court. The justice of the peace who held the preliminary hearing was called as a rebuttal witness and he testified that he fixed the defendant’s bond at $2,500 at the time he was brought before him for arraignment, and that after he made an order binding the defendant over to district court he made a further order fixing bail' for defendant in the sum of $2,500. The transcript of the record of the preliminary examination was admitted in evidence purportedly to support the statement of the justice of peace.

We agree with the contention of the counsel for defendant that this transcript was immaterial, contained many hearsay statements and should not have been admitted as evidence. However, we fail to see where the defendant was prejudiced in any way by the admission of this evidence. There is no statement in the transcript which could have possibly had any bearing on the outcome of the case. For that reason we hold that its admission as evidence was harmless error.

The judgment is affirmed.

BAREFOOT, P. J., and BRETT, J., concur.


author: BRETT, J.

text:
    Ex parte CARL CHANCE.
    No. A-10952.
    Oct. 22, 1947.
    (185 P. 2d 938.)
    Earl E. James, of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   BRETT, J.

This petition for habeas corpus is filed by Carl Chance and in substance alleges that he is unlawfully being restrained of his liberty in the county jail of Oklahoma county, Olda., under a warrant of arrest for extradition issued by the Governor of Oklahoma upon the requisition of the Governor of the State of Georgia for his return to that state.

The petitioner alleges, in his verified petition, that the Avarrant issued by the Governor of Oklahoma, for extradition upon requisition by the Governor of the State of Georgia, has not been issued and served according to law. Furthermore, that the prosecution is brought to collect a disputed debt in the sum of $224.80; that the complaining witness has approached him with the view of settling the obligation; that no attempt has been made to arrest him for more than tAvo years though he resided in Georgia in the vicinity Avhere the charges were filed and during said time he has had several conferences with said complaining witness.

Upon said petition, rule to show cause Avas issued and hearing had thereon October 13, 1947.

The Governor’s warrant for arrest and all the papers thereunto attached appear to be regular in every particular and no showing of any irregularity therein or in connection with the service thereof being made, we conclude that the petitioner’s contention that the Governor’s warrant of arrest for extradition was not issued and served as provided by law, is without merit.

Attached to the warrant of the Governor of Oklahoma, for arrest, is the indictment returned by the grand jury in Montgomery, Ala., in which the petitioner is charged Avith having committed the crime of burglary of a storehouse of one G. C. Rowland, of which numerous articles of merchandise were stolen. This indictment is positive in its allegations and alleges the commission of the crime of burglary.

On a hearing in open court the defendant admitted being in the State of Georgia at the time the alleged crime was committed, but denied that he participated in the crime as alleged in the indictment. Moreover, in his petition he contends that he approached the complainant about the case when he heard from community gossip that he might be involved in the charge of burglarizing the complainant’s storehouse, and that the complainant stated he did not want to prosecute anyone, that all he wanted was his money. The petitioner contends that he stated to Rowland he did not participate in the burglary and for that reason he did not think he owed him anything. Further than this, there was nothing to support the petitioner’s contention that the prosecution was not in good faith and was for the purpose of collecting a debt. This is entirely inadequate upon which to predicate the granting of a writ of habeas corpus based upon the allegations in the petitioner’s petition that the prosecution is not in good faith and is for the purpose of collecting a debt.

This court has repeatedly held that the question of good faith of the prosecution is always open to inquiry on habeas corpus. Ex parte Welborn, 69 Okla. Cr. 282, 102 P. 2d 624; Ex parte Owens, 34 Okla. Cr. 128, 245 P. 68; Ex parte Maddox, 55 Okla. Cr. 114, 25 P. 2d 1111; Ex parte Johnson, 29 Okla. Cr. 41, 232 P. 452. In Ex parte Welborn, supra, cited with approval in Ex parte Sesler, 85 Okla. Cr. 110, 185 P. 2d 705, this court said:

“The presumption is that the prosecution is in good faith; and in order to overcome this presumption, the proof on behalf of the petitioner must be clear and convincing,” that the prosecution in the demanding state is brought in bad faith. In this instance, the petitioner has wholly failed to sustain this burden.

The writ of habeas corpus is, therefore, denied and the petitioner is remanded to the custody of Herman McRae, agent of the Governor of the State of Georgia, for transportation to the State of Georgia in pursuance to the warrant heretofore issued.

BAREFOOT, P. J., and, JONES, J., concur.


text:
    MONA BELL v. STATE.
    No. A-10758.
    Oct. 29, 1947.
    (186 P. 2d 344.)
    Mac Q. Williamson, Atty. Gen., for the State.
   BAREFOOT, P. J.

Defendant, Mona Bell, was charged in the district court of Bryan county with the crime of robbery with firearms; was tried, convicted and sentenced to serve a term of twelve years in the State Penitentiary, and has appealed.

The petition in error with case-made attached was filed on May 24, 1946. Defendant had 60 days in which to file a brief. Extensions of time of 30 days each were granted defendant on July 30, 1946, August 14, 1946, and October 3, 1946. The case was set for oral argument on March 5, 1947. No one appeared for the defendant, and the case was submitted on the record on that date and an order entered giving defendant 20 days additional time to file brief. No brief has been filed, and we presume defendant failed to make proper arrangements with his attorney. The attorney who filed the petition in error is not the same one who represented defendant in the trial court.

Under Buie 9 of this court, it is provided:

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

We have carefully examined the record in this case, and do not find any error which would in any way prejudice the rights of the defendant. He was charged with the crime of robbery with firearms. He was charged jointly with four other parties with the robbery of the First State Bank of Bokchito, Bryan county, Okla., on January 14, 1935. The information was filed on September 21, 1945, more than ten years after the commission of the offense. Defendant was not apprehended until shortly before that time. He was positively identified by a large number of witnesses, who saw him at the time the Bank was robbed, and the sum of |526 taken therefrom. Three of the party, including the defendant, entered the bank and actively committed the robbery, and two of the party remained in the automobile, and all escaped together. Besides the positive identification of defendant, other circumstances were proven which justified the conviction of defendant by the jury.

The defendant’s defense was that of an alibi. He claimed that he was at Alba, Tex., on January 14, 1935, and the day prior thereto. He presented a number of witnesses who testified to this fact. The court properly presented an instruction to the jury covering this defense. Under the law, this was all for the consideration of the jury, and their verdict will not be set aside where the evidence is sufficient to sustain the same.

Defendant, after judgment and sentence, filed and presented a supplemental motion for a new trial on the grounds of newly discovered evidence. This motion had reference to evidence of other witnesses who would corroborate the testimony of the witnesses presented at the trial as to the presence of defendant in Alba, Tex., on January 13, and 14, 1935. The trial court in its discretion overruled this supplemental motion for a new trial, and we do not find there Avas prejudicial error in this action. The evidence could only have been cumulative, and due diligence was not shown to obtain the same. No affidavit of the witnesses was attached to the supplemental motion. The court was evidently of the opinion that this evidence would not result in a different Amrdict from that returned. •

Finding no prejudicial error in the record, the judgment of the district court of Bryan county is affirmed.

JONES and BRETT, JJ., concur.


text:
    STATE v. EPHIE HUMPHREY.
    No. A-10773.
    Nov. 5, 1947.
    (186 P. 2d 664.)

      Fred E. LaRue, County Atty., Custer County, of Clinton, for plaintiff in error.
    Meacham, Meacham, Meacham & Meacham, of Clinton, for defendant in error.
   JONES, J.

This is a purported appeal by the State of Oklahoma from an order of the district court of Custer county refusing to set aside the suspended sentence granted to the defendant, Ephie Humphrey.

The defendant, Ephie Humphrey, was charged jointly with Raymond Schoolcraft and Eddie Duggins with directing a riot. Duggins v. State, 82 Okla. Cr. 357, 170 P. 2d 266; Schoolcraft v. State, 84 Okla. Cr. 20, 178 P. 2d 641.

On February 9, 1945, the defendant, Humphrey, entered his plea of guilty and was sentenced to serve 20 years imprisonment in the State Penitentiary. At the time judgment was pronounced, it was further ordered by the court that the sentence be suspended pursuant to the terms and conditions imposed by the statute. Thereafter, on March 6, 1946, the county attorney of Custer county filed a motion to revoke the suspended sentence theretofore given to the defendant, Humphrey, for the reason that on several occasions after sentence ivas pronounced against the defendant, he had engaged in numerous fights and had been intoxicated and was keeping company with another man’s wife, all of which constituted violations of the conditions of the suspended sentence.

A hearing was had on the state’s motion to set aside the suspended sentence and evidence was introduced on behalf of the state and defendant. At the conclusion of the hearing, the trial court stated that he was convinced that the defendant had not strictly lived up to the conditions of the suspended sentence, hut that he was going to give him one more chance and accordingly he refused to set aside the suspended sentence.

This appeal has been taken from such action of the trial court in refusing to vacate the suspended sentence aforesaid. The appeal was filed herein on July 9, 1946. There has been no brief filed on behalf of the state and no appearance was made on behalf of the state at the time the case was assigned for oral argument.

On April 21, 1947, the defendant filed a motion to dismiss the appeal because of the failure of the state to file a brief and for the further reason that there was no authority for the State of Oklahoma to appeal from an order denying the motion to vacate a suspended sentence. No response was filed to this motion.

This court has held that where the state appeals on a reserved question of law and no brief is filed and no appearance made when the case is called for submission, the judgment will be affirmed. State v. Sisler et al., 71 Okla. Cr. 211, 110 P. 2d 321.

In Barefield v. State, 26 Okla. Cr. 274, 223 P. 408, this court held that where the time for filing a brief supporting the appeal has passed and no brief having been filed, it may be assumed that the appeal has been abandoned.

The right of the state to take an appeal is governed by statute and it has been held that the statutory authority cannot be enlarged by construction. State v. Gray, 71 Okla. Cr. 309, 111 P. 2d 514.

By statute it is provided :

“Appeals to the Criminal Court of Appeals may be taken by the State in the following cases and no other:
“1. Upon judgment for the defendant on quashing or setting aside an indictment or information.
“2. Upon an order of the court arresting the judgment.
“3. Upon a question reserved by the State.” 22 O. S.1941 § 1053.

This is not an attempted appeal under either the first or second provisions of the statute, but if the appeal may be sustained it is because it is brought under the third subdivision of the statute “upon a question reserved by the State”. The state did not contend in their petition in error that they were appealing on a reserved question of law. The purported appeal is based upon the alleged error of the court in not setting aside the suspended sentence and committing the said defendant to the penitentiary. In the petition in error it is prayed “that a judgment be rendered setting aside the suspended sentence of the said defendant in error, Ephie Humphrey.”

In State v. Waldrep, 80 Okla. Cr. 230, 158 P. 2d 368, 369, it is held:

“In a criminal case the state may appeal to this court: First, from a judgment setting aside an indictment or information; second, upon an order of court arresting judgment; and, third, upon a question reserved by the state. An appeal upon a question reserved by the state does not bring up any part of the trial or proceedings of the case, except the question reserved and the judgment of acquittal, and if such question reserved is decided in favor of the State, it simply settles that question of law and does not affect the verdict of acquittal.”

In State v. Frisbee, 8 Okla. Cr. 406, 127 P. 1091, it is stated:

“The state has the right to prosecute an appeal to this court upon any question of law reserved by the state during the trial of a criminal case. The fact that the defendant may have been acquitted and could not again be tried for the same offense will not in any way interfere with the right of the state to appeal and have the question so reserved settled.”

In the case of Ex parte Boyd, 73 Okla. Cr. 441, 122 P. 2d 162, 163, this court discussed at length the statute conferring the right on the trial court to suspend the sentence of a convicted person upon the conditions named in the statute. 22 O. S. 1941 §§ 991, 992. It was therein held:

“Suspension of sentence under said statute is not a parole nor pardon, but is an authorized mode of mild and ambulatory punishment, instituted by the Legislature for the purpose of giving persons who come within the operation of the statute an opportunity for reformation.”
“Only those persons coming within terms of statute are eligible for suspended sentence, but they have no right to demand the same; and it may not be granted to them except at the discretion of the court.”
“The revocation of a suspended sentence is a matter addressed to the sound judicial discretion of trial judge, and the hearing in connection therewith may be of a summary character.
“In habeas corpus proceeding by accused, alleging trial court revoked suspended sentence without due process of law, the question for determination is whether there has been an abuse of discretion by trial court, and is to be determined in accordance with familiar principles governing the exercise of judicial discretion. That exercise implies conscientious judgment, not arbitrary action.”

In the body of the opinion it is stated:

“We follow what we consider the better rule in the interpretation of our statute, that the suspension of the execution of the sentence is a matter of grace, expressly ordered by the Legislature, to be in the discretion of the trial judge, with the revocation of such suspension equally within his discretion, subject to the right of the accused to apply to this court for relief if it can be shown that the court’s action was arbitrary or governed solely by whim or caprice of the judge, without a legal foundation.
“Beneficent results could not be secured under our suspended sentence law if every accused was entitled to a trial to determine whether his suspended sentence should be revoked. Without doubt, a conscientious judge in many instances would be deterred in his desire to aid in the rehabilitation of a convicted person if we were to hinge the statute with technicalities and difficulties incident to a revocation. The Legislature has wisely charged the court with the duty of determining in the first instance whether a defendant shall be given a suspended sentence, and by the same statute it clearly vests in the court the power to determine in his own sound judicial discretion when such suspension of execution of sentence should be terminated. The vesting of such power in the court does not deprive the defendant of any of his constitutional rights. No convicted person has a constitutional right to produce proof to try out the issue of what his punishment shall be. That question must be determined by society, which in turn has vested that power in the courts.”

In the case of Ross v. State, 78 Okla. Cr. 293, 147 P. 2d 797, 798, this court held:

“The granting or refusal of a suspended sentence being discretionary with the trial court, this court will not interfere with the exercise of that discretion.”

For all of the above reasons, it appears that the motion to dismiss the appeal should be sustained. It is so ordered.

BAREFOOT, P. J., and BRETT, J., concur.


text:
    JACK W. COSBY v. STATE.
    No. A-10753.
    Nov. 12, 1947.
    (186 P. 2d 844.)

      Welch, Bounds & Kile, of Hugo, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., Victor C. Phillips, Co. Atty., of Durant, for defendant in error.
   BAREFOOT, P. J.

Defendant, Jack W. Cosby, was charged in the district court of Bryan county with the crime of wife and child abandonment; was tried, convicted and sentenced to serve a term of ten years in the State Penitentiary, and has appealed.

For a reversal of this case it is contended:

“(1) The information is duplicitous in that two separate offenses, i. e., (1) abandonment of wife, and (2) abandonment of child under the age of 3 years, are charged in the information.
“(2) Error of the court in refusing to submit the defendant’s requested instruction No. 2 relating to proof of paternity of minor child born out of wedlock, who is alleged to be the child of the defendant.
“(3) The error of the court in submitting instruction No. 4, relating to the bond and probationary provisions of the Penal Code whereby a person convicted on such a charge might completely escape imprisonment upon conviction.
“(4) Error of the trial court in refusing cross-examination of prosecuting witness as to her prosecution of . a bastardy proceeding against another man in the year 1929.
“(5) The evidence was insufficient to warrant a conviction of wife abandonment.”

Under the first proposition, it is contended that the information is duplicitous for the reason that it charges two separate offenses, (a) abandonment of wife; and (b) abandonment of child under the age of three years.

The statute under which the information was prepared is 21 O. S. 1941 § 853, which provides:

“Every person who shall without good cause abandon his wife in destitute or necessitous circumstances and neglect and refuse to maintain or provide for her, or who shall abandon his or her minor child or children under the age of fifteen years and wilfully neglect or refuse to maintain or provide for such child or children, shall be deemed guilty of a felony and upon conviction thereof, shall be punished by imprisonment in the State Penitentiary for any period of time not less than one year or more than ten years.” ,

The charging part of the information is as follows:

“That is to say, the defendant did in said county and state, at the date above named, unlawfully, wrongfully, knowingly, wilfully and feloniously desert and abandon his wife and minor child while they were in necessitous and destitute circumstances, said minor child, to-wit Linda Lou Cosby, being under the age of three years, and the said Jack W. Cosby has wholly failed and refused, and still fails and refuses to provide for and maintain said wife and minor child; contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Oklahoma.”

This court has decided the question here raised adversely to defendant’s contention in the case of Brown v. State, 33 Okla. Cr. 217, 242 P. 1065, 1067. While in that case no demurrer to the information was filed, as in the instant case, the court said:

“The second assignment is that the court erred in overruling the objection of the defendant to the introduction of testimony on the part of the state, for the reason that the information, is duplicitous, in that it attempts to charge more than one offense. It is urged that the statute creates the crime of wife abandonment, also creates the crime of child abandonment, and that the abandonment, of either would be a separate and distinct crime under the state; that, if the information here charges a crime at all, it charges two.
“The function of a demurrer which was not resorted to by the defendant is to defeat the information without a trial, Avhenever it appears upon the face thereof that it is subject to one or more of the five .objections named in the statute. Code of Crim. Proc. section 2608, C. S. 1921 (Tit. 22 O. S. 1941 § 504). These objections can be taken only by demurrer, except:
“ ‘That the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.’ Id. § 2616. (Tit. 22, O. S. 1941 § 512.)
“It follows that the question is not presented by the record. However we are of the opinion that there is no merit in this contention. The rule is well settled that, when a statute makes it an offense to do some one or another act, naming them disjunctively, either of which would constitute one and the same offense, and amenable to the same punishment, all the acts may be charged conjunctively in the one count as constituting a single offense.”

See, also, Goodart v. State, 65 Okla. Cr. 472, 88 P. 2d 911, Davis v. State, 40 Okla. Cr. 231, 267 P. 674; Sherman v. State, 19 Okla. Cr. 269, 200 P. 262.

It is next contended that the court erred in refusing to give defendant’s requested instruction No. 2, which was as follows:

“Gentlemen of the jury, you are instructed that under the evidence in this case the child, Linda Lou Cosby, was born out of wedlock and there is no presumption that the «defendant is the father of the said child, and in this connection you are instructed that in order to convict the defendant of abandoning said child, and for failure and refusal to support her, you must find from the evidence beyond a reasonable doubt that the defendant is the lather of said child.”

The court in lieu thereof gave the following instruction :

“7. Gentlemen of the jury, you are instructed that in order to convict the defendant for abandonment of the child you must find and believe from the evidence beyond a reasonable doubt that the defendant is the father of said child.”

An examination of the record discloses that the child in question was born in a hospital at Richmond, California, on July 19. 1943, and that the mother of the child and defendant were married at McAlester, Oklahoma, on December 20, 1944. The evidence amply sustains the finding that the defendant was the father of the child, Linda Lou Cosby.

It is provided by 10 O. S. 1941 § 2:

“* * * A child born before wedlock becomes legitimate by the subsequent marriage of its parents.”

Letters introduced in evidence written by defendant to the prosecuting witness while she was in California, and the testimony, clearly justified the jury in reaching the conclusion that the defendant was the father of Linda Lou Cosby. He admitted on cross-examination that he lived with the prosecuting witness and for a period of ten or twelve years prior to sending her to California had had intercourse with her, and that she went under his name.

In the case of Brooks v. State, 59 Okla. Cr. 421, 60 P. 2d 805, 806, it is said, in the first paragraph of the syllabus :

“Where the court in its general instructions correctly advised the jury as to the law applicable to the facts in the case, it is not error for the court to refuse to give special instructions requested by the defendant covered by the court’s instructions.”

It is next contended that the court erred in giving instruction No. 4. This is the most serious proposition presented. The instruction is too long to copy in this opinion. It may be stated that it is based upon 21 O. S. 1941 §' 855, which follows section 853 quoted above, and provides-that upon conviction of one for wife and child abandonment a parole may be given by tbe Governor under certain . conditions, upon recommendation of tbe judge trying tbe case. After giving this procedure, the court, in tbe concluding part of tbe instruction, states:

“In this connection you are instructed that in your verdict you shall only determine tbe guilt or tbe innocence of tbe defendant, and tbe period of time be shall serve as a penalty; and tbe question of tbe giving of bond for tbe payment of money to tbe said minor child and bis parole by the Governor are questions of procedure that are not submitted to you herein. Notwithstanding this provision of tbe law, the defendant should not be convicted here unless tbe jury are satisfied, by competent evidence beyond a reasonable doubt," that he is guilty in manner and form as charged in tbe information.”

An instruction in almost identical words in a child abandonment case was before this court in the case of Cowley v. State, 65 Okla. Cr. 479, 88 P. 2d 914, 918; and see also Goodart v. State, supra. In tbe Cowley case, tbe instruction is quoted in tbe opinion. Tbe court, in an opinion by Presiding Judge Doyle, came to tbe conclusion that it was not tbe proper practice for the court to submit to the jury an instruction such as was given in this case. However, tbe court, after considering such instruction, said:

“Tbe court is firmly committed to tbe rule that an instruction improper and erroneous will not be held reversible error where it is manifest, on consideration of all the instructions given, tbe testimony in tbe case, and tbe verdict of tbe jury, that such an instruction did not work to tbe prejudice of the defendant, or deprive him of any substantial right.
“Upon tbe record before us we are of the opinion that tbe giving of said instruction did not constitute prejudicial error.”

The court in the Cowley case considered and reviewed the case of Bean v. State, 58 Okla. Cr. 432, 54 P. 2d 675, 677, which is cited and relied upon by defendant in the instant case. In that case, the defendant was charged with the crime of murder, and was convicted of manslaughter in the first degree, and given a sentence of 15 years in the penitentiary. In that case, the court instructed the jury that if the defendant was convicted of a felony and received a prison sentence, he would not necessarily have to serve the imprisonment imposed for the reason that the laws of this state make provision for commutation of time for good behavior. The court then gave to the jury a table showing the time given convicts for good behavior after their incarceration in the penitentiary. This instruction was predicated upon sec. 5341, O. S. 1931, Tit. 57 O. S. 1941 § 138.

The court, in the body of the opinion in the Bean case, said:

“The instruction complained of is a section of our statute found under the title of ‘Instructions’ governing our penitentiary and reformatory. Under the provisions of the section herein quoted, it is clearly shown that it provides for a condition subsequent to the conviction and sentence and is not germane to the question involved in the trial of the defendant as to the guilt or innocence, but provides for conditions subsequent to conviction and after the party has been incarcerated in our penitentiary or reformatory. It is offered as a reward for good behavior of the convict.
“We have searched in vain to find where any court in the trial of a defendant has instructed the jury that when a defendant is convicted of a felony and received a prison sentence as a punishment therefor he does not necessarily serve the entire term of punishment imposed, for the reason that the law makes a provision of commutation of time for good behavior.
“Under the statutes of Oklahoma when the court has instructed the jury as to the law as applied to the evidence in the case, it has discharged its full duty under its oath and the law; and when that duty has been fully discharged, the court goes outside of the facts in this case and gives the instruction herein complained of, it committed an error prejudicial to the rights of the defendant. However, it will be seen in this case that the evidence clearly shows that no one had an opportunity to strike the fatal blow that took the life of the deceased but this defendant, and the evidence is amply sufficient to convict the defendant of manslaughter in the first degree. The evil growing out of the instruction complained of can readily be seen for the reason that no provision is made for any one in authority other than a ministerial officer of the state penitentiary or reformatory to say whether or not the prisoner had a good record. Should the prisoner for any reason commit a slight infraction of the rules of the prison or incur the enmity of the warden or any one having supervision over him, a report could be made reporting that the prisoner had broken the rules and regulations and was not entitled to good time, and the prisoner would be compelled to serve out his entire term for which the court and the jury convicted him.
“It is clear the enacting of the statute for commutation for good behavior was never intended by the Legislature to be considered by the jury in the trial of the defendant, on the question of his guilt or innocence, or the punishment imposed by the jury. The instruction complained of as error only goes to the question of the commutation of the defendant after he has been convicted and incarcerated.
“This court has many times held that it is not every erroneous instruction that entitles a defendant to reversal, and especially so as in this case, where the testimony clearly shows the defendant guilty of manslaughter in the first degree, the instruction opened the way for the jury, and perhaps did cause it to impose a greater sentence on the prisoner than it would have imposed had the instruction not been given.
“Considering all the facts and circumstances in the case, and the fact of the testimony showing the guilt of the defendant of manslaughter in the first degree, we do not think that the erroneous instruction given entitles the defendant to have his case reversed. However, we believe the giving of the instruction caused the jury to impose a greater punishment on the defendant than it would otherwise have given, and that the judgment of fifteen years should be modified to seven years.”

In the Cowley case, supra, following the case of Bean v. State, supra, the judgment was modified, by reason of the error above mentioned, from a term of ten years to a term of seven years.

Following the decisions in the above cases, and adopting the reasons therein stated, we are of the opinion that it was error to give instruction No. 9, in the instant case, but that the error only caused an increased punishment to be assessed against the defendant. We are also of the opinion that the punishment of the defendant in this case should be modified from a term of ten years in the penitentiary, to a term of five years therein.

The fourth assignment of error has reference to sustaining an objection to a question propounded to the prosecuting witness on cross-examination. We have carefully examined the record with reference to this matter, and are of the opinion that the objection to the question should not have been sustained. However, the question went to the credibility of the witness. There was other evidence before the jury, which the jury could have considered in weighing the credibility of the prosecuting witness. This evidence was of the same nature and substance as that rejected. In view of the fact that the judgment and sentence in this case is to be modified, we do not consider this error was prejudicial to the defendant to the extent of justifying a reversal of this case. Keltner v. State, 52 Okla. Cr. 150, 3 P. 2d 451.

The fifth assignment of error challenges the sufficiency of the evidence to show a willful and felonious abandonment of the wife of defendant. This necessitates a short review of the evidence.

Defendant and the prosecuting witness commenced going together in 1930 or 1931. This continued for a period of nearly 15 years. During that time the prosecuting witness lived in southeastern Oklahoma, and defendant worked for different railroads, but they were often together, and she went with him to different places. Just prior to the birth of the child, Linda Lou, defendant sent the prosecuting witness to California, purchasing a ticket for her transportation. She had a brother in that state, and one in Oklahoma. There was quite a bit of correspondence between the defendant and the prosecuting witness, but it is unnecessary to unduly lengthen this opinion by quoting therefrom. The prosecuting witness was taken to the hospital in California, and a baby girl was born by a caesarean operation on July 19, 1943. Defendant was notified both before and after this occurrence. His letters to the prosecuting witness are in endearing terms, and contained promises to come to California at an early date and fully recognized that he was the father of the child, and expressed his desire to see it, etc. He signed and gave his written consent to the operation. But the evidence revealed that he did not go to California as promised, and that he did not pay for the operation or the doctors’ bills, and that her brother who lived in California had to advance her money to return to Oklahoma. Upon her return to Oklahoma, defendant refused to take care of her and her baby, although he was working for the railroad and owned property. In desperation she filed bastardy charges against the defendant, in Bryan county, in March, 1944. While these charges were pending, defendant was making effort to have them dropped. During this time a conversation was had between defendant and the prosecuting witness, and it was agreed that they would meet in McAlester, in Pittsburg county, on December 20, 1944. On that date they were legally married, and spent one night together in the Aldridge Hotel. As a result of this marriage, the bastardy proceedings in Bryan county were dismissed.

After the marriage at McAlester, defendant sent the prosecuting witness to Durant, giving her $10 at that time. She has lived there since, and defendant has never contributed anything to her support and maintenance, or to that of the child. By reason of the operation, she has been unable to work, and her brother, who was in the service during World War II, and a prisoner in Germany, has contributed about $50 per month out of his salary and bonds from the Government to support and maintain them.

In February, 1944, defendant filed a suit for divorce at Ada in the district court of Pontotoc county. The prosecuting witness employed counsel to defend this suit. At the hearing, the district judge ordered the defendant to pay $75 per month, $125 suit money, and $100 temporary attorney’s fees. When this order was made, the case was dropped and no further order was made therein. At no time has defendant ever in any way complied with the order of the court, and has paid none of the money as ordered. When asked on cross-examination in the trial of this case why he had not paid, his answer was that he heard the court say: “Until the further order of the court,” and that he thought the court meant that the judge would order him to pay in the future, and he had never done so. He at no time consulted his lawyer to find out his duty with reference to the order.

The present case was commenced in the district court of Bryan county on October 2, 1945; the charging part of the information and statute under which the charge was brought are set forth herein.

The statute here involved was enacted in this state (and similar ones have been enacted in many states of the Union), for the purpose of punishing a father who fails to support his child or a husband who fails to support his wife. Some courts in construing statutes of like character have expressed the thought that they were enacted for the purpose of redressing a public grievance, and thus relieve the public from the burden of caring for a helpless child, or an indigent wife. Other courts have held that these statutes are really designed for the benefit of the wife and child in addition to the remedies offered by civil proceedings.

In the case of State v. Gillmore, 88 Kan. 835, 129 P. 1123, 1126, 47 L. R. A., N. S., 217, it is said:

“The object of the statute was to compel the husband, if he were able to do so, to support his wife and children.”

We are in accord with this statement. The evidence in this case shows a wanton disregard on the part of this defendant to support and maintain his wife and minor child, although abundantly able to do so. His mistreatment of her for a period of ten or twelve years and from the time she was a young girl 17 years of age, his sending her away to the State of California just prior to the birth of their child, his refusal to pay the expenses during the time of the birth of the child, and her expenses to return to the State of Oklahoma, are a shame and a disgrace, and when you add to this defendant’s refusal to live with her, and provide a home for her and their child, after their return, and his failure to give one cent for their support and maintenance, you have seen broken every obligation of the law of both God and man. It is indeed a lame excuse for one to say, under these circumstances, that “she promised to immediately divorce me if I would marry her and give her little girl a name.” One cannot believe that anyone could so far forget his obligation to support his offspring. The child, helpless in its infancy, “and required in the early years of its minority to obey the reciprocal duty of serving its parents,” should not be deprived of its natural and legal right of protection and support by its father. This is certainly true, notwithstanding any family quarrel or any agreement between husband and wife. It has no say in any divorce proceedings, and is not barked of any right by any decree entered therein.

In the body of the opinion in the Gillmore case, supra, the court quotes from the case of Spencer v. State, 132 Wis. 509, 112 N. W. 462, 122 Am. St. Rep. 989, 13 Ann. Cas. 969, and says:

“ ‘We are of opinion, however, that the cláuse in question may well be justified as providing an appropriate punishment for an aggravated case of abandonment or failure to support.’ The penalty is severe; but evidently the Legislature believed that this very feature would act as a deterrent to faithless husbands and pitiless fathers, who might be tempted to leave wife and child without support or care. Its severity need trouble no one who possesses sufficient manhood and decency to entitle him to remain outside prison walls.”

In connection with this case, we call attention to 21 O. S. 1941 § 855, supra, which provides for a parole by the Governor of one convicted by reason of a violation of such section, as was this defendant, by the payment of certain monthly payments as provided therein for the support and maintenance of his wife and child, such payments to be secured by the giving of good and sufficient bond as provided by the terms of said section.

It will thus be noted that this defendant carries the keys for his release from the sentence imposed in this case. The statute under which defendant was convicted is a wholesome one for the enforcement of a deserved right. We have often insisted upon prosecution for other offenses, and have too often forgotten that the abandonment and failure to support one’s own offspring is a crime not only against society, but an irreparable injury to the children of this state.

The judgment of the district court of Bryan county is affirmed, as modified, from a term of ten years to a term of five years in the State Penitentiary.

JONES and BRETT, JJ., concur.