text:
    C. L. HILL v. STATE.
    No. A-3510.
    Oinion Filed April 30, 1921.
    Rehearing Denied Sept. 12, 1921.
    (200 Pac. 253.)
    (Syllabus.)
    1. Indictment and Information — Essentials of Offense — Sufficiency of Information — Robbery. To constitute robbery the taking must be either directly from the person or immediate presence and against the will of the party robbed, and must be by force or a previous putting in fear. It is the previous violence or intimidation that distinguishes robbery from larceny. The information in this case charged the taking •of money from the person of another by means of force and fear, brought about by pointing a revolver and threatening to shoot if resisted, followed by the allegation, “Said defendants did then and there wrongfully, willfully, unlawfully, forcibly, violently, and feloniously take, steal, and carry away.” Held to sufficiently charge the crime of robbery, and the words “steal and carry away” being more surplusage, the information was not bad for duplicity.
    2. Appeal and Error — Continuance—Discretion of Trial Court. The granting or refusal of a continuance is in the discretion of the trial court, and its decision will not be disturbed on appeal, unless it appears there has been an abuse of such discretion.
    3. Continuance — Refusal for Absence of Witness Where Appearance Unlikely. There is no abuse of discretion in overruling an application for a continuance on the ground of the absence of a material witness, where the affidavit presented in support of the application does not show any probability of securing the attendance of said witness at any future time to which the case might be continued.
    4. Appeal and Error — Discretion of Trial Court — Granting New Trial for Newly Discovered Evidence, The granting of a new trial on the ground of newly discovered evidence is largely discretionary with the trial court and the excercise of this discretion will not be disturbed on appeal, unless it appears that there has been an abuse of such discretion.

      Appeal from District Court, Payne County; John P. Hiok-am, Jii8ge.
    C. L. Hill was convicted of robbery, and he appeals.
    Affirmed.
    Pruiett, Sniggs, Patterson & Morris, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State. 1
   DOYLE, P. J.

The plaintiff in error and one Joe Hart-ley were jointly informed against for the crime of robbery. The information in substance charges that, in the county of Payne, state of Oklahoma, on the 29th day of November, 1918, one C. L. Hill and Joe Hartley did then and there willfully, unlawfully, wrongfully and feloniously make an assault upon the person of one Jeff Long, and against the will and without the consent, and by means of force and fear of immediate and unlawful injury to the person of the said Jeff Long, said fear being brought about by said defendants then and there pointing a revolver, held in the hands of the said defendants, at the person of said Jeff Long, and then ana there threatening to shoot him if he, the said Jeff Long, resisted, and while he, the said Jeff Long, was under the influence of such fear so produced as aforesaid, said defendants did then and there wrongfully, willfully, unlawfully, forcibly, violently, and feloniously take, steal, and carry away from the person of him, the said Jeff Long, the sum of $17.90, good and lawful money of the United States, with the willful, unlawful, and felonious intent then and there to convert said money to their own use and benefit and to permanently deprive the owner, Jeff Long, thereof.

A severance was granted and upon his separate trial the defendant, Hill, was convicted. The jury failed to agree on the punishment. The court sentenced the defendant to imprisonment in the penitentiary for the term of five years. From the judgment he appeals.

It is contended: First, that the court erred in overruling the demurrer to the information. Counsel for *she defendant in their brief say:

"That the words or phrase,_ as used by the pleader in drawing the information, viz., ‘take, steal and carry away from the person,’ make the information duplicitous, in that it charges larceny and robbery.”

Our Penal Code defines robbery as follows:

"Bobbery is a wrongful taking of personal property in the possession of another from his person or immediate presence and against his will, accomplished by means of force or fear.” Section 2364, Bev. Laws 1910.
"To constitute robbery, the force or fear must be employed either to obtain or retain possession of the property, or to prevent or overcome resistance to the taking. If employed merely as a means of escape, it does not constitute robbery.” Section 2365, Bev. Laws.

Generally speaking, within this definition, robbery is a larceny with aggravated features added, and the larcenous taking of money or goods, of any value from the person of another, or in his presence against his will, by force, or by putting in fear, is robbery.

It follows that the information is not bad for duplicity and is definite and certain as to the offense charged. Therefore the demurrer thereto was properly overruled.

It is next contended that the court erred in overruling the application for continuance. The record shows that after the case was called for trial and the jurors were sworn on their voir dire counsel for the defendant moved for a continuance. The defendant’s affidavit for continuance sets forth:

That he filed a praecipe for a subpoena to Otto Parkinson, which was issued, but not served; "that, if present, said absent witness would testify that on the evening of the 29th day of November, 1918, he met Jeff Long on the streets of Yale, and about 8 o’clock in the evening they started to go to a place about a mile south of town, and, passing the Missouri, Kansas & Texas depot on their way, they were there held up by two men, one of which held a gun on them, and the other took what money they had; that said absent witness is acquainted with this defendant, C. L. Hill, and he knows that neither of said men was this defeñdant.”

A hearing was had on the motion. The state offered testimony tending to show that the absent witness, Parkinson, had been arrested as a participant in the crime; that at that time the defendant Hill said to the officers that he did not know Parkinson; that the defendant Hill and said Parkinson had been seen together a short time preceding the robbery; that the sheriff had used all reasonable diligence to serve a subpoena on said absent witness; that the case had been set for trial at that time on the request of the defendant. The defendant’s affidavit was silent as to whether or not the attendance of the absent witness at a future term of court could be secured or that his deposition could be obtained.

The rule is well settled that the refusal to grant a continuance in a criminal case is largely a matter within the discretion of the trial court, and nothing but a plain abuse of this discretion would warrant this court in interfering with the judgment. Upon the record before us we think the application for continuance was properly denied.

It is further contended that the court erred in permitting the state to introduce in evidence a pistol purporting to be the pistol used in the robbery.

The testimony shows that the prosecuting witness detailed with particularity the robbery as charged in the information and positively identified the defendant as one of the men who robbed him and identified the pistol introduced in evidence, a hammerless 38-caliber revolver, as the gun used in the robbery. Another witness testified that he traded this revolver to the defendant Hill, the day before the robbery. On this proof the pistol was properly admitted in evidence.

Another objection is urged to the ruling of the court in regard to the testimony of the witness J. B. Calderhead, who testified:

“I am the stillman at the Southern Oil Company Refinery, located about a quarter of a mile from the Katy depot at Yale. On the night of the robbery, about 9:30 p. m., the defendant Joe Hartley handed me the revolver introduced in evidence. At that time the defendant Hill was at the gate next to the Sante Fe tracks east of the refinery office. I should judge he was about 150 feet from us. There was an electric light within 15 feet of him, and to the best of my knowledge it was the defendant Hill; I knew his face pretty well.”

The evidence of the state shows that both the defendants had participated in the robbery, and it was competent for the state to show that shortly after the defendants were in the vicinity, and that at the time his codefendant, Hartley, delivered the revolver to the witness Calderhead while the defendant Hill was near by, apparently waiting for Hartley. In that connection the evidence was proper for the jury to consider, and was therefore properly admitted.

It is also contended that the evidence is not sufficient to sustain the verdict. The defense was an alibi, to prove which the defendant called two witnesses.

Bert Martin testified:

"I work at the Yale Cafe. I am acquainted with the defendant Hill. I saw him on the street and at the Belmont Rooms in Yale about 8 o’clock in the evening of November 29.”

On cross-examination this witness admitted that he had been convicted of the crime of grand larceny.

Mrs. Culberson testified:

"I conduct the Belmont Rooms. The defendant Hill roomed at my place in November. I saw him there about 8 o’clock to the best of my recollection on the evening of the 29th of November; he was talking at my telephone about that time.”

Testifying on his own behalf, the defendant stated:

“I did not rob Jeff' Long; I was not down where he was robbed that evening; I knew nothing of the robbery until I was arrested; I was not over at the Southern Refinery with Joe Hartley that night.”

It is well settled that a finding of the jury on conflicting evidence on an issue of fact in a criminal case is conclusive in an appellate court, and in our opinion the defendant in this case has been found guilty upon evidence which amply warranted his conviction.

The final contention is that, the court erred in overruling the supplemental motion for a new trial on the ground of newly discovered evidence.

After judgment was rendered against this defendant, Joe Hartley, his codefendant, made an affidavit that he (Hart-ley) had withdrawn his plea of not guilty and had entered a plea of guilty to the crime charged in the information; that on the day of the robbery Otto Parkinson informed him that Jeff Long had about $200 in cash on his person, arid asked him if he would assist him in robbing said Long, and it was agreed that Parkinson was to procure said Long to go to a resort about a mile south of Yale, and that the partner of Otto Parkinson, whose name affiant does not know, should assist affiant in robbing said Long; that he met Crawford Hill that evening and asked him if he had a revolver, and he said he had one in his room, No. 20 the Belmont rooming house in Yale; that affiant went to said room and procured the revolver, and with Otto Parkinson’s partner walked down the Missouri, Kansas & Texas Railroad track and waited for some time; that, Parkinson and Long not appearing, he and Parkinson’s partner started back to Yale and met Parkinson and Long near the Missouri, Kansas & Texas depot; that he pulled his pistol and told Long to throw up his hands, and Parkinson’s partner went through Jeff Long’s pockets and took what money he had; then he ordered Parkinson and Long to walk on; that he then went over to the Southern Refinery and there left the revolver; that Parkinson’s partner was with 'him; that, leaving the refinery, affiant went back to Crawford Hill’s room to tell him that he would return his revolver the next day, and found Hill in his room; that the defendant Hill was not present at the commission of said crime.

The defendant Hill’s affidavit is to the effect that he did not know what his codefendant, Hartley, would testify to until after his trial and until after the defendant Hartley had entered his plea of guilty and judgment and sentence had been pronounced upon him.

It is well settled that a motion for new trial upon the ground of newly discovered evidence is addressed to the sound discretion of the trial court, and the exercise of its discretion will not be disturbed, except in a case of manifest abuse; the presumption being that the discretion was properly exercised. Under all the circumstances, and in view of the evidence in this case, we think the trial court properly denied the supplemental motion for new trial.

Upon the whole case we are of the opinion that the defendant has had a fair trial, and, finding no reversible error in the record, the judgment of the trial court is affirmed.

MATSON and BESSEY, JJ., concur.


source: Caselaw Access Project

author: MATSON, J.

license: Public Domain

text:
    HOUSTON DUMAS v. STATE.
    No. A-3663.
    Opinion Filed June 18, 1921.
    Rehearing Denied Sept. 12, 1921.
    (201 Pac. 820.)
    (Syllabus.)
    1. Indictment and Information — Arson—Charging Burning of Several Buildings as One Offense is not Duplicitous. An information charging as a single act the burning of a number of designated buildings charges but one offense, and is not bad for duplicity.
    2. Appeal and Error — Burden to Establish Error and Resulting Prejudice. On appeal the burden is upon defendant to establish both error and prejudice resulting therefrom.
    3. Same — Harmless Error — Overruling Challenge to Venire Summoned by SheriffP a Witness but not Testifying. YYhere the appellant interposed in the trial court a challenge to a special venire of talesmen on the ground that they were summoned by the sheriff, and that said sheriff’s name was endorsed on the information as a witness against defendant, and there is no showing in the record that the sheriff was a material witness against defendant, and, on the contrary, it appears that the 'sheriff was not produced and did not testify as a witness ■against defendant, it cannot be said that the trial court, in the absence of such a showing, committed error prejudicial to defendant in overruling the challenge.
    4. Evidence — Use by State of Codefendant Proper Without Dismissal. Where two or more persons are jointly informed against, the state may use one of such defendants, either before or after conviction, as a witness against the others, without first dismissing the prosecution against the defendant so used as a witness.
    5. Same — Privilege Against Self-Incrimination — Testimony by Co-defendant Presumed Voluntary. Sections 5879 and 5880, Rev. Laws 1910, relate to the dismissal of a prosecution against one defendant in order that he may be compelled to be a witness against the other, but such sections must be construed in connection with section 27, art. 2, Const., requiring any person having-knowledge or possession of facts that tend to establish the guilt of any other person or corporation charged with an offense against the laws of the state to give testimony or produce evidence when legally called upon to do so, although the same may tend. to incriminate him, but relieving such person from subsequent prosecution or penalty or forfeiture on account of so testifying or producing evidence. It is the privilege of a codefendant to testify voluntarily against the other defendant on a separate trial, and where such codefendant claims no privilege against self-incrimination, the presumption will be entertained in this court that he testifies voluntarily.

      6. Evidence — Evidence of Other Crime to Show Motive. It is a general rule in criminal prosecutions that evidence of any offense other than that for which the prosecution is had is inadmissible. To this rule there are exceptions, and one of them is that evidence which tends to show motive or intent may be given against a defendant, although its introduction may involve defendant in the commission of other offenses.
    7. Appeal and Error — Necessity for Record to Support Assigned. Error. Assignment of error not supported by the record will not be considered on appeal.
    8. Evidence — Sufficiency to Corroborate Accomplice. Evidence examined, and held to be sufficient to corroborate an accomplice.
    Appeal from District Court, Choctaw County; A. A. McDonald, Judge.
    Houston Dumas was convicted of arson in the second degree, and he appeals.
    Affirmed.
    Plaintiff in error, Houston Dumas, hereinafter referred to as defendant, was charged jointly with one J. D. Moore, by information filed in the district court of Choctaw county, with the crime of arson, and upon a separate trial was convicted of second degree arson and sentenced to serve a term of five years’ imprisonment in the penitentiary. Briefly stated, the material evidence is, in substance, as follows:
    Defendant lived in the town of Soper, Choctaw county, and in the spring or summer of 1917 he became the agent of the Madill Grain & Elevator Company, in that town, for the purpose of buying grain and feed of different kinds and shipping same to said company to the city of Madill, in Marshall county. Arrangement was made between defendant and an agent of the grain and elevator company to transact the local business at Soper through the First National Bank of that city, and it appears from the evidence that the plan of operation was to draw drafts on said company through said bank for the grain, cotton seed, and other products that were purchased by defendant for the company at the town of Soper. A warehouse was provided for the use of defendant in storing the grain and other feedstuffs until cars could be obtained to transport the same; the said warehouse being a frame building located on lot No. 4 in block 21 in the town of) Soper, and owned by one Dick Crowder.
    The testimony shows that defendant, through connivance with other persons, drew, shortly before the alleged commission of this offense, approximately $200 from the Madill Grain & Elevator Company for materials that had never been purchased by him for said company. . Also there is some evidence to the effect that parties were permitted to take com from the warehouse in Soper after the same had been purchased by the grain and elevator company and paid for without the knowledge and consent of said company, and without any authority from it.
    According to the records kept by the Madill Grain & Elevator Company for money paid for corn and cotton seed presumed to have been purchased by defendant, there should have been about 686 bushels of corn in the warehouse and about 25 tons of cotton seed at the time of this alleged offense, while the evidence discloses that there was approximately in the neighborhood of only 150 to 175 bushels of corn and about from 5 to 8 tons of cotton seed in the warehouse at that time. The day before the fire, defendant, in a telephone conversation with the manager of the grain and elevator company at Madill, told said manager that he would ship the corn and cotton seed on hand immediately; and there is some evidence to the effect that men had been employed a day or two before this fire to separate the corn from the cotton seed in the warehouse. However, before the fire none of this grain or foodstuffs was shipped to the grain and elevator company.
    The fire took place about 1 o’clock a. m. on the morning of February 15, 1918, and the witness J. D. Moore, who was jointly informed against with defendant but who had demanded a severance of trial, testified in behalf of the state that he and defendant, with whom he was living at the time, took a can of coal oil over to the warehouse and set fire to the same. A high wind was blowing in the direction of other buildings in the town, which resulted in the communication of the fire to several buildings nearby and a destruction of- property to the extent of approximately $150,000.
    The defense interposed was an alibi, and in support thereof defendant introduced as his sole witness his wife, who testified that defendant came home that night from town about 11 o’clock and went to bed with her, and that he was asleep in bed at the time she heard the fire alarm; that their house was located about a block and a half distant from the warehouse. Defendant did not take the witness stand in his own behalf, in no way denying the positive testimony of Moore to the effect that they had set fire to the building, and in no way denying the testimony of other witnesses to the effect that defendant and they had drawn fictitious drafts against the grain and elevator company for foodstuff which had not been sold to defendant.
    Jordon & Burke, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton and W. C. Hall, Asst. Attys. Gen., for the State.
   MATSON, J.

(after stating the facts as above). It is first contended that the trial court erred in overruling the demurrer to the amended information. In the brief and also orally counsel advanced the argument that the information is duplicitous.

The charging part of the information is as follows:

“That Houston Dumas and J. D. Moore did, in Choctaw county, state of Oklahoma, on or about the 15th day of February, 1918, and anterior to the presentment hereof, commit the crime of arson, in the manner and form as follows, to wit: Then and there, in Choctaw county, state of Oklahoma, in the town of Soper, in said county and state, the said defendant, Houston Dumas, on or about February 15, 1918, was using a house of wooden structure, then the property of and owned by one Dick Crowder, situated on lot No. 4 in block 21 in said town of Soper, for storing, and then and there had stored therein, corn and also cotton seed, for and then and there the property of the Madill Grain & Elevator Company; that lot No. 6 is near and lies south of said lot No. 4, said lot being situated in block No. 21; that a wooden house was situated on said lot No. 6 at said time, a portion of which house had been, was then and there occupied by one J. S. Fry and members of his family as a lodging and sleeping place in the nighttime; that lot No. 7 in said block No. 21 is situated, adjoining, and south of said lot No. 6; that on said date there was a two-story wooden house on said lot No. 7, the upper story of which house had been and was then and there occupied by one Bun Henderson and members of his family, in the nighttime, as a lodging and sleeping place; lot No. 8 in said block No. 21 is adjoining, and lies south of said lot No. 7; that on said date there was a house on said lot No. 8 in which one Me-Worter was then and there doing a merchandise business; that lot No. 9 in said block No. 21 is adjoining and lies south of said lot No. 8; that' on said date a house was situated on said lot No. 9 in which A. A. Ferguson & Co., was then and there doing a merchandise business; that lot No. 10 is adjoining and lies south of said lot No. 9; that on said date there was a house on said lot No. 10 in which the Soper Trading Company was then and there doing a merchandise business; that lots Nos. 11 and 12 in said block No. 21 lie south of said lot No. 10, and said lot No. 11 adjoins said lot No. 10; that on said date there was a house on said lots Nos. 11 and 12 in which Failes Bros, were then and there doing a merchandise business; that on said date of February 15, 1918, or about said date, each and all of said houses herein described were situated so close together and so near each other that the burning of any one or either of said houses, so described herein, would manifestly endanger each and every other house herein described; that on or about the said date of February 15, 1918, in the nighttime, when a strong wind was blowing from the northeast, and said houses being so situated as above described, and each and all of said houses then and there being used in the manner and for the purposes herein set forth, and then and there occupied as a lodging and sleeping place, as described, and by the persons named as above set forth, the said defendants, Houston Dumas and J. D. Moore, acting together, did unlawfully, willfully, maliciously and feloniously then and there set fire to and burn said house on said lot No. 4, from which burning house fire was then and there communicated from said burning house on said lot No. 4, to each and all of said houses as above described, and each and all of said houses above described to which fire was so communicated, from said burning house on said lot No. 4 were burned and destroyed by said fire, it then and there being the willful, unlawful, malicious and felonious intention of said defendants that said fire from said house on said lot No. 4 be so communicated to each and every other building described and said buildings thereby burned and destroyed; that said defendants then and there set fire to and burned said house or building on said lot No. 4 in said block No. 21 in the town of Soper, Okla., with unlawful, felonious and malicious intent then and there to destroy said house or building and the said contents therein contained and each and every other house or building herein described, by and through said fire being so communicated from said burning house on said lot No. 4 to each and all of said buildings herein described.”

The particular statutes involved are as follows:

Section 2598, Revised Laws 1910, defines arson:

“Arson is the willful and malicious burning of a building, with intent to destroy it.”

Section 2600, Id., provides:

“Any building is deemed an ‘inhabited building,’ within the meaning of this article, any part of which has usually been occupied by any person lodging therein at night.”

Section 2601, Id., provides:

“The word ‘nighttime,’ in this article, includes the period between sunset and sunrise.”

Section 2607, Id., provides:

“Where any appurtenance to any building is so situated with reference to such building, or where any building is so situated with reference to another building, that the burning, of one will manifestly endanger the other, a burning of the one is deemed the burning of the other, within the foregoing definition of arson, and as against any person actually participating in the original setting fire, as of the inoment when the fire from the one shall communicate to and burn the other.”

Section 2608, Id., divides arson into two degrees and is as follows:

“Arson is divided in two degrees. Arson in the first degree is: First, maliciously burning in the nighttime an inhabited building in which there is at the time some human being; or, second, maliciously burning in the nighttime a structure adjoining to or within the curtilage of an inhabited building in which there is at the time some human being, and in such a way that such inhabited building is endangered; or, third, maliciously burning in the daytime any inhabited building or structure in which merchandising is carried on; or, fourth, maliciously burning in the nighttime any uninhabited building in which merchandising is carried on, or in which there is at the time any cattle, horses, hogs or sheep.
“Arson committed in any other way is arson in the second degree.”

In drawing the foregoing information, the pleader evidently intended to allege facts sufficient to charge the offense as defined by sections 2598 and 2607, supra. An analysis of these statutes convinces the court that the Legislature intended by the adoption and enactment of section 2607 to make the burning of one building by setting fire to another, so that the fire so set would manifestly endanger the other building, to be one continuous arson should the fire be communicated to and bum the other building. This is the view taken of the identical statute by the Supreme Court of New York in Wood-ford v. People, 62 N. Y. 117, 20 Am. Rep. 464, wherein it was held:

“An indictment charging- as a single act the burning of a number of designated dwelling houses charges but one offense, and is therefore not bad for duplicity.
“The criminal act is kindling the fire with felonious intent to burn the houses specified, and is consummated when the burning is effected; and the fact that the houses did not burn at the same time, and that but one was set on fire, the fire communicating therefrom to the others, do not make the burning of each a separate offense.”

In 2 Ruling Case Law, §t 12, p. 508, it is said:

“In the case of arson a single offense may be committed although several houses or articles are burned, provided only one fire was set. Consequently an indictment for arson which charges as a single act the burning of several houses charges but one offense and is not,bad for duplicity. ’ ’

See, also, State v. Colegate, 31 Kan. 511, 3 Pac. 346, 47 Am. Rep. 507; Early v. Commonwealth, 86 Va. 921, 11 S. E. 795.

The conclusion is reached that the information charges but a single act or transaction of burning, and is not bad for duplicity.

It is next contended that the trial court erred in overruling a motion of plaintiff in error to quash and set aside the panel or array of talesmen. The record discloses that the trial court made an order for the sheriff of Choctaw county to summon a special venire of 20 talesmen, and counsel for defendant moved to quash this panel on the ground that the said sheriff’s name was endorsed as a witness on the information to be used by the state against .defendant.

None of the proceedings had upon the trial of this challenge are set forth in the record. While there is a recital to the effect that the said talesmen were summoned by the sheriff, and it also appears that two of said talesmen served upon the jury, there is no showing that the sheriff was a material witness against defendant, and, on the contrary, it appears that the sheriff was not produced and did! not testify as a witness in the case.

It has been repeatedly held by this court :

“On appeal the burden is upon the appellant to establish both error and prejudice resulting therefrom.” Cardwell v. State (No. A-3272), 20 Okla. —, 201 Pac. 817, opinion filed June 4, 1921.”

As plaintiff in error has not brought before this court the record of hearing had upon the challenge to the special venire ■of talesmen, and, further, it not appearing that the sheriff was a material witness against defendant, it cannot be said that the trial court, in the absence .of such a showing and proof, committed error prejudicial to the substantial rights of defendant in overruling the challenge to the special venire.

It is next contended that the trial court committed reversible error in permitting J. D. Moore, the codefendant, to testify on behalf of the state. The particular ground is that the said eodefendant was an incompetent witness because the -charge against him had not been dismissed at the time he was called to testify. The codefendant, Moore, had asked for and had been granted a severance, and Dumas was alone upon trial.

Section 5879, Revised Laws 1910, provides:

“When two or more persons are included in the same indictment or information, the court may, at any time before the defendants have gone into their defense, on the application of the county attorney, direct any defendant to be discharged from the indictment or information, that he may be compelled to be a witness for the state.”

Section 5880, Id., also provides:

“When two or more persons are included in the same indictment or information, and the court is of the opinion that in regard to a particular defendant there is not sufficient evidence to put him on his defense, it must, before the evidence is closed, in order that he may be compelled to be a witness for his codefendant, submit its opinion to the jury, who, if they so find, may acquit the particular defendant for the purpose aforesaid. ’ ’

Section 5881, Id., provides:

“In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of a crime, offense or 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.”

From a consideration of the foregoing statutes, together with sections 21 and 27, art. 2, Constitution of Oklahoma, the conclusion is reached that section 5879, relating to the discharge of a defendant as a witness, applies only where the defendants are both upon trial, and it is the purpose of the prosecution to compel one defendant to be a witness against the other. The said statutes have no relation to the voluntary giving of testimony by a defendant. In this case the co-defendant, Moore, asserted no right under the Constitution against compulsion to give evidence which might tend to incriminate him. He testified freely and voluntarily.

In Brown v. State, 9 Okla. Cr. 382, 132 Pac. 359, in passing upon the identical question here involved, this court held:

“Where two or more persons are jointly indicted, the state may use one of such defendants either before or after conviction as a witness against the others without first dismissing the prosecution against the defendant so used as a witness. ’ ’

Section 5881, supra, and section 21, art. 2, Constitution, are provisions intended solely for the protection of the defendant, and should he assert his claim against giving incriminating evidence, then section 27, art. 2, Constitution, may be resorted to by him where he gives testimony or produces evidence tending to establish the guilt of his codefend-ant. The matter of giving evidence against a codefendant voluntarily is his privilege at all times, but he may assert his claim to protection against compulsion to so testify as to evidence that might incriminate him under sections 21 and 27, art. 2, Constitution. In such an instance (compulsion), if it be upon a joint trial, the charge against him may be dismissed as provided in sections 5879. and 5880, supra; or if, upon a joint trial or not, he testifies in good faith under compulsion, he may subsequently assert his rights against further prosecution on account of such testimony or evidence under the protection afforded by section 27, art. 2, Constitution.

From this record, however, the court concludes that the eodefendant testified voluntarily, that he claimed no privilege against self-incrimination, and that he was a competent witness for the state upon a separate trial. We regard this assignment of error, therefore, without substantial merit.

It is next contended that the trial court erred in permitting evidence of certain transactions between defendant and Madill Grain & Elevator Company, which tended to show that defendant had defrauded said company while acting as its agent by drawing certain fictitious drafts for materials not bought by him for said company, and also by permitting certain materials bought and paid for by said company to be extracted from the warehouse prior to the .fire.

In this connection it was the contention of the state that defendant set fire to the warehouse for the purpose of concealing the evidence of these other offenses. This evidence tended strongly to show a motive on the part of defendant to burn the said warehouse at that time, and also his intent in the burning of it. In 2 Ruling Case Law, § 21, p. 517, it is said :

“A rule applicable in criminal prosecutions generally renders inadmissible evidence of any offense other than that for which the prosecution is had. To this rule there are exceptions, and one of them is that when it is material to show the intent with which the act charged was committed, to illustrate its criminality, or to identify the accused as the person who committed the act, such evidence is admissible. This rule is applicable to prosecutions for arson.”

In McLaughlin et al. v. State (No. A-3574) 18 Okla. Cr. 627, 197 Pac. 717, opinion rendered May 7, 1921, it is held:

"Evidence material to the issues, and tending fo shed light on the guilt of defendants, is not rendered incompetent because it may, incidentally, involve defendants in the commission of a distinct offense.”

Also, upon the subject of motive or intent, other transactions tending to prove its criminal existence, even though they may involve other offenses, may be given in evidence against defendant. Smith v. State, 3 Okla. Cr. 629, 108 Pac. 418; Carter v. State, 6 Okla. Cr. 232, 118 Pac. 264.

The record before us discloses that as to the defendant, Dumas, the evidence allowed to be admitted in this case as to other offenses clearly tended to show that the motive for the commission of this arson grew out of the collateral crimes, and the court, in instructing the jury, specifically told the jury as follows:

"You are instructed that the testimony with reference to drafts and with reference to the corn and cotton seed in the building that is alleged to have been burned was admitted for one purpose only, and that purpose to show the motive, if any, existing upon the part of the defendant to burn said building, and cannot be considered for any other purpose.”

The conclusion is reached that the evidence introduced tending to connect defendant with the commission of other offenses, limited by instruction No. 9, supra, was properly admitted, and the ruling of the trial court in overruling defendant’s objection to its admission was, under the circumstances disclosed by this record, not error.

It is also contended that the trial court erred in permitting a witness to testify to a certain conversation had with defendant shortly after the fire, in which defendant admitted that he set out the fire. It is contended that the record discloses that such evidence was not a free and voluntary confession on the part of defendant, but was induced by reason of promises and immunity held out to him. In connection with this assignment we deem it sufficient to say that the record before us does not support the contention urged.

It is also contended that the evidence is insufficient because based on the uncorroborated testimony of the accomplice, Moore. This contention is without merit. There are ample facts and circumstances in the record of the evidence before us, independent of the testimony of the alleged accomplice, tending to connect defendant, with the commission of this offense. We deem the corroboration sufficient.

■ This cause is fully briefed, and was ably argued by counsel for appellant at the time of its submission. This court has given careful consideration to all grounds advanced and urged as reasons for a reversal of this judgment. An examination of the record, the brief, and authorities in support thereof, and a consideration of the argument made, fails to convince this court that any error occurred, from the inception of this prosecution to its close, prejudicial to the substantial rights of defendant. We think that defendant had a fair and impartial trial according to the forms of law.

For reasons stated, the judgment of the trial court is affirmed.

DOYLE, P. J., and BESSEY, J., concur.


author: BESSEY, J.

text:
    A. L. RAMSEY v. STATE.
    No. A-3442.
    Opinion Filed June 16, 1921.
    (198 Pac. 886.)
    (Syllabus.)
    Sunday — Conducting Picture Show not “Servile Labor.” Ordinarily* the selling- of admission, tickets and conducting on Sunday in an orderly manner a moving picture show is not “servile labor,” and not prohibited, within the meaning of section 2404, Rev. Laws 1910, and the first subdivision of section 2405, Rev. Laws-1910, as amended by Laws 1913, c. 204.
    Appeal from County Court, Washington County; Tom George, Judge pro tern.
    A. L. Ramsey was convicted of Sabbath breaking, and he-appeals.
    Reversed.
    Craver & Heyl and J. R. Charlton and J. C. Daugherty* for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   BESSEY, J.

The information charged, in substance* that on Sunday, December 2, 1917, A. L. Ramsey willfully and unlawfully performed servile labor in opening, managing-,, conducting, and operating a moving picture show by selling: tickets of admission, admitting divers persons thereto, and operating a certain film machine therein, which servile labor-was not a work of necessity or charity.

To this information a demurrer was filed by tbe defendant, on tbe ground that tbe information failed to state a public offense, and that tbe facts recited therein did not constitute servile labor, within the meaning of the statutes of Oklahoma. The demurrer to the informatiou was overruled* and the defendant allowed an exception.

The evidence discloses that the defendant on the day-alleged sold tickets and admitted divers persons to a moving picture show in Dewey, Okla.; there was no evidence that the defendant owned or conducted the show, or that he had anything to do with the operation of the film machine.

At the close of the testimony the defendant asked for a peremptory instruction, acquitting the defendant on the ground that the testimony failed to show the commission of the crime charged, or any crime. This application was overruled, and an exception was reserved and allowed. Covering the same points, certain instructions, not necessary here to recite, were requested by the defendant and refused by the court, to which exceptions were saved. Exceptions were also taken and allowed to the instructions given.

The issues here involved are the same as decided in the case of State v. Clint Smith, 19 Okla. Cr. 184, 198 Pac. 879, recently decided, and for the reasons there given this case is reversed, and the cause below is ordered dismissed.

DOYLE, P. J., concurs. MATSON, J., disqualified and not sitting.


text:
    WALTER WILLIAMSON v. STATE.
    No. A-3621.
    Opinion Filed July 16, 1921.
    Rehearing Denied Sept. 12, 1921.
    (200 Pac. 461.)
    (Syllabus.)
    1. Appeal and Error — Harmless Error — Improper Admission of Evidence. Evidence improperly admitted, on a mistaken theory of the case, will not be held reversible error where no miscarriage of justice resulted and defendant was not deprived of some constitutional or statutory right thereby.
    2. Trial — Refusal of Requested Instruction not Based on Evidence. It is not error to refuse a requested instruction where there is no evidence to require its giving.
    Appeal from District Court, Cleveland County; F. B. Swank, Judge.

      Walter Williamson was convicted of grand larceny, and he appeals.
    Affirmed.
    J. B. Dudley, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty„ Gen., for the State.
   MATSON, J.

In March, 1919, in the district court of Cleveland county, Walter Williamson, hereinafter designated defendant, was convicted of the crime of grand larceny and sentenced to serve a term of six months’ imprisonment in the state penitentiary. From this judgment of conviction he has appealed to this court.

Defendant was convicted of stealing over 100 pounds of cured pork meat of value of 50 cents a pound from a farmer by the name of Sid Murphy, who lived in the neighborhood of Moore, in Cleveland county, Okla. Defendant was. jointly informed against for this crime with a man named Gammell, and also a man named White, who was the father-in-law of this defendant.

It appears that in December, 1918, Murphy butchered some hogs, and Gammell helped him put away the meat,- and was acquainted with Murphy’s premises and with the place where Murphy kept his meat. On the night the meat was. stolen an automobile was driven in the public highway near Murphy’s house, a short distance east of his residence-, where it stopped and where the lights were turned out. The next morning Murphy missed his meat from the smokehouse, and' on making an investigation discovered tracks leading from the smokehouse to the place where the automobile had stopped the night before. The tracks made by the tires of the automobile were traced over several public highways and passed, by the house of White, the father-in-law of this defendant, and on to within a short distance of this defendant’s house-, where the parties tracking the same ceased their investigation and went to the county seat and procured a search warrant for the premises of White, Gammell, and this defendant.

On the next day a search was made of the premises of this defendant and 77 pounds of Murphy’s meat was found hidden inside of a barrel beneath’ a quantity of kaffir corn in the loft of defendant’s barn. Defendant was present and denied any knowledge of the meat being there or of how it happened to be concealed in that manner.

Defendant was possessed of an automobile with Diamond Tread tires of the size and kind that made the tracks leading from the premises of Murphy. Defendant also wore a pair of shoes which were in shape like one of the tracks seen to-lead away from the smokehouse in the general direction of where the automobile was standing. There was also grease-between the front and back seats on defendant’s automobile, and this grease smelled like the grease from cured pork meat.

The premises of Gammell were next searched, .and, while no meat was discovered there, Gammell was found wearing a pair of shoes that answered the description of the shoes, worn by the person who made the other track leading from Murphy’s smokehouse to the place where the automobile had stopped. A 25-20 cartridge was also discovered near the smokehouse and some of the same kind were discovered at Gammell’s place.

Upon searching the premises of White, the father-in-law of this defendant, the balance of Murphy’s stolen meat was discovered, concealed in the loft of his barn under some hay-packed in a gunny sack. White was not at home at the time.

Evidence was also introduced to the effect that defendant had admitted to a witness for the state that he helped steal Murphy’s meat, but they would have to prove it on him.

The defense interposed was an alibi; both defendant and his wife testifying that he was at his home during the entire night it was alleged that the meat was stolen.

During the progress of the trial, the court, over objection and exception of defendant, admitted a witness to testify that he and defendant and Gammell had been engaged in a series of other similar larcenies in that locality from neighboring farmers. This evidence was admitted on the theory that it tended to establish a general conspiracy by this defendant and others to commit a series of larcenies of foodstuff and grain in that particular locality, and the trial court instructed the jury that such evidence had been introduced for the purpose of showing that defendant had formed a common design with others to commit larcenies within the county.

The evidence was probably admitted under the theory of the law of conspiracy as expounded in the opinion of this court in Ex parte Hayes et al., 6 Okla. Cr. 321, 118 Pac. 609. We think the admission of this evidence was erroneous. The witness testified to no facts that placed this evidence within the rule announced in the Hayes Case, or within any other well-known exception to the rule against the admission of evidence of other offenses.

This court, however, is not authorized to reverse a judgment of conviction on the sole ground of the improper admission of evidence unless there has been a miscarriage of justice, or else defendant has been deprived of some constitutional or statutory right to his prejudice. Section 6005, Be-vised Laws 1910. A careful perusal and consideration of the evidence in this case convinces the court that the trial did not result in a miscarriage of justice. Indeed, we think defendant was extremely fortunate in escaping with a conviction with punishment assessed at six months’ imprisonment. The admission of this evidence did not tend, therefore, to excite the prejudices of jurors against defendant; and, in a case where a general conspiracy to commit a series of larcenies was established, as held in Ex parte Hayes, supra, evidence tending to show a common design on the part of all the coeonspirators, to commit this with other larcenies would have been proper, so that it cannot be said defendant was deprived of any constitutional or statutory right.

There was no sufficient predicate, however, laid in this, case in our opinion to admit of this evidence, but in view of the result of the trial the error will not be held to be reversible in this case.

It is also contended that the trial court erred in refusing; to give a requested instruction on petit larceny.

All the evidence is to the effect that the value of the property was in excess' of $20. There is no evidence that required the submission of an instruction on the subject of petit larceny. This court has repeatedly held that the trial court is, not required to give any instruction on any phase of law where there is no evidence to support it. Newby v. State, 17 Okla. Cr. 291, 188 Pac. 124; Williams v. State, 17 Okla. Cr, 375, 188 Pac. 890.

Finding no reversible error in the record, the judgment; is affirmed.

DOYLE, P. J., and BESSEY, J., concur.


text:
    J. W. LUPPY v. STATE.
    No. A-3623.
    Opinion Filed May 12, 1921.
    Rehearing Denied Sept. 12, 1921.
    (200 Pac. 550.)
    (Syllabus.)
    1. Intoxicating Liquors — Unlawful Possession — Large Quantities of: Whisky in Small Containers Prima Facie Evidence of Intent, Large quantities of whisky in sriiall containers found in the-possession of any person is prima facie evidence that he has it with the intent of violating the prohibitory liquor laws of the state. The possession itself, under such circumstances, is an overt act, and not within the rule stated in Proctor v. State, 15 Olila. Cr. 338, 176 Pac. 771.
    2. Sufficiency of Instructions. The instructions as to reasonable doubt, prima facie evidence, and guilty intent examined, and found sufficient.
    3. Intoxicating Liquors — Unlawful Possession — Sufficiency of Evidence. The evidence tending to show the unlawful possession of intoxicating liquor examined, and held sufficient.
    Appeal from County Court, Kay County; H. S. Burke, Judge.
    J. W. Luppy was convicted of violating the prohibitory liquor laws, and he appeals.
    Affirmed.
    J. E. Burns, for plaintiff in error.
    S. P. Preeling, Atty. Gen., and W. C. Hall and E. L. Fulton, Asst. Attys. Gen., for the State.
   BESSEY, J.

J. W. Luppy was, on the 12th day of May, 1919, in the county court of Kay county convicted of having had in his possession on the 10th day of April, 1917, certain intoxicating liquor, with the unlawful intent of violating the provisions of the prohibitory laws of this state. By the verdict his punishment was fixed at' 30 days in the county jail and a fine of $300. From the judgment and sentence rendered on the verdict, the defendant (plaintiff in error here) appeals to this court.

The testimony on the part of the state shows that on April 10, 1917, the defendant arrived at Ponca City on a railway passenger train, with a suit case; that an officer, armed with a search warrant, there searched the suit ease and found a large number of bottles of whisky, pints and half pints. That he then placed the defendant under arrest, and procured from him a trunk check, and took from his person some invoices of quantities of whisky purchased. Later the trjgik check was presented to the baggage master and the trunk barren in charge of the officer, and found to contain two five-gallon kegs of whisky, between which was a box containing some bottled whisky. The invoices indicated that the whisky contained in the suit case, the trunk, and box was all purchased at one time. The defendant, after he was arrested, admitted that the whisky in the suit case belonged to him.

The defendant did not take the stand, and no testimony was introduced in his behalf.

The defendant, in his petition in error here, urges 11 assignments of error. In these assignments of error the defendant first attacks the sufficiency of the information for the reason that it does not allege that the defendant had committed or perpetrated any overt act indicative of an unlawful intent to violate the prohibitory laws of this state; second, that the court erred in instructing the jury upon the subject of prima faeie evidence and reasonable doubt; and, third, that the evidence was insufficient to sustain a verdict, for the reason that the testimony disclosed that the liquor seized was in interstate transit, and technically not in possession of the defendant.

There is no merit in the contention that the information does not charge an offense for the reason that it contains no statement of an overt act showing an intent to violate the prohibitory laws of this state. The language of the information is almost identical with the language of the Constitution. Intoxicating liquor in this state is, in a sense, contraband; the possession of intoxicating liquor, like the possession of counterfeit money, calls for explanations, and where large quantities of intoxicating liquor in small containers is found in the possession of any person, that, of itself, is an overt act, and does not come within the rule announced in the case of Proctor v. State, 15 Okla. Cr. 338, 176 Pac. 771.

It is next urged that the court erred in defining io the jury the meaning of prima facie evidence. We think the definition given was sufficient, and taken in connection with the other instructions, particularly that part of instruction No. 2, "The defendant is presumed to be innocent of the crime charged against him in the information and of any guilty intent until the contrary is made to appear to the jury beyond a reasonable doubt,” fairly stated the law applicable to the testimony.

The testimony shows that the suit case containing more than a gallon of whisky in small containers was in the possession of the defendant at the railway station in Ponca City. The liquor consigned to the defendant in the trunk was still in the possession of the railway company, and the testimony concerning the latter was introduced as a part of the res gestae, to throw light upon the intent of the defendant. There is no merit to the claim that the liquor in the suit case was not in defendant’s possession, or that it was interstate shipment in transit.

The judgment of the court below is affirmed.

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


text:
    HERMAN JENTHO et. al. v. STATE.
    No. A-3490.
    Opinion Filed Feb. 12, 1921.
    Rehearing Denied Sept. 12, 1921.
    (200 Pac. 251.)
    (Syllabus.)
    1. Evidence — Judicial Notice of State and County Lines. Courts will take judicial notice of the boundary lines of the state and of the counties of the state.

      2. States — South Boundary of Oklahoma. The south boundary line of the state of Oklahoma is at the south or right bank of Red
    3. evidence — Sufficiency of Proof of Venue. The venue of a criminal act does not have to be proved beyond a reasonable doubt.
    4.Intoxicating Liquors — Conveyance Along Highway as “Conveyance from Place, to Place.” The conveyance of intoxicating liquor from, one point on a public highway to another point on the same highway about 600 feet north of the first point is a conveyance from place to place within the state.
    5.Appeal and Error — Harmless Error — Evidence as to State Boundaries. Por evidence admitted and held not to be prejudicial, see body of opinion.
    6.Indictment and Information — Sufficiency of Amendment by Inter-lineation with Reverification. An information in a misdemeanor case amended by interlineation and by leave of court, and properly reverified before the cause is called for trial, is not open to a motion to quash.
    Appeal from County Court, Bryan County; Lewis Paullin, Judge.
    Herman Jentho and others were convicted of unlawful conveyance of intoxicating liquors, and they appeal.
    Affirmed.
    J. W. Clark and George Trice, for plaintiffs in error”.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

This action was begun in the county court of Bryan county, Okla., by filing therein separate informations against each of the above-named plaintiffs in error, hereinafter designated defendants, charging each of them with the offense of unlawful conveyance of intoxicating liquor.

On the trial of. the cause the three eases by agreement were consolidated and tried as one case; the evidence as to each offense being practically identical.

On September 26, 1918, the consolidated case was tried to a jury, and a verdict of guilty returned as to each defendant. On the 2nd day of October, 1918, the court rendered a judgment of conviction against each defendant, and assessed a punishment of a fine of $500 and 60 days’ imprig^ypent in the county jail in conformity with the respective veraicts. Before the rendition of judgment, each defendant filed a motion for a new trial, which was by the court overruled, and after rendition of judgment an appeal was prayed to this court. An examination of the record discloses that the appeal is properly perfected.

The evidence introduced by the state discloses that these three defendants were traveling, on the night of the 9th of January, 1918, in three separate automobiles loaded with whisky, and came on to the bridge crossing Red river on the Jefferson Highway leading from Texas into Oklahoma near the south boundary of Bryan county, Okla., that the automobiles progressed as far as the gate on the bridge across the river, which gate is but a short distance south of the north bank of Red river and about 600 feet north of the south bank of said river; that defendants Huddart and Murphy were arrested on the bridge at said gate, but that defendant Jentho backed his car off the bridge and escaped into the state of Texas, where he was afterwards arrested and brought back into Oklahoma, and the parties were after-wards placed in the county jail in the city of Durant.

It is first contended that the evidence is insufficient to sustain the verdict of the jury. In support of this assignment of error, it is contended that no proof of the venue of the action was ever made.

The evidence on the part of the state discloses that these parties conveyed, in separate automobiles, large quantities of whisky on a public highway leading from Texas into Oklahoma, from a point on said highway located on the south bank of Red river along said highway and across a bridge on said highway over Bed river to a point on said bridge about he south bank of Bed river, into what is

Courts will take judicial notice of the boundary lines of the state and of the counties of the state. Reed v. Territory, 1 Okla. Cr. 481, 98 Pac. 583, 129 Am. St. Rep. 861; Johnson v. State, 5 Okla. Cr. 1, 112 Pac. 760; Spencer v. State, 5 Okla. Cr. 7, 113 Pac. 224; 15 R. C. L. p. 1081, § 19.

The south boundary of the state of Oklahoma is at the south bank of Bed river. United States v. Texas, 162 U. S. 1, 16 Sup. Ct. 725, 40 L. Ed. 867.

Also it has been held that? the venue in a criminal' cause does not have to be proved beyond a reasonable doubt.- Brunson v. State, 4 Okla. Cr. 467, 111 Pac. 988; Fuller v. State, 2 Okla. Cr. 86, 99 Pac. 1098.

We deem the venue of this action to have been sufficiently established to be in Bryan county, Okla.

It is also contended that the evidence is insufficient because it tends to show that the conveyance was from one place on the bridge to another place on the same bridge, which would constitute no offense; and in support of this assertion the case of De Graff v. State, 2 Okla. Cr. 519, 103 Pac. 538, is relied upon. In. that case it is held that to convey intoxicating liquor from one room in a private residence to another room in the same residence is not the conveyance from one place within the state to another place therein, within the meaning of the prohibitory liquor laws.

The conveyance from one point in a private residence to another point therein is entirely different from the conveyance from one point upon a public highway to another point upon the same highway, separated by space and capable of distinct proof as to location. There is no analogy between the facts in the case of De Graff v. State and the facts in this case. The official reports of this court are full of convictions summed where the proof disclosed a conveyance of intoxicatiiig. p^or from one point to another point along the same public highway.

It is also contended that the trial court erred in permitting the witness Collins to testify as to what constituted the boundary line between Oklahoma and Texas.

This witness was permitted to testify, over objection and exception, that a signboard had stood on the south bank of Red river for many years marked, ‘ ‘ Texas line and Indian Territory,” but that this sign had been washed away by a flood about seven years before the trial of the cause. The purpose «of this testimony was to locate the south bank of Red River, and to show that defendants had passed a certain distance north of the point where the sigp. had stood.

We do not consider the admission of this testimony prejudicial to defendants in this case. Independent of the location of this particular signboard, the witness Collins testified that he had lived in that neighborhood all his life; that he was a justice of the peace; and that at the time of the arrest of Huddart and Murphy they were about 600 feet north of the south bank of the Red river. The testimony of Collins is also supported by the testimony of the witness Cordell and the witness Roberts, and the uncontradicted evidence is to the effect that these defendants had proceeded along the highway distances ranging from 300 to 600 feet north of the south bank of Red river.

There being no controversy as to the fact that defendants had proceeded north of the south bank of Red river in conveying this whisky, we see no merit in the assignment that the witness Collins was permitted to testify as to the previous location of a signboard on the south bank of said river.

It is also contended that the trial court erred in over-. ruliu^\the motion to quash the information. In support of thit ^v,fiintion it is said:

“When these motions were filed the informations had never been verified by any person who had knowledge of the facts, and after the filing of these motions, and after the same was presented, the court permitted the county attorney, over the objections and exceptions of the defendants, to amend all of the informations by erasing a portion thereof, and writing in other portions. Also the county attorney was permitted to have the informations reverified by a person who claims to be cognizant of the facts. This, in our judgment, constitutes error. ”

The motion to quash the information was based on two grounds: (1) That the information is not verified as required by law; and (2) the information is insufficient to constitute a cause of action against defendant or to charge any offense against the laws of the state of Oklahoma. The identical motion was presented in each case on the 23d of September, 1918. The minutes of the court show that on said 23d day of September, 1918, permission was granted to the county attorney to amend the informations, whereupon defendants at their request were given one hour in which to file their plea. Defendants then filed a motion to quash and set aside the information, whereupon the county attorney asked and was granted leave by the court to reverify the information, after which the motion to quash was overruled, the defendants excepting. Defendants then refused to plead, whereupon the court entered for each defendant a plea of not guilty. Thereafter, on the 24th day of September, 1918, defendants filed a motion for a continuance, and were granted until 9 o’eloek on the 26th day of September, 1918, in which to prepare for trial. Thereafter, on the 26th day of September, 1918, the separate causes were consolidated on motion of defendants and by agree-merit, and the trial proceeded without further objection on the part of defendants or either of them. vv

It is clear, therefore, that leave was granted to amend the information prior1 to the interposing of the motion to quash it; that after the amendment was made the motion to quash was directed againt the form of the verification to the information, and the sufficiency of the charge contained in the information as amended. The information was reverified by permission of the court. This was all done before the cause was called for trial.

In French et al. v. State, 17 Okla. Cr. 542, 190 Pac. 707, among other things, it is held:

"An information amended by interlineation and by leave of court, and properly reverified before the cause is called for trial, is not open to motion to quash.”

The facts in this case on the question of the necessity to refile the information after the same had been amended by interlineation are substantially the same as the facts in the case of French et al. v. State, supra. The questions raised in this case on the verification of the information, the necessity of refiling the same, and the alleged error of the court in overruling the motion to quash the information are decided adversely to the contentions of counsel for defendants in the French Case and the authorities cited therein.

No substantial defense was made to this charge in the trial court. The state’s evidence fully supports the accusation, the verdict and the judgment.

For reasons stated, the conviction is affirmed.

DOYLE, P. J., and BESSEY, J., concur.


text:
    SAM LATTA v. STATE.
    No. A-3564.
    Opinion Filed Jan. 22, 1921.
    Rehearing Denied Sept. 12, 1921.
    (200 Pac. 551.)
    (Syllabus.)
    1. Intoxicating Liquors — Unlawful Transportation — Proof of Intoxicating Quality Not Necessary. In a criminal prosecution for the illegal transportation of spirituous liquor, where it is sufficiently shown that the -liquor being transported is whisky, it is not necessary to show specifically that such liquor is intoxicating.
    2. Same — Conviction—Sufficiency of Evidence. The evidence in this case examined, and found sufficient to support the verdict.
    Appeal from Superior Court, Okmulgee County; Guy F. Nelson, Judge.
    Sam Latta was convicted of the crime of illegally transporting intoxicating liquor. On April 12, 1919, a verdict of the jury was rendered, finding the defendant guilty as charged in the information, but failing to fix the punishment. The court thereafter sentenced the defendant to a term of 60 days in jail and to pay a fine of $200. From such judgment and sentence an appeal has been taken to this court.
    Affirmed.
    S. M. Rutherford, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall and E. L. Pul-ton, Asst. Attys. Gen., for the State.
   BESSEY, J.

Plaintiff was informed against and convicted of the crime of transporting certain spirituous liquor from some point unknown to Third and Broadway streets, in Muskogee, Okla., on the 4th day of February, 1919.

On the trial of the case plaintiff in error did not take the stand or introduce any evidence.

The testimony on the part of the state, in substance, was that the officer who arrested the plaintiff in error did so after the latter had driven his taxi to this certain point in the city of Muskogee and after he had there attempted to search plaintiff in error, for the purpose of ascertaining whether he had transported and had on his person any intoxicating liquor. Plaintiff in error there resisted being searched by the officer, who then forcibly conveyed him to jail, and on the way to jail plaintiff in error took out of his pocket several pint bottles and threw them on the pavement so that they were all broken, but that the officer in charge of the plaintiff in error knew that these bottles so thrown and broken had contained whisky, from the odor of the contents so spilled. That after the plaintiff in error had been lodged in jail, this officer and another officer returned to where the bottles had been broken and where portions of liquor still remained in depressions in the pavement, and verified the conclusion that the contents of the bottles was whisky.

It is earnestly contended by plaintiff in error that there was not sufficient proof that the contents of these bottles was intoxicating, and in his brief he cites a number of authorities in support of his contention. The cases cited, however, were where the liquid concoctions were for medicinal use or were beverages of unknown alcoholic content. In all such cases it is necessary to prove that the liquor had intoxicating properties, but in none of these cases was the question raised as to whether whisky was an intoxicating liquor.

The word "whisky” has a well-defined and well-known meaning and indicates per se, an intoxicating liquor; and where it is sufficiently shown that the liquor being transported was whisky, it is not necessary to show specifically that it was intoxicating. Markinson v. State, 2 Okla. Cr. 323, 101 Pac. 353; 15 R. C. L. Intoxicating Liquor, § 3.

There being no controverting evidence introduced, this court is of the opinion that there is sufficient evidence to sustain the verdict, and the judgment of the trial court is affirmed.

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


text:
    W. M. BOSWELL v. STATE.
    No. A-3499.
    Opinion Filed May 2, 1921.
    Rehearing Denied Sept. 12, 1921.
    (200 Pac. 256.)
    (Syllabus.)
    1. Indictment and Information — Positive Verification of Information —Sufficiency—Issuance of Warrant. Where an information in legal form is verified as true in positive terms, such verification constitutes a sufficient showing of probable cause to authorize the issuance of a warrant of arrest and to put the defendant on trial, and on a demurrer to the information and motion to quash the warrant no issue can be made as to the knowledge or want of knowledge of the facts charged on the part of the person who verified the information; nor can the information be set aside on the ground that the person who verified it had no personal knowledge of the facts verified.
    2. Same — Prosecution by Verified Complaint. Section 17 of the Bill of Rights of our Constitution and our statutes on criminal procedure provide for two methods of prosecuting misdemeanor cases. In courts of record the prosecution must be by indictment or information; prosecutions in courts not of record may be instituted upon a duly verified complaint. By statutory provision only the latter requires the indorsement, “I have examined the facts in this case and recommend that a warrant do issue.” Rev. Laws 1910, § 6176.
    3. Evidence — Proof of Venue in Unlawful Transportation of Liquor —States—South Boundary of Oklahoma. The south line of the state of Oklahoma and of the counties bordering upon Red river is the south bank of Red river, and the evidence in this case sufficiently discloses that the offense charged was committed in Cotton county.
    Appeal from County Court, Cotton County; J. C. Norman,' Judge.
    W. M. Boswell was convicted of the illegal transportation of intoxicating liquor, and he appeals.
    Affirmed.
    Charles H. Ruth and Lon Morris, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   BESSEY, J.

An information was filed against W. M. Boswell, plaintiff in error, hereinafter called the defendant, in the county court of Cotton county, Okla., on March 15, 1918, charging him with illegally transporting intoxicating liquor on that day from a particular place in that county to another designated place in the same county. On the trial of the case, September 10, 1918, a verdict was rendered finding the defendant guilty as charged and fixing his punishment at a fine of $150 and one month in jail, and judgment and sentence was rendered accordingly September 21, 1918.

J. D. Smith, a peace officer, and L. 0. Watson, a deputy sheriff, first saw the defendant in a Ford sedan car at the Valley View schoolhouse in Cotton county, Okla., about four miles from the Burkburnett bridge, spanning Red river at the Texas-Oklahoma line. Smith searched the car for liquor, but found none. While this search was in progress Watson discovered another car, a large Davis ear, following this Ford sedan about one-fourth mile in the rear, and this Davis car turned off on another road leading back towards the bridge. Watson called Smith's attention to this other car, and they followed it back to the bridge.

While in pursuit of this car they stopped and telephoned to the keeper of the tollgate at the bridge to lock the gate. The Davis car was driven upon the bridge to near the Texas end, -where the driver, finding that he could proceed no farther, abandoned the car and fled into the sand hills along the river bank. These officers found 157 quarts of whisky in the Davis car. The defendant, some minutes later, came back to the bridge in his Ford sedan, and these officers again searched the car and found the sacks were gone, and upon inquiry the defendant said he threw them over m the valley.

The defendant, who said that his name was Walter Graham, and that he lived at Burkburnett, there stated that he bad come over into Oklahoma from the Texas side of the river to see a Mr. Mitchell, and that he had returned to the bridge to see the outcome of the race between the officers and the driver of the Davis car. The officers then arrested the defendant and took charge of both cars, and one of them testified that he found curtains in the Ford sedan that fit the Davis car.

The keeper of the tollgate at the end of the bridge testified that the defendant drove from Oklahoma across the bridge into Texas on the evening of the day previous, followed by a man driving a Davis car, and that the defendant paid the toll for both cars; that the next morning they appeared again, on the Texas side, on their way into Oklahoma, and the defendant, who preceded the Davis car, again paid the toll for both cars; that after they had passed into Oklahoma she received a telephone message directing her to lock the tollgate, which she did, and that a little later the Davis car was again driven upon the bridge from the Oklahoma side to near where the tollgate was closed and locked at the Texas end of the bridge; that the officers in pursuit of the Davis car drove onto the bridge; that some minutes later the defendant also drove up in the rear;' and that the officers then took charge of both cars and placed the defendant under arrest.

The defendant claimed that he was a farmer living on and cultivating 160 acres of land three miles south of Oklahoma City; that he was the owner of 65 head of cattle, 25 of which were milch cows; that he had raised that year '520 bushels of wheat and had 17 acres of cotton in cultivation; that he came through Cotton county on this trip with his nephew, Hobart Boswell, en route to Electra, Tex.; that on the day following he came back into Cotton county from Texas to see a Mr. Mitchell about buying some cows. Defendant denied that he paid the toll for the Davis car on either occasion, as stated by the keeper of the tollgate, and stated that he did not know the driver of the Davis car and had.nothing to do with the liquor found in that car; that besides looking for milch cows he was trying to sell his Ford sedan, and told the officers he got the car at Ft. Cobb, which he acknowledged was a false statement. He also acknowledged that the name he gave the officers was an assumed name, and that the statements-that he made to the officers as to his business and place of residence was untrue. He stated that he had never before been arrested on any charge, and that he made* these false statements to the officers so that his friends in Oklahoma City would not find out that he was in a mix-up charged with transporting whisky. Defendant claimed that at the time of his arrest he was on his way back to Electra, Tex., to get his nephew.

The sheriff of Cotton county testified that he had found curtains in the Ford sedan that fit the Davis car, and that when he asked defendant to explain the presence of these curtains the defendant replied that he did not know anything about the curtains, and that he was not talking, and that he refused to make further explanations.

It was the theory of the state that the defendant and the driver of the Davis car were jointly interested in the transportation of the whisky found in the Davis car, and that the defendant in his Ford sedan was acting as an advance guard and scout, for the purpose of giving warning to the driver of the car containing the whisky whenever it might appear that there was danger of being discovered or apprehended by officers.

The defendant’s claim was that his crossing of the bridge on these two days near the same time that the driver of the Davis car crossed was merely a coincidence, and that he was innocent of the charge and had nothing whatever to do with the liquor confiscated by the officers.

The defendant insists that his motion to quash the information and warrant should have been sustained because the information was verified by a peace officer who had no actual personal knowledge of some of the facts therein stated. The deponent verified the statements as true in substance and fact. The question here presented was well considered' in the ease of Moss v. State, 4 Okla. Cr. 247, 111 Pac. 950, as follows:

“Where an information in legal form is verified as true in positive terms, such verification constitutes a sufficient showing of probable cause to authorize the issuance of a warrant of arrest and to put the defendant on trial; and 'on a motion to quash the information no issue can be made-as to the knowledge or want of knowledge of the facts charged on the part of the person who verified the information; nor can the information be set aside on the ground that the person who verified it' had no personal knowledge of the facts alleged.”

The rule as stated above has since been followed in other decisions of this court and in numerous decisions of the courts of other states. Munn v. State, 5 Okla. Cr. 245, 114 Pac. 272; Martin v. State, 5 Okla. Cr. 355, 114 Pac. 1112; Oelke v. State, 10 Okla. Cr. 49, 133 Pac. 1140.

In the second specification of error defendant complains that the information did not comply with section 6176, R. L. 1910, in that it did not bear the indorsement of. the county attorney, “I have examined the facts in this case and recommend that a warrant do issue.”

Section 17 of the Bill of Eights of our Constitution and section 5693, R. L. 1910, provide for two methods of prosecuting misdemeanors. The prosecution may be by information filed in the county, superior, or district court, or the prosecution may be upon complaint lodged with a justice of the peace or court not of record having jurisdiction of the offense. Section 6176, supra, is as follows:

“In all misdemeanor cases, before a warrant shall issue for the arrest of the defendant, the complaint must be submitted to the county attorney, or drawn by him and endorsed as follows: ‘I have examined the facts in this ease and recommend that a warrant do issue,’ and then filed with the court. If the action be brought without such indorsement the complaining witness must file with the court a bond to be approved by the court in the sum of not less than fifty dollars, conditioned to pay all costs, and the county shall in no event be liable for any costs incurred in that action, unless the complaint be first so indorsed by the county attorney.”

Section 5694, R. L. 1910, provides as follows:

“The county attorney shall subscribe his name to infor-mations filed in the county, superior or district court and indorse thereon the names of the witnesses known to him at the time of filing of the same. He shall also indorse thereon the names of such other witnesses as may afterwards become known to him, at such time as the court may by rule prescribe. All informations shall be verified by the oath of the prosecuting attorney, complainant or some other person.”

Section 6176, above quoted, relates to complaints in misdemeanor cases in justice of the peace courts and courts not of record, and has no application to an information lodged in the county court by the county attorney, as was done in this ease. The purpose of this statute is to prevent private persons from instituting and maintaining criminal actions in misdemeanor cases maliciously or ill-advisedly and without the consent of the county attorney and at the cost of the state, and the indorsement, “I have examined the facts in this case and recommend that a warrant do issue,” should be indorsed on the complaint by the county attorney unless the complaining witness who institutes such proceeding executes a bond conditioned to pay all costs. But where, as in this ease, the prosecution is upon information signed by the county attorney and verified in positive terms by the oath of a peace officer, and where the county attorney appears and prosecutes the action on behalf of the state, it is not necessary for such information to bear such indorsement.

In this opinion we think it unnecessary to give more than a synopsis of the testimony appearing in the record. Suffice to say that we find, upon a careful examination of all of the testimony, that there was ample evidence to support the verdict.

The defendant insists that the venue of the action was not proven as being in Cotton county, and that the court was for that reason without jurisdiction. The testimony discloses that this 157 quarts of whisky was conveyed from a spot near the Yalley Yiew schoolhouse in Cotton county, Okla., to near the south end of Burkburnett bridge, spanning Bed river from that county into Texas. In a recent ease, Keeter v. State, 19 Okla. Cr. — , 196 Pac. 970, and in the ease of Jentho et al. v. State, 19 Okla. Cr. — , 200 Pac. 251, it was held that the south line of the state of Oklahoma and of the counties bordering upon the state of Texas is the south bank of Bed river. To the same effect is the holding of the United States Supreme Court in the ease of the State of Oklahoma v. State of Texas, 255 U. S. —, 41 Sup. Ct. 420, 65 L. Ed. —, written by Mr. Justice Pitney and filed April 11, 1921.

For the reasons above stated, the judgment of the trial court is affirmed.

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


text:
    GEORGE W. (Doc) WEBB v. STATE.
    No. A-3441.
    Opinion Filed Sept. 12, 1921.
    (200 Pac. 719.)
    (Syllabus.)
    1. Receiving Stolen Goods — Guilty Knowledge Through Suspicious Circumstances. In a prosecution for receiving stolen property, knowing same to be stolen, it is not necessary that defendant have actual knowledge that the property was stolen, but it is sufficient if the circumstances accompanying the transaction were such as to make him believe it was stolen.
    2. Same — Instruction Proper. “To believe” is practically synonymous with “to believe in all probability,,; and an instruction which charges the jury that if they find beyond a reasonable doubt that defendant actually knew that the property was stolen, “or that he knew such facts as made him believe that in all probability it was stolen,” such would be sufficient to establish guilty knowledge, held to correctly state the law applicable to such cases.
    Appeal from District Court, Bryan County; Jesse M. Hatchett, Judge.
    George W. (Doc) Webb was convicted of receiving stolen property and sentenced to three years’ imprisonment in the state penitentiary, and he appeals.
    Affirmed.
    Hayes & McIntosh for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

Plaintiff in error, George W. (Doc) Webb, hereinafter referred to as defendant, was convicted of the crime of receiving stolen property and his punishment fixed as above stated.

Rev. F. A. Wharton, the pastor of the First Presbyterian Church at Sherman, Tex., was the owner of a Ford touring ■ear, equipped with seat covers, self-starter, and a gasoline-saving device. On July 15, 1917, this car was stolen, and on July 19th following was found in the possession of one Anthony at Achille, Okla., who had purchased same from this defendant. The seat covers, the gasoline-saving device, part of the self-starter, and the license tag had been removed, and the ear was identified by the owner by means of the engine number and .a dent on the car caused by a collision.

Anthony, Wharton, and an officer from Sherman, Tex., proceeded to Durant, Okla., the home of defendant, and the articles which had been removed from the ear, with the exception of the license tag, were found in defendant’s barn. Defendant denied that he knew the value of these articles, and stated at first that they had been removed before the car was put in his barn, but subsequently stated that they were removed after the ear was put in the barn.

The state’s evidence shows that defendant made at least three contradictory statements as to the price he claimed to have paid for the car; that he stated to Anthony before the sale was consummated that he (defendant) had secured the ear from some real estate men, when as a matter of fact he secured the car from two young men who lived in Denison, Tex., one of whom defendant said he had known for four or five years and yet did not know his name.

Defendant, as a witness in his own behalf, denied any knowledge on his part that the car was stolen when he received same.

Several witnesses testified that the general reputation of defendant for truth and veracity was bad. Defendant put his reputation as an honest, upright, and law-abiding citizen in issue, and the state introduced one witness who testified that such reputation of defendant was bad.

The only contention here is that the trial court erred in giving the following instruction, which was excepted to at the time: '

“As to the defendant knowing the automobile was stolen, it is not necessary that somebody should have told him that it was stolen, but it is necessary that he must have actually known that it was stolen, or that he knew such facts as made him believe that in all probability it was stolen. And in ascertaining whether or not he had such guilty knowledge, you will take into consideration all of the facts and circumstances which have been introduced in evidence, and you will consider the time and manner of receiving the automobile, the persons from whom he received it, his conduct with it afterwards, and his disposal of it, the price which he received, and all other facts and circumstances; and if after such consideration you find beyond a reasonable doubt that he knew that the automobile was stolen at the time he received the same, or that he knew such facts as made him believe that in all probability it was stolen, and he received it under those circumstances, that is sufficient as to his knowledge of its being stolen. And if you find these facts beyond a reasonable doubt, and also find the other facts necessary to constitute the crime charged, then it will be your duty to convict the defendant.”

The particular portion of this instruction complained of is that which tells the jury that if they believe beyond a reasonable doubt that defendant “knew such facts as made him believe in all probability it was stolen,” such belief was sufficient, in addition to the other elements of the offense, to authorize a conviction. It is urged that this is not a correct statement of the law on the question of the guilty knowledge required before a conviction can be had.

In a prosecution for receiving stolen property, knowing same to be stolen, it is not necessary that the defendant have actual knowledge that the property was stolen, but it is sufficient if the circumstances accompanying the transaction were such as to make him believe it was stolen. Bishop’s Crim. Law, § 1138; Wharton’s Crim. Law, §. 984; Clark & Marshall’s Law of Crimes, § 383; Price v. State, 9 Okla. Cr. 359, 131 Pac. 1102; McGill v. State, 6 Okla. Cr. 512, 120 Pac. 297; State v. Druxinman, 34 Wash. 257, 75 Pac. 814.

It is rare in eases of this kind that direct proof of defendant’s actual knowledge that the property was stolen can be obtained. The state of defendant’s mind can ordinarily only be ascertained by means of the inferences arising from the circumstances surrounding the transaction, and if they are such as to make a reasonable man believe the goods were stolen, the proof as to guilty knowledge is sufficient. Weinberg v. People, 208 Ill. 15, 69 N. E. 936; Huggins v. People, 135 Ill. 243, 25 N. E. 1002, 25 Am. St. Rep. 357; 22 L. R. A. (N. S.) 832, note. I

But it is urged that the phrase "in all probability” implies that if there were a suspicious circumstance surrounding the transaction there was sufficient proof of guilty knowledge.

This is not true. "Brief” itself admits of some doubt, being a conclusion arrived at from external sources after weighing probabilities. Webster’s International Dictionary.

"Probability” means that which is probable. “Probable” means "supported by evidence which inclines the mind to believe, but leaves some room for doubt; likely.” Webster’s International Dictionary; Gallamore v. City of Olympia, 34 Wash. 379, 75 Pac. 978; Oil Company v. Riley, 29 Okla. 19, 115 Pac. 1103.

In common acceptation, if one thinks a thing in all probability is true, he believes that thing to be true. So "to believe” is practically synonymous with "to believe in all probability,” and the insertion of the phrase "in all probability” did not authorize a conviction on any less amount of evidence than if same had been omitted, and it could have been omitted without altering the meaning of the instruction.

Plaintiff in error relies upon the cases of Pickering v. U. S., 2 Okla. Cr. 197, 101 Pac. 123, and State v. Rountree, 80 S. C. 387, 61 S. E. 1072, 22 L. R. A. (N. S.) 833. In each of these cases an instruction, which stated that if the jury found there were facts and circumstances which would put a “reasonably, prudent man upon inquiry” they should convict, was disapproved and held prejudicial. Such a test of guilty knowledge is entirely different from the one given in the instruction complained of in this case. That test would permit one to be punished for negligence unaccompanied by any intentional wrong, while in this case the jury was not authorized to convict unless they found defendant had actual knowledge, or believed in all probability, that the property was stolen.

In our opinion the instruction complained of contains a correct statement of the law applicable to .such cases, and the judgment is therefore affirmed.

DOYLE, P. J., and BESSEY, J,. concur.


author: PEE CUEIAM.

text:
    HATTIE M. BOWLES v. STATE.
    No. A-3562.
    Opinion Filed Sept. 12, 1921.
    (200 Pac. 558.)
    (Syllabus.)
    Appeal and Erroi — Case-Made—Invalid Extension by Special Judge. After a special judge has ceased to sit as a court he has no power to extend the time for making and serving a case-made in any action tried before him, and when he attempts to do so his act is a nullity.
    Appeal from County Court, Bryan County; C. B. Cochran, Special Judge.
    Hattie M. Bowles was convicted of the offense of concealing a person to avoid habeas corpus, and she appeals.
    Appeal dismissed.

      Deck & Newman, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. G. Hall and E. L. Fulton, Asst. Attys. Gen., for the State.
   PEE CUEIAM.

Plaintiff in error, Hattie M. Bowles, hereinafter referred to as defendant, was convicted of the offense of concealing a person to avoid habeas corpus, and her punishment was fixed at a fine of $25.

The record discloses that judgment was rendered on February 28, 1919, at which time the judge pro tempore granted defendant 40 days from that date within which to prepare a ease-made. On April 8, 1919, the judge pro tempore granted defendant an extension of 60 days from that date within which to prepare and serve case-made. The ease-made was served on the county attorney on June 2, 1919, which was after the expiration of the 40 days originally given defendant in which to prepare and serve ease-made.

A special judge may fix the time within which a case-made may be prepared and served, but he cannot extend such time for preparing and serving such case-made. If an extension of such time is desired, it must be granted by the regular judge. Smiser v. State, 19 Okla. Cr. 86, 198 Pac. 110; Johnston v. State, 6 Okla. Cr. 354, 118 Pac, 674; Austin v. State, 6 Okla. Cr. 177, 117 Pac. 198; Steen v. State, 5 Okla. Cr. 295, 114 Pac. 343; Dobbs v. State, 5 Okla. Cr. 475, 114 Pac. 358, 115 Pac. 370; Rasberry v. State, 4 Okla. Cr. 613, 103 Pac. 865. The case-made is therefore void, and no transcript of the record, properly certified, is attached to the petition in error.

The Attorney General has filed a motion to dismiss the attempted appeal for the reason that the special judge had no authority to extend the time for preparing and serving the case-made. In response to said motion, counsel for defendant quotes the following language from chapter 218, Session Laws 1917:

“* * # And at the expiration of such time for suggesting amendments, or thereafter, the judge of the court shall, at the suggestion of either party, without further notice, examine the case-made, together with any suggested amendments, and settle and sign the same, according to the true facts of the ease, and direct its attestation, sealing and filing by the clerk”

—and contends that this portion of said statute makes it unnecessary to obtain an extension of time to perfect an appeal We do not so construe such language. Chapter 218, supra, amends section 5242, Revised Laws 1910, by providing for a different method of serving the case-made when defendant in error is a nonresident of the state and has no attorney of record in the court where the case was tried, or where there are more than two defendants in error, and by preventing the dismissal of appeals in certain eases. There is nothing in this amended statute which gives a special judge authority to extend the time for preparing and serving a case-made, or permits the case-made to be served after the expiration of the time legally given within which such service must be made.

As stated, this amended statute merely provides an additional method of serving a case-made in certain cases, and in no way indicates that a special judge, who is without authority after the ease has been tried, except to sign and settle the ease-made, may grant additional time in which to prepare and serve the case-made, nor does said statute in any way indicate that no extension of time in which to prepare and serve case-made is necessary in order to perfect the appeal. The identical question here involved has been decided adversely to the contentions of plaintiff in error in the following decisions of the Supreme Court of this state: McGuire v. McGuire, 78 Okla., 164, 189 Pac. 193; Rogers v. Bass & Harbour Co., 47 Okla. 786, 150 Pac 706. In the foregoing cases it is held:

“After a special judge has ceased to sit as a court, he has no power to extend the time for making and serving a case-made in any action tried before him, and when he attempts to do so his act is a nullity. ’ ’

For the reasons given, the motion of the Attorney General is sustained, and the appeal is dismissed.


author: PER CURIAM.

text:
    Ex parte ARTHUR TERRY.
    No. A-4066.
    Opinion Filed Sept. 15, 1921.
    (200 Pac. 559.)
    Arthur Terry was held by a justice of the peace without bail, after examination, to await the action of the district court on the charge of murder, and he applied for writ of habeas corpus to be admitted to bail, which was fixed by the district court, and he applies for reduction of bail.
    Application granted.
    Stephenson & Holloway, for petitioner.
    The Attorney General, for the State.
   PER CURIAM.

Petitioner, Arthur Terry, alleges that he is unlawfully restrained of his liberty by R. B. Fitzgerald, sheriff of Choctaw county, Okla., and that the cause of restraint is that he was, on the-day of August, 1921, given a preliminary examination by L. W. Oakes, a justice of the peace of Choctaw county, Okla., and was held by said justice of the peace without bail to await the action of the district court of said county on the charge of having murdered, in said county, one Alice Hoover; but petitioner alleges that the testimony against him is insufficient to maintain the charge of murder, and that the proof is not evident nor the presumption great that he is guilty of said crime.

It is further alleged that on the 27th day of August, 1921, petitioner applied to Hon. G. M. Barrett, judge of the Twenty-Second judicial district of the state of Oklahoma, for a writ of habeas corpus to be admitted to bail on the charge then pending against him, and that the said judge granted petitioner bail in the sum of $20,000, which amount petitioner alleges is excessive, oppressive, and unreasonable, and that petitioner has been unable to give bail in said amount, and that the facts as disclosed by the evidence taken at the preliminary examination, and set forth as an exhibit to this petition, clearly disclose that the amount of bail as fixed by the district judge is unreasonable, and petitioner prays that this court fix bail in said case for him in a reasonable amount,' commensurate with the facts and his ability to make bond.

This court has carefully examined the transcript of the evidence introduced against and in behalf of petitioner at the preliminary examination, on which evidence it is stipulated by the parties that this application shall be submitted, and, without entering into a discussion of the evidence pro and con, the conclusion is reached that bail should be allowed to the petitioner in the sum of $10,000, conditioned as by law required for his appearance in the district court of Choctaw county to answer said charge, said bond to be approved by the court clerk of Choctaw county, Okla., and upon the approval thereof the respondent is instructed to enlarge the petitioner.