text:
    FRANK OLIVER v. STATE.
    No. A-10017.
    Oct. 21, 1942.
    (130 P. 2d 321.)
    D. D. Archer, Fred M. Black, and C. C. Andrews, all of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   BAREFOOT, P. J.

Defendant, Frank Oliver, was charged in the court of common pleas of Oklahoma county with the crime of securing credit fraudulently; was tried, convicted, and sentenced to pay a fine of $75, and has appealed.

It is contended, first, A, “That there is a material variance between the allegations of the information and the proof at the trial”, and, B, “That it is the defendant’s theory that the statute under which the defendant was prosecuted was unconstitutional insofar as it relates to* loans of money, or the borrowing of money is concerned, for the reason that no mention is made in the title of the act in respect to> the loan of money or the borrowing of money; and that the subjects are not included in the title, to wit:

“An Act to punish the making or use of false statements toi obtain property or credit”;

Second, “That the evidence is insufficient to sustain a verdict of guilty”.

The statute under which defendant was charged is Oklahoma Statutes 1931, section 2102, O. S. A. (Stat. 1941), title 21, § 1501, and is as follows:

“Frauds In General

“§ 1501. Securing credit fraudulently — 'Penalty.— Any person who shall:

“1st. Knowingly make or cause to be made, either directly or indirectly or through any agency whatsoever, any false statement in writing, with intent that it shall be relied upon, respecting, the financial condition, or means or ability to pay, of himself, or any other person, firm or corporation, in whom he is interested, or for whom he is acting, for the purpose of procuring in any form whatsoever, either the delivery of personal property, the payment of cash, the making of a loan or credit, the extension of a credit, the discount of an account receivable, or the making, acceptance, discount, sale or indorsement of a bill of exchange, or promissory note, for the benefit of either himself or of such person, firm or corporation; * * * shall be deemed guilty of a misdemeanor and punished by imprisonment for not more than six months or by a fine of not more than five hundred dollars, or both! such fine and imprisonment.”

We shall first consider the second assignment of error, which is the most important and presents the question as to whether the judgment and sentence can be sustained under the information filed, in view of the evidence submitted on the part of the state to prove the offense of which the defendant stands convicted.

The facts as revealed by the record are that the defendant was charged under the statute above quoted with the crime of “securing credit fraudulently”. It was alleged in the information that the defendant “wilfully, unlawfully and wrongfully obtained from W. W. White-man, Jr., seventy-five dollars good and lawful money of the United States of America, etc.” The evidence of the state was that W. W. Whiteman, Jr., was the business manager of The Purchasers’ Service Company, which was a corporation organized for the purpose of making, loans to parties who were in debt and needed money to meet their obligations. The business was somewhat unique, as stated by Mr. Whiteman. He termed it the making of “consolidated loans”. One desiring its service made a written application and listed therein the debts which he desired to pay. If everything was regular and the loan was made, checks for the amount of each debt were made out, payable to the parties to whom the borrower owed money. Each of these parties was required to sign a note guaranteeing the payment of the amount of their bill, and in the event the same was not paid by the borrower they would be liable for the amount of their debt. The total amount borrowed would be divided into1 monthly payments and the borrower would make these payments, which included the fee for this service and certain interest charges. The borrower received no money or cash, but his debts were paid direct to his creditors by checks issued by the corporation. This was the procedure followed in this case.

In the instant case, the defendant, who was a Pullman porter, made a written application for a loan of $75 to pay certain indebtedness which was specified in the written application. There was a conflict in the testimony of Mr. Whiteman and the defendant as to whether two written applications were made or just one. However, both testified that the loan was at first turned down; that it Avas afterward accepted and the loan made Avhen, upon request of Mr. Whiteman, tAvo personal cosigners Avere secured by defendant, Avho signed the note given in connection Avith the application. The Avritten application has certain questions to be answered. It was made out by Mr. Whiteman and signed by the defendant. A part, of the statement was as follows:

“Car payment:

Balance $ Payable to : - No.

“Bank Loan payments :

Balance $ Payable to : No.

“Other Contract payments:

Balance $ Payable to: No'”.

A few months after this loan was taken out defendant filed a petition in bankruptcy, with a total indebtedness of 1710.53, and among them as an indebtedness on a car Avhich defendant had bought. Much of it was old indebtedness which was not pressing for collection.

There is a conflict between the evidence of the prosecuting witness, Whiteman, and the defendant with reference to the conversation between them at the time the loan was taken out. Mr. Whiteman testified that he understood by the Avritten statement that it contained all of defendant’s indebtedness, but he would not testify that defendant told him it was all of his indebtedness. On the other hand, defendant testified that he told Mr. White-man of the automobile indebtedness and Mr. Whiteman told him he could not take that up and that it would be best not to mention it in the statement, as he could not get the loan by his board if he did so. The testimony of Mr. Whiteman on this point was as follows:

“Q. And discussing this statement with him, did you ask him or question him about any debts or obligations he had at that time? A. Yes, sir. Q. And did he telli you about that? A. Well, you see listed on the application there the ones he told me about. This is in my handwriting. Q. As he told you those, did you list them here? A. Yes, sir. Q. What did he tell you? A. We have a series of questions there on that blank — ■ Mr. Archer : We will object to that on the ground it is not responsive to the question. The Court: The instrument will speak for itself, I take it. Mr. Daugherty: Yes, but I am not quite ready to introduce it. Q. Did he tell you that the obligations listed on this application for a loan were the only obligations he had at that time? Mi% Archer: Objected to on the ground it is leading. The Court: What did he tell you about it? I think that would be better form. Q. Yes, what did he tell you about these obligations and debts? A. It was my understanding that was his total debt. Mr. Archer: We object to his understanding. Q. Just tell what he told you? A. He told me those were the bills he owed. * * * Q. All right, at the time Frank Oliver signed that, he never told you at any one time that was all he owed, did he? A. That was my understanding. Q. I said, he didn’t tell you that, did he? A. I can’t remember the exact words Mr. Oliver said. Q. You testified just a few moments ago when the county attorney asked you if Mr. Oliver told you that, you said that Mr. Oliver said he owed these. A. That’s right. Q. But he didn’t say he didn’t owe anything else, now, did he, Mr. Whiteman? A. Well, we had some other questions there that he answered ‘no’. I see, did you have any payment on furniture, and the answer is no, and bank loans, no-, and so on. Q. Did he tell you that he didn’t owe anything else? Mr. Daugherty: Object to that because the instrument itself shows that. Q. All right, we will let the instrument speak. The Court: I take it from that instrument which has been introduced in evidence that all the questions that were propounded to him at the time are answered on that questionnaire. Is that correct, Mr. Whiteman? A. There might have been some collateral talk, but we do have specific questions that we ask; yes, sir. Q. (Mr. Archer) All right, Mr. Whiteman, is there any place on there that shows that there was no other obligations owed by him other than the amount listed right here? A. No, sir. Q. Then he never represented to you in this instrument or anywhere that there was no other obligations? A. Well, when he answered the questions, was there any car1 payments? Q. Answer yes or no. A. You can’t answer yes or no, Mr. Archer. Q. This is the complete list of indebtedness and amounts included in the application? A. Here is the statement of the monthly expenses. Do you have any furniture payment? no. Car payment, no. Bank loans1, no. Q. Bank loans? A. And some of the record will show that at the time he did have those obligations that he was making payments on. Q. Did he tell you he didn’t owe anything? A. He told me he was not making those payments. Q. That might be so, but did he tell you that he owed anything else, or did he tell you he didn’t owe anything? A. Which do you mean, Mr. Archer? Q. Did Frank Oliver tell you that he didn’t owe anything other than what he listed there? A. As a general statement; no, sir. Q. All right; that’s all.”

It is unnecessary to quote further from the evidence on this point. We have read it carefully. It reveals from beginning to end an attempt to collect a debt from defendant and, after exhaustion of that, a prosecution was instituted against this defendant as above outlined. Mr. Whiteman would not testify that defendant told him that the written application contained all of his indebtedness.

The statute above quoted and under which defendant was charged is similar to our statute of obtaining money or property under false pretense, Oklahoma Statutes 1931, section 2088, O. S. A. (Stat. 1941), title 21, § 1541, although it is not exactly like it. In the early case of Taylor v. Territory, 2 Okla. Cr. 1, 99 P. 628, 629, Judge Doyle, in an opinion construing that statute on false pretense, said:

“To constitute the crime under our statute, three things are essential: First, a false representation as to an existing fact; Second, a reliance on that representat-ion as true; and, third, it must be the moving cause which induced the owner to part with his property.”

We see no< reason why the above principles should not apply to the statute here under consideration. If the agent of the loan company required the defendant to secure two- personal cosigners on the note, after first turning down the application, and then making the loan after two cosigners were secured, it is certainly reasonable to believe that he relied upon the cosigners, and not upon the written statement, and that these cosigners were the “moving cause which induced the owner to part with his property.”

The testimony of Mr. Whiteman with reference to this was as follows:

“Q. Have you got your records here on that? A. No; sir. Here is what happened in this case. When the application was originally submitted to me, we rejected it and then Frank came back and talked to me about it later on the basis of the same application. He provided a couple of individual cosigners, and that is the reason we decided to take the loan after the original rejection. Q. What caused the rejection of his application? A. Well, a couple of creditors there were not merchants, and ordinarily we insist on a merchant’s endorsement. One was Daisy Garry, and one was Mrs. ¡Stella Jones, I believe. Q. They were not what? A. They were not merchants. Q. And you like to have those that you take in on this to be merchants? A. Yes, sir; we usually take merchant endorsements. Q. And so for that reason you had him get some cosigners on the note? A. Yes, sir; that’s correct. Q. There were no moneys paid Frank Oliver ? A. Only these checks.”

From what has been stated we have come to the conclusion that the evidence offered by the state is insufficient to sustain the charge in the information. It, therefore, becomes unnecessary to consider the other questions raised by the defendant as to the failure to sustain the amended demurrer to tbe information and the constitutionality of the statute.

The judgment and sentence of the court of common pleas of Oklahoma county is reversed, Avith the directions to discharge the defendant unless the county attorney has sufficient evidence upon Avhich to base another tidal of this defendant.

DOYLE and JONES, JJ., concur.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    EARL HERREN v. STATE.
    No. A-10166.
    Oct. 21, 1942.
    (130 P. 2d 325.)

      Holmes H. Colbert, of Sulphur, for plaintiff in error.
    Mae Q. Williamson Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

Earl Herren was charged in the district court of Murray county with the crime of burglary in the second degree, after a former conviction of a felony, was tried, convicted, the punishment left to the court, who thereupon sentenced the defendant to ten years and six months in the State Penitentiary, from which judgment and sentence an appeal has been taken.

We shall first consider two- of the assignments of error presented by counsel for defendant which refer to the same occurrence and which properly should be discussed together. These two- assignments are:

“Error of the court in giving further instructions to the jury after they had begun deliberation of their verdict in the absence of the defendant and his counsel.

“Error of the court in suggesting to the jury the nature of the verdict to be rendered by them and of advising the jury as to law and evidence after the case was submitted to the jury for their deliberation and after they had been unable to agree upon the verdict, all in the absence of the defendant and his counsel.”

The record discloses that the trial court kept the jury deliberating for several hours after the cause had been submitted to them. The record reveals that at 1:15 a.m., after the jury had been deliberating several hours and after counsel for defendant had left the courtroom and defendant was in bed in the county jail at the courthouse, the trial court had the jury brought to- the district courtroom, and, in the absence of defendant and his counsel, the following proceedings were had:

“By the Court: Gentlemen, have you arrived at a verdict in this case? By members of the jury: No>, sir. By the Court: Let me ask you if it would help any if you would go get a cup of coffee? By the jury: No, sir. By the Court: The defendant is not here, but his attorney waived his presence and the defendant himself has gone to bed, hasn’t he? By the sheriff: Yes, sir. By the Court: The court might say this, for the jury’s benefit, that under the laws of this state, that if the jury likes, it may find the defendant either guilty or not guilty, in accordance with the court’s instructions, and if you should find the defendant guilty and prefer to do it, the punishment can be left to the court in this case. In that connection, I might say this: That there is some doubt in the court’s mind about the matter of the time that the defendant would draw in this case. That is, with reference to whether ten years would be the maximum or ten years the minimum. As you gentlemen know, I instructed you first one way and at the instance and after argument of the Attorney General it was changed, but we have been arguing about it ever since the jury has been out. By one of the jurors : You ain’t the only ones that has argued. By the Court: I would like to ask this, that if the court would assure you that the matter would be given proper consideration and the attorneys have an opportunity to argue that out, and you were permitted in the event of a conviction to leave the punishment to the court, if that.would assist you in arriving at a verdict in the case? By one of the jurors: I believe it would. By the Court: Would that help you? By another juror: I believe it would. By the Court: How do you other members of the jury feel about it? Another juror: I feel that it would. By the Court: Do all the rest of you feel that it would help you in arriving at a verdict in the case? By two of the jurors: I think it would. —I am quite sure it would. By another juror: Yes, sir. By the Court: Do you think it would help, you Gentlemen? (indicating) By one of the jurors: I am pretty sure it would. By the Court: How do you folks feei about it? By other jurors: I am pretty sure about it. By the Court: How about you? (indicating) By one of the jurors: I don’t know. By the foreman of the jury: Would we be allowed to ask a question about these instructions? By the Court: Yes, sir. By Mr. Day, a member of the jury: About the evidence that we have, about what kind of evidence that the jury could render a verdict on? By the Court: Well, yes. I don’t understand you? By Mr. Day: What I mean is, could we ask a question as to whether that we can render a verdict — whether this verdict can be rendered on just circumstantial evidence that links all of this together, or would we have to have proof that he had actually been caught with this stuff or that he had been seen with it? By the Court: I don’t have the instructions, but the court instructed you with reference to circumstantial evidence that the circumstances and each one of them must be consistent with one another and inconsistent with any hypothesis that he wasn’t guilty. This is a circumstantial evidence case. By Mr. Day: That is the way I understood it. By the Court: Nobody testified that they saw1 the defendant g,et the stuff in question, so- it is necessarily a circumstantial case. The court would not be allowed to comment on the evidence, you understand that, even if the defendant were here, and we want to preserve his rights the same as if he were here. By one of the jurors: Would it be possible if we could agree and would agree to leave it up to the court? By the Court: What do you mean? By the juror: If we can’t agree whether he is guilty or not guilty and if we could all agree to do> it, could we leave it up to the court-. By the Court: You mean let the court decide as to whether he is guilty or not guilty? No, sir. That would do away with his right to a jury trial. If you should decide that he is not guilty, you will acquit him, and if you should decide he is guilty and want to leave the punishment to the court, you may do that. There are cases when the guilt of the defendant is left to the court, but that is where a jury is waived. In a case where a jury is demanded, the jury has to decide whether the defendant is guilty or not, and the court, as I said, in the proper cases can determine the punishment, if any. Did I tell you or the bailiff tell you that since we have already gone past the midnight hour that you will be entitled to- your remuneration for today, as you know, and as far as I know, there is no- necessity for staying any longer on that score. By. one of the jurors: A verdict is what we are after and I believe it can be arrived at. By the Court: If that is true, and I think that most or all of you have indicated that it is, then you go back to your jury room and if you can arrive at your verdict pretty soon, we will wait. Have you any further questions? All right, you may go. (Whereupon, the jury retired to the jury room for further deliberation.) .Thereafter, and at 1:50 o’clock a.m., of the said 29th day of May, 1941, the jury returned to the courtroom and the following proceedings were had and entered herein, to wit: By the Court: Gentlemen, have you arrived at a verdict in this case? By the foreman of the jury: Yes, sir. By the Court: Would you gentlemen sit here just a minute, please. Get the defendant, please, Mr. Sheriff. (Whereupon, the defendant was brought into the courtroom and the following proceedings were had, to wit:) By the Court: Gentlemen, have you arrived at a verdict in this case? By the foreman of the jury: Yes, sir. By the Court: Pass the verdict to the bailiff and he to the clerk and the clerk will read and record the verdict. Let the record show, Mr. Reporter, that defendant’s counsel advised the court clerk that his presence might be waived at the receiving of the verdict. (Whereupon, the court clerk read the verdict, after which the following proceedings were had, to wit:) By the Court: Now, Gentlemen, the verdict as it stands is not in proper and legal form. I might say for the benefit of the defendant here that in the absence of his. counsel and in answer to questions by the jury on their return, that the court suggested a while ago that if it would help the jury in arriving at a verdict in the case that they could fix the guilt of the defendant, that is, whether he is guilty or not guilty, and if they liked and if they found the defendant guilty then the court could fix the punishment. Gentlemen of the Jury, if that is your idea, to leave the punishment to the court you will have to specify that on your verdict. You¡ may do that here in the courtroom. By the foreman of the jury: That was our idea. By the Court: Let me suggest Mr. Foreman, that you write in there — Strike out the words ‘and fix his punishment at blank years’ and say ‘leave the punishment to the discretion of the Judge.’ By the Foreman: Fix the punishment at the discretion of the judge of the court, or which? By the Court: Either one, and mark out those other words. Now, let the record show that in the absence of the defendant’s counsel, that the defendant’s counsel having requested the court that all of defendant’s rights be preserved, that the defendant objects to all of this and his objections are overruled, exceptions allowed. The clerk will read the verdict as amended.”

Need we comment on such grossly improper conduct? In the first place, there appears no good reason why the jury should have been kept deliberating until that late hour. Nerves become frayed, tempers short and it is not conducive to fair verdicts to keep a jury deliberating until 2 o’clock in the morning. It would have been much better at the time the case was finally submitted to the jury to have directed them to begin their deliberation, and, if they had not reached a verdict by 10:00 p.m., to retire and resume their deliberation the next morning when their minds would be refreshed. Laying this question aside, however, we consider the far more serious question of the prejudicial effect of the statements which were made.

The remarks of the trial court clearly indicated to the jury that he thought they should return a verdict of guilty and was an invitation to them to return such a verdict. The trial court had first instructed the jury that in case they found the defendant guilty they should fix his punishment at any term in the penitentiary not exceeding ten years. The defendant was being, tried for the crime of burglary in the second degree, after a former conviction of a felony, and the punishment in case of a conviction for such offense was any term in the penitentiary not less than ten years. Spann v. State, 69 Okla. Cr. 369, 103 P. 2d 389; 21 O. S. 1941, § 51, 1931 O. S. § 1817. When this palpable error in the giving of said instruction was called to the court’s attention by the Assistant Attorney General, who was present , as a special prosecutor, the court substituted a correct instruction that in case the defendant should be found guilty he would be punishable by imprisonment in the penitentiary for any term not less than ten years.

When the court advised the jury at 1:15 a.m. in the absence of defendant and his counsel that “there is some doubt in the court’s mind about the matter of the time that defendant would draw in this case,” and assuring the jury that if they found him guilty he would give the matter proper consideration and allow the attorneys to argue that question, such conduct was: clearly an abuse of the defendant's rights. It is apparent that some of the jury was not even convinced of the guilt of the defendant, as one of them suggested that it might be better to leave the question of guilt and punishment both to the court. It is doubtful if the jury had been advised definitely that the minimum punishment would have been ten years in the State Penitentiary, whether they would have ever returned a verdict of guilty. The case against the defendant was extremely weak and based wholly on circumstantial evidence. He was not found in possession of the property. The chief circumstance against the defendant was the fact that he was seen in the store which was burglarized the afternoon before the burglary was committed. In order to' secure the conviction of the defendant, the court admitted evidence of other crimes allegedly committed by the defendant. The admissibility of this evidence will be hereinafter discussed.

In Graham v. State, 73 Okla. Cr. 337, 121 P. 2d 308, it is stated:

“If after the jury has retired to deliberate on their verdict it becomes necessary for the court to communicate with them or to give them additional instructions, they must require their officer to conduct them into open court, and such ‘information required must be given in the presence of or after notice to> the county attorney and the defendant or his counsel, or after they have been called.’ ”

This question was well presented in the brief filed by counsel for defendant, The attorneys for the state have chosen to ignore this contention. Their brief on this question is as silent as the tomb. This court assumes that where the defendant raises an issue in his brief, which is well supported by legal authority, and counsel for the state does not mention the issue by argument or citation of legal authority, counsel for the state is unable to condone the conduct about which complaint is made. It would have been much better in the instant case if counsel for the state had filed a confession of error months ago and called it to the attention of this court so that the matter could have, at that time, been reversed and remanded for a new trial without the resultant delay which has occurred by allowing the case to come up for consideration in its numerical order.

The chief answer which counsel for the state has made in his brief to all of the contentions of the defendant is, “This is a bad man and should serve the rest of his days in the penitentiary.” This court is well acquainted with the fact that the defendant is a bad character. The writer of this opinion was the author of three other opinions in which this defendant was involved and is thoroughly acquainted with his criminal record. Herren v. State, 72 Okla. Cr. 254, 115 P. 2d 258; Herren v. State, 74 Okla. Cr. 424, 127 P. 2d 215; Herren v. State, 74 Okla. Cr. 432, 127 P. 2d 384. The long criminal career of defendant was discussed in Herren v. State, supra, 74 Okla. Cr. 432, 127 P. 2d 384.

We are unacquainted with any rule of law which says that appellate courts should ignore all constitutional provisions and rules of criminal procedure and affirm a conviction of a defendant merely because he is a bad man. This court will see that every defendant charged with crime, regardless of his previous criminal record, is accorded a fair and impartial trial. This defendant may be guilty of the crime charged, but the rules of criminal procedure which we must follow are for the trial of the innocent as well as the guilty, and if we should sustain the conviction of this defendant despite the star chamber proceedings which occurred long past the midnight hour, in the absence of both defendant and his counsel, then such practice might later be used to convict an innocent man merely because the state’s attorney and the trial court were thoroughly convinced that he was guilty.

There is one other assignment of error which merits discussion. The trial court, over the objection of the defendant, allowed the state to prove many other crimes allegedly committed by the defendant for the following purpose, as he instructed the jury in instruction No. 8:

“* * * Such evidence has been admitted and is to be considered by you only for the purpose of throwingl light upon the question of the guilt or innocence of the defendant of the specific charge contained in the information.”

In Nemecek v. State, 72 Okla. Cr. 195, 114 P. 2d 492, 494, 135 A.L.R. 1149, it is stated:

“The general rule is that when a defendant is put upon trial for one offense, he should be convicted, if at all, by evidence which shows that he is guilty of that offense alone; and evidence which in any manner shows, or tends to- show, that he has committed another crime, wholly independent, even though it be a crime of the same sort, is irrelevant and inadmissible.

“As an exception to the general rule, evidence of other offenses: recently committed, similar to that charged, is admissible when it tends to- establish a common scheme or plan, embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, or when it shows or tends to show guilty knowledge or intent in the commission of the offense.

“When the state offers to prove other alleged offenses for the purpose of showing a common scheme, plan or intent, the proof must clearly come within the exception to the general rule; and where they are distinct and unrelated offenses, or remote as to time, an objection by the defendant, to- the proof sho-uid be sustained.”

See also Miller v. State, 13 Okla. Cr. 176, 163 P. 131, L.R.A 1917D, 383; State v. Rule, 11 Okla. Cr. 237, 144 P. 897; Boyer v. State, 68 Okla. Cr. 220, 97 P. 2d 779; Perdue v. State, 40 Okla. Cr. 9, 266 P. 514; Ricker v. State, 39 Okla. Cr. 58, 263 P. 160;, Stanfield v. State, 30 Okla. Cr. 82, 235 P. 256.

We have been furnished with no authority which says that distinct and unrelated crimes may be admitted in evidence for the purpose of, as stated by the trial court, “shedding light upon the question of the guilt or innocence of the defendant.” In none of the instances where the court admitted evidence of other offenses allegedly committed by the defendant were they connected with the offense allegedly committed herein. Some o-f the articles stolen in the burglary for which the defendant was charged were recovered at the store of his brother, Lee Herren, in Carter county, several months after the burglary was committed. One witness testified that she saw the defendant Earl Herren unloading some merchandise at Lee Herren’s store in the fall. This was four months after the burglary charged herein. She saw the defendant on this occasion, which was two or three days after the burglary of the Holmes store in Pontotoc county, and it was on the basis of that testimony that a conviction of Earl Herren was sustained in one of the Herren Cases hereinabove cited, as part of the loot taken in the Holmes burglary was identified at the Lee Herren store.

There would have been some basis for the admission of these other burglaries if they had all happened the same night, or about the same time, in order to show a series of crimes committed as a part of a continuous scheme or plan, but none of these other alleged offenses were committed within four months of the Lacy burglary involved herein. They are distinct and unrelated offenses, even though of the same kind, and evidence as to the same should not have been admitted.

One of the officers who testified stated that he was at Lee Herren’s store when many merchants came and there identified certain articles in the store as having been taken from their places of business. There was no attempt to connect this defendant with many of the alleged thefts. This officer testified over objection of defendant that he was present when store owners from Ma-dill and many other places came there and “located and identified their stuff.”

In the first place, this testimony of the sheriff was inadmissible because it was hearsay. The state cannot bolster its case by having persons present when a party sees certain goods which he claims were stolen from him and having him there state in the presence of the other parties that those are the stolen goods for the purpose of making witnesses of the parties who- heard the statement. In the second place, this testimony was inadmissible for tbe reason that no. connection with the defendant was shown.

For the reasons hereinabove stated, the judgment of the district court of Murray county is reversed and remanded, with instructions to grant the defendant a new; trial and for further proceedings in conformity with the views herein expressed.

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


text:
    Ex parte JAMES SHOCKLEY.
    No. A-10285.
    Oct. 21, 1942.
    (130 P. 2d 331.)
    James Shockley, in pro-, per.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   JONES, J.

This is an original proceeding in habeas corpus by James Shockley to secure his release from the State Penitentiary at McAlester, where he was committed from Lincoln county to serve a term of 12 years for the crime of attempt to kill, a second offense.

In the verified petition filed herein the petitioner alleges a large number of conclusions of law, but his petition does not allege any facts upon which a writ of habeas corpus may be granted where one is committed to the ¡State Penitentiary pursuant to a commitment from a district court of this state.

It is evident from an examination of the petition that it was prepared by some person at the state penal institution who was not an attorney, and that he has, at some time, read of opinions in habeas corpus matters by this court or some other tribunal and has incorporated in his petition all of the general allegations and conclusions of law which he could remember.

This court, in a desire to be perfectly fair in the treatment of those who are incarcerated in the penitentiary, has given consideration to every petition filed with us, whether it is prepared by the inmate himself or by an attorney selected by him. However, it would be much better, wherever possible, for the petitioner to employ legal counsel to assist him in preparing his petition so that the issues could be well defined.

In this case a response has been filed, and attached thereto is a complete transcript of the proceedings had in the case wherein the petitioner entered his plea of guilty and for which he now stands committed to the penitentiary. This response shows that the petitioner had previously served three penitentiary sentences and was thoroughly familiar with his rights in connection with court procedure. It further shows that at all times from the time of the petitioner’s first arraignment before the justice of the peace on the 22nd of June, 1940, until his plea of guilty was entered on November 15, 1940, he had the benefit and advice of counsel. When he was first arraigned in the district court, after being bound over for trial from the justice of the peace court, the petitioner entered his plea of not guilty. Later, after the case had been set for trial on November 15, 1940, the petitioner appeared with his attorney and withdrew his plea of not gnilty and entered his plea of guilty, and was, by the court, sentenced to serve 12 years in the State Penitentiary. The proceedings appear to be regular in every respect.

Because of the confused statements set forth in the petition filed herein, this court is unable to determine on just what particular grounds the petitioner thinks he should be entitled to release, but we have given the record careful attention and there is nothing that appears therein which is irregular, and certainly nothing that is of sufficient importance that this court could say that the judgment which was rendered upon petitioner’s plea of guilty was void.

For the reasons above stated, the writ of habeas corpus is denied.

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


author: BAREFOOT, P. J.

text:
    ELWIN BLAIR v. STATE.
    No. A-10050.
    Oct. 28, 1942.
    (130 P. 2d 545.)

      Jesse A. Harp, of Miami, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   BAREFOOT, P. J.

Defendant, Elwin Blair, was charged in the county court of Ottawa county with the crime of unlawful transportation of intoxicating liquor, to wit, 360 pints and 72 half pints of whisky and gin; was tried before the court, without a jury, was convicted and sentenced to pay a fine of $250 and to serve 30 days in jail, and has appealed.

The only error relied upon for a reversal of this case is that the court erred in refusing to sustain the motion of defendant to- suppress the evidence of the state for the reason that the search of defendant’s automobile was illegal for the reason that the officer did not have a search warrant at the time the search was made.

The evidence reveals that D. T. Waters, the sheriff of Ottawa county, was, on the 28th day of August, 1940, standing on the street corner of the town of Peoria. He observed an automobile driving at a high rate of speed on the streets and saw it turn south at the main corner. It was being driven at a high rate of speed and it caused the sheriff to immediately start in pursuit. He followed the automobile for a distance of eight miles and during this time the sheriff testifies that the defendant was traveling at the rate of 75 miles per hour; that he finally forced him to the side of the road by blowing his siren; that he immediately placed the defendant under arrest for the crime of reckless driving. The sheriff left his own car at the place of arrest and took defendant in his. car to the county seat. He did not search defendant’s car until he arrived there but he saw the intoxicating liquor, wrapped in paper packages, therein, at the time he arrested defendant and opened the door of his car. The sheriff’s testimony was:

“Q. Mr. Sheriff, after you opened the door of this automobile, then you saw these packages? A. Yes, after I arrested the man. * * * Q. You say you arrested him for speeding before you searched the car? A. Yes, sir.”

The evidence reveals that a charge was not filed against the defendant for reckless driving but the charge was filed for illegal transportation of intoxicating liquor. As has often been expressed by this court, we think it would have been proper, and the best practice, for the county attorney to have filed a complaint against the defendant for reckless driving and prosecuted this charge to a conclusion. We have held that if the arrest of a person is a subterfuge, made only for the purpose of searching his person or his property, the search is illegal. But the facts in this case do not reveal that the arrest of defendant was a subterfuge. The testimony of the sheriff clearly shows, and it is uncontradicted, that the defendant was driving in a reckless and careless manner in his presence. Under the law he had a right to arrest defendant, and when lawfully arrested he had the right to search his person and property in his immediate presence. If by this search it was revealed that defendant had violated the law by unlawfully transporting intoxicating liquor, it would be the duty of the officer to file charges for that violation also. In the instant case it was revealed by the search, after defendant’s lawful arrest, that he was illegally conveying 360 pints and 72 half pints of whisky and gin. Barfield v. State, 68 Okla. Cr. 455, 99 P. 2d 544; Matthews v. State, 67 Okla. Cr. 203, 93 P. 2d 549; Keith v. State, 30 Okla. Cr. 168, 235 P. 631; Franklin v. State, 71 Okla. Cr. 115, 109 P. 2d 239; Nott v. State, 70 Okla. Cr. 432, 107 P. 2d 366.

Under the facts above stated, the court did not err in overruling the motion of defendant to suppress the evidence offered by the state.

At the trial of the case before the court, without a jury, the evidence was the same as on the motion to suppress, only more elaborate.

Finding no error in the record, the judgment of the county court of Ottawa county is affirmed.

JONES, J., concurs. DOYLE, J., dissents.


text:
    LEONARD HOPKINS v. STATE.
    No. A-10023.
    Oct. 28, 1942.
    (130 P. 2d 543.)

      Carl Hogge and Eobt. E. Eittenhouse, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen. and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Leonard Hopkins, was charged in the court of common pleas of Oklahoma county with the unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve 30 days in the county jail, pay a fine of $50 and costs, and has appealed.

The sole contention of defendant is that the evidence is insufficient to sustain the verdict.

The evidence showed that officers Kolb and Smith searched an empty automobile at the 1100 block on North Eldridge avenue, Oklahoma City, on September 13, 1940, and seized 390 pints of tax-paid whisky. Without objection on the part of defendant’s counsel, the officers were allowed to testify that the lady at the premises where the car was found told them that it belonged to the defendant, Leonard Hopkins. On the Monday following the seizure of the liquor on Saturday, the defendant appeared at the sheriff’s office inquiring about his automobile. At that time, in a conversation with the officers and the county attorney, he told them that the automobile was his, and that the whisky belonged to him; that he was carrying the title in the name of L. W. Fisher, but that the car1 was in fact the defendant’s.

No motion to suppress the evidence was filed and no question was raised concerning the admissibility of the evidence in any manner, but the defendant relies solely upon his proposition that he should not be eonvicted on Ms extrajudicial confession without other facts which would tend to show that defendant was guilty of the crime charged.

A similar state of facts was before this court for •consideration in the case of Gorum v. State, 60 Okla. Cr. 248, 63 P. 2d 765. In that case the officers searched a house and found 1,050 pints of whisky. The house was unoccupied. A day or two later the defendant came to the officers and asked for his whisky and accused the officers of being four or five cases short on what they had taken in the raid. It was there contended that there was not sufficient proof of the corpus delicti and the conviction should not be sustained upon the extrajudicial statement of defendant. This court affirmed the conviction in an opinion by Judge Doyle. The syllabus of that case provides:

“In every criminal prosecution it devolves upon the state to1 prove, first, the corpus delicti; second, that the crime charged was committed by the accused.

“The ‘corpus delicti’ means, when applied to any particular offense, the actual commission by some one of the particular offense charged.

“The corpus delicti may be established without showing that the offense charged was committed by the accused.

“An extrajudicial confession of the defendant is not sufficient to warrant his conviction without additional proof that the crime charged has been committed. There must be, in addition to the confession, proof of the corpus delicti, and, where the corpus delicti is established by independent evidence, a conviction based upon the defendant’s voluntary confession is warranted.”

The defendant herein did not testify but relied solely upon his motion for an instructed verdict of not guilty. The law, as stated in Gorum v. State, supra, has never been criticized or overruled by this court and governs in the disposition of this case.

For the reasons hereinabove given, the judgment of the court of common pleas of Oklahoma county is hereby affirmed.

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


text:
    H. D. LITTLE v. STATE.
    No. A-10082.
    Nov. 12, 1942.
    (130 P. 2d 1011.)
    Robert R. Rittenhouse, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, H. D. Little, was charged by information filed in the court of common pleas of Oklahoma county with the unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve 30 days in the county jail, pay a fine of $50 and costs, and has appealed.

The only assignment of error presented by defendant is that the court erred in overruling the motion to suppress the evidence.

At the hearing on the motion to suppress, L. A. Kolb, a policeman of Oklahoma City, who swore to the affidavit for the search warrant, and the defendant were the only witnesses. The affidavit and the search warrant were introduced in evidence. The affidavit is positive in its terms and the search warrant is regular on its face and sufficient authority for conducting the search.

There is no contention made by defendant that the (affidavit and search warrant, or either of them, is insufficient on its face, but it is urged that the search was illegal for the reason that the affiant Kolb testified he swore to the affidavit after being called by another policeman and given the information concerning the whisky which was stored at defendant’s premises, and that therefore the affidavit was based solely on information and belief and hearsay; and even though it is positive in its/ terms, the court should have excluded the evidence obtained thereby.

The proof showed that two1 officers were driving up a street in Oklahoma City and passed an open garage at defendant’s premises. Inside the open garage they saw a person who was known to them as a bootlegger placing packages in an automobile which resembled packages of whisky. They drove to the corner and called Officer Kolb, transmitted the information to him concerning what they had seen, and Kolb in turn executed the affidavit and procured the search warrant, came to defendant’s premises, searched the garage and found 1,086 pints of whisky. The defendant was present when the search was made and stated the whisky was his.

It is the rule in this state that if the affidavit and search warrant are sufficient on their face, the evidence obtained by the search is admissible, and the court will not permit the accused to show that the statements in the affidavit are not true, or to raise any question as to the accuracy or source of the affiant’s information, or the means by which it was obtained. Phillips v. State, 34 Okla. Cr. 52, 244 P. 451; Blair v. State, 55 Okla. Cr. 280, 29 P. 2d 998. Since the affidavit and search warrant are sufficient on their face in this case, the trial court properly ruled that the evidence obtained by reason of said search was admissible.

The defendant should be pleased that the trial court who heard the evidence without the inteiwention of a jury only assessed the minimum, punishment. There appears no justification in the record for meting out so light a penalty in view of the fact that the defendant had been formerly convicted of a similar offense and of the further fact that he was in possessioin of an enormous amount of intoxicating liquor for an illegal purpose.

The judgment of the court of common pleas of Oklahoma county is affirmed.

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


author: DOYLE, J.

text:
    EDGAR WISELEY v. STATE.
    No. A-10200.
    Nov. 12, 1942.
    (130 P. 2d 851.)
    S. R. Harper, of Lawton, for plaintiff in error.
    ■Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that in Comanche county on the 25th day of January, 1941, Edgar Wiseley did then and there willfully and unlawfully have in his possession 19 pints of whisky and 14 half pints of whisky, with the unlawful intent on the part of him to> sell the same.

The record shows that when the case was called for trial, the defendant waived his right to a jury trial, and it was agreed by and between the parties to try the case to the court. The trial resulted in a conviction. Motion for new trial was duly filed, presented, and overruled. On September 15, 1941, the court pronounced judgment and sentenced the defendant to serve 60 days in the county jail and to pay a fine of $100 and costs.

From the judgment the defendant appealed by filing in this court on December 15, 1941, a petition in error with case-made.

No brief has been filed and no appearance made in behalf of plaintiff in error in this court. When the case was called for final submission, July 17, 1942, it was submitted on the record.

This court has repeatedly held in numerous decisions that where a defendant appeals from a judgment of conviction and no brief in support of the petition in error is submitted, and no appearance for oral argument made, we do not consider it the duty of this court to go into a careful examination of the evidence to> determine whether or not the trial court erred in the admission or rejection of testimony. This court will examine the record proper for jurisdictional errors. If no fundamental error appears, and the evidence is sufficient to sustain the conviction, the judgment will be affirmed.

We have examined the record and find that the information is sufficient to' charge the offense of illegal possession of intoxicating liquor, and the evidence is amply sufficient to sustain the judgment and sentence, and no testimony was given by the defendant, or by any witness in his behalf. Both parties rested at the close of the case for the state. On the record before us, we have discovered no error which would warrant a reversal of the judgment. The judgment of the county court of Comanche county is accordingly affirmed.

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


text:
    CHARLES DUNBAR v. STATE.
    No. A-10076.
    Nov. 12, 1942.
    (131 P. 2d 116.)

      A. Lee Battenfield, of Pryor, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

Appellant was tried on an information which, omitting; formal parts, charged that Charles Dunbar did in Mayes county, on or about the 15th day of May, 1940, commit the crime of assault with intent to kill in manner as follows:

That on the day aforesaid, he did unlawfully, willfully, intentionally and feloniously, make an assanlt upon one Floyd M. Henry, with a certain weapon, to wit, a Winchester, which he then and there had and held in his hands, that he did then and there go to his automobile and take therefrom said Winchester, and did then and there load said Winchester by putting in the chamber of said Winchester shells or leaden bullets, and did then and there brandish said Winchester, bringing it up in position to shoot, did point said Winchester at and towards the said Floyd M. Henry, who at said time did run and escape into and through a certain garage nearby to the M., K. & T. Depot, nearby; that said Charles Dnnbar followed and pursued said Floyd M. Henry with said Winchester with the unlawful and felonious intent, then and there on the part of him the said Charles Dunbar, to kill him the said Floyd M. Henry, contrary to, etc.

December 10, 1940, the jury rendered the following verdict :

“We the jury duly drawn, impaneled and sworn in the above entitled cause do upon onr oaths find the defendant guilty of ‘assault with a dangerous weapon’ as charged in the Information and assess his punishment at imprisonment in the State Penitentiary for a period of 1 year.”

December 16th, defendant filed motion for new trial.

On January 29,1941, said motion coming on regularly for hearing, at the close of the arguments the court overruled the motion and pronounced judgment as follows:

“The Court: Mr. Dunbar, you were heretofore tried in this case, and the jury by their verdict found you guilty as charged in the information, found you guilty and fixed the punishment at one year. Do' you have anything to say other than what your attorney has stated in your behalf why the court should not pronounce sentence at this time? The Defendant: No, sir. The Court: Under the jury’s verdict, it becomes my duty to sentence you to a term of one year in the State Penitentiary at McAlester, Okla,., at hard labor. Mr. Battenfield: To which judgment and sentence of the court, the defendant excepts. The Court: Let the record show that the defendant gives notice of his intention to- appeal to the Criminal Court of Appeals of the State of Oklahoma and in the presence of the county attorney, the court clerk and the court, and for good cause shown the defendant is given 60 days in which to' make and serve a case-made, the state is allowed ten days thereafter in which to present amendments, and five days time in which to serve and file the case-made and the court will fix the appeal bond at $1,000.”

Briefly stated, the record discloses the following facts: That on the date alleged, complaining, witness Henry was living with his wife and six children of tender years on a rented farm, about four miles northwest of Mazie. The defendant, Charles Dunbar, a married man, with his wife and son, was living on what is called the old Kennedy Ranch, and he was foreman of what is known as the Dunbar Ranch, owned by defendant’s brother, Ralph Dunbar, Sr., and his son Ralph, Jr. Henry left his home that forenoon, went to Mazie, and from there drove on to> Pryor, and returned to Mazie about 3 o’clock that afternoon, parked his car, went in to the Neal Brother’s Garage. Partitioned from the garage is their country store, and behind the service station is their repair shop.

The complaining witness, Henry, testified:

“O. L. Hutchins, Dwight Neal and Charles Dunbar were in the building, I spoke to Mr. Hutchins, and as X went out I asked Mr. Dunbar, the defendant, when Ralph Dunbar would be up, Ralph Dunbar1 was defendant brother’s son, Ralph Dunbar, Sr., and Ralph, Jr., were running cows on what was known as the Kennedy land down there, Dunbar said he didn’t know, then says: ‘Oh, by the way, are you going to bring that wire home you got?’ He says, furthermore, ‘I don’t believe you had a bit of right to get that wire,’ I says, ‘Ralph, Jr., gave me permission when I got the wire,’ then he cussed me and said that Ralph, Jr., did not tell me to get the wire, I told him that he did. He brought up different things in profane language and accused me of stealing the wire that I had gotten from Ralph, Jr., he called me a damn liar, again and again. He called me everything but a gentleman. I said ‘Come and go> with me, I will prove it to you;’ his car was right in front of the garage. He walked to his car and took a Winchester rifle from the car, and was loading it with shells out of a paper box, as I came up, he slipped a shell into the magazine, I was still facing him and he jerked down the lever, and when he pulled the lever back that way it cocked the gun, he was cussing me all the time, and just as he got the gun straight up from his hip to his shoulder I ran in through the garage, into the grocery department and turned to the right, as I started to run he said, ‘Stop, you dirty son-of-a-bitch, or I will shoot you.’ I didn’t stop, but went on through the door into1 the grocery department and into the back room where the mechanics worked, I stooped down so he could not shoot me going! through there, as I went around the east end of the building he was at the northwest corner of the garage, I looked over my shoulder as he went around the comer of the icebox, with his rifle all the time aimed at me. I ducked down and ran around the corner of the Mayo house, out through the hack lot, over the fence and over to the Katy depot and stayed there until I saw defendant drive away, then I went back to the store and got my car, I was not armed in any way.”

Dwight Neal testified that he was at his place of business when the trouble occurred between these two men, that he saw Henry come back into the garage, and he was running, “moving right along,” that he looked out and saw Dunbar standing by his car with a gun in his hands, hut he could not understand what he was: saying.

Dale Neal testified that he was not present “at the time the gun play was put into effect, but he saw Henry make his ran through and around back of the garage, shortly afterwards he picked up- a Winchester shell out there.”

O. L. Hutchins testified that he was present when there was some difficulty between Dunbar and Henry, at the Neal store that day, and heard them talking about a wire fence or some wire, and they both went out of the garage.

He further testified as follows:

“Q. What was Dunbar doing with the gun at that time, at the time Henry was going to the back? A. He was going to the door as Henry went to the hack. Q. How was he holding the gun? A. Holding the gun like this. (Indicating.) Q. Tell the jury whether or not the gun was pointed in the direction of Mr. Henry? A. Yes, sir, pointed that way when Henry went back. Q. Did you see Mr. Dunbar after Henry made his escape? A. Yes, sir. Q. What did he do? A. Well, he went to one end of the garage and then the other. Q. What part of the building would that be? A. He went to the southwest comer and back to the northwest.”

W. F. Nuckols testified that he is postmaster at Mazie, that with Mr. McNabb he was standing across the street from Neal Bros. Garage, and heard some loud talking over there across the street and saw the difficulty between these two men.

He further testified as follows:

“Q. Coming out of the garage. Didn’t you observe either one of them continuing to walk after they got outside of the garage? A. Yes, sir. Q. Which one? A. Mr. Dunbar. Q. Tell the jury, please, sir, and the court, what you saw him do? A. I saw him go around there to the comer of his car, and I thought he was going to get in the car until he pulled out the gun. Q. Which door did he open? A. The back door on the west side. Q. And did he take anything out of the car? A. Just the gun, that’s all I seen. Q. Uh, huh. What did he do with the gun? A. Well, he acted like he was- loading it; I guess that was what he was doing. Q. Then after that tell the jury what he did. A. Well, he started talking to' Floyd. Q. What position was he holding the gun in? A. He was raising it up. Q. Was the barrel pointing toward anybody, or anything? A. Yes, pointed out towards Floyd. Q. Towards Floyd Henry, the prosecuting witness in this case? A. Yes, sir. Q. What did Henry do, Mr. Nuckols? A. He taken out and left. Q. Do you know where he went? A. Yes, he went out of the door and around the building and across over to the depot.”

Witness George McNabb’s testimony was substantially the same as that of the witness Nuckols.

When the state rested, counsel for the defendant announced that he wished to present a motion, the jury was excused and counsel “moved the court to advise the jury to return a verdict of not guilty, for the reason that the evidence adduced on the part of the state is insufficient to warrant a conviction under any theory that the state might adopt or elect to prosecute this defendant; first, on an attempt to hill; second, felonious assault, and third, pointing a gun, and the defendant at this time also renews his demurrer to the information along with defendant’s objection tO' the introduction of any evidence upon the insufficiency of the information charging the crime of assault with intent to kill.” At the conclusion of the argument the court announced: “I will overrule your motion.” Defendant excepts.

Charles Dunbar, as a witness in his own behalf, testified :

“I was living a mile and a half west and a mile south of Mazie, on that part of the Dunbar ranch known as the Old Kennedy Ranch, I was foreman of the Dunbar ranch. It is about three-quarters of a mile from the north line of the ranch to Floyd Henry’s house, I judge he had been living there about seven years. In the afternoon, about 2 or 3 o’clock I was at Neal’s filling station, in Mazie, I parked my Chevrolet sedan near the south pump, about 20 feet from the door of the garage, went inside to- pay Neal a bill I owed, I was there about 30 minutes talking to the Neal boys when Floyd Henry came in, I started out and was nearly to' the door when Henry asked me where Ralph would be at, I told him I had seen him that day, and I said, ‘By the way, Ralph said he told you to bring that wire back’, and he says, ‘All right, where do you want me to' bring it, down where you live or at the ranch?’ I said, ‘To the ranch, where you got it.’ The conversation was back and forth, both of us got pretty mad, each was using about as many cuss words as the other. As I went out he followed, and stood in the driveway, I went on to my car, we were talking, and the last thing he said was, I had accused him of stealing things at the ranch, then he said, ‘You God-damn-son-of-a-bitch, I don’t know whether I will ever bring that wire back or not.’ I opened the car door and got the gun. He said, ‘What do' you say?’ two or three times, I loaded the gun, as the man testified, I got the shells in there, I walked back to the head of the car, and Mr. Henry turned and ran back through the building and went out back. I walked back to the southeast corner of the building and didn’t see him and I walked back to the north line and looked around that way, where he started across the yard as he testified, I saw him there and he just ducked back, I did not see him any more. I turned and went back to the car, I got the Winchester out because I thought he was going to beat me up, or that he had a gun himself. Self-defense is the only reason I got it out of the car. I took the gun out and loaded it at the side of the car and walked to the front of the car. I had the gun in about the ordinary position, just like if you were going to shoot a bird, or something, and I never did raise it any higher than that. I did not make any attempt to shoot him.”

He further testified as follows:

“Q. Now, you heard what Mr. Nuckols testified regarding you telling him to go back in the garage. A. Yes, sir. Q. 'State what was said there? A. When I went around the front of the car and Henry run I walked back to the west side of the car, as I turned around, and walked back, Mr. Nuckols was standing there and I said, thinking all the time Henry was still in there, I says, ‘You gentlemen better get back inside, you might get hurt.’ and they got back inside. Q. What kind of guns were in the station? A. A little old 22 pistol lying on the counter, and there was a 22 on the wall on the north end of the station. Q. Now, the witnesses have testified that you went on down north on the road about 100 yards, and then you stopped your car, is that true or not? A. That is true, I had started out to Grimmet Howsley’s. Q. What did you stop your car for? A. Because I thought he was going to follow me, that was what I was looking for.”

Balph Dunbar, Jr., testified that his age was 25 years, was married, and that defendant is his uncle; that he looked after the Dunbar ranch when his father was not around there; that they had one pasture across the section line towards where Floyd Henry lives; that he had a conversation with Henry last winter. He further testified:

“Q. Did you sell him any hog wire? A. Yes, sir. Q. Did he ask permission to borrow any wire from you? A. Not that I know of.”

On cross-examination he stated:

“There was a roll of wire setting by the gate on the ranch, Henry asked to buy it, and I told him I could not sell it to him without seeing my dad,” but that he did not remember when and where it was that Henry spoke to him about buying the wire.

The first assignment is: That the court erred in overruling the defendant’s demurrer and other objections to the sufficiency of the information.

The grounds of the defendant’s demurrer are: “That the said information does not contain sufficient facts to charge him with the crime of assault with intent to kill, or any other public offense.” Overruled. Exceptions.

When the first state witness was called, the defendant objected to the introduction of any evidence “for the reason that the information herein is insufficient and does not charge a public offense.” Overruled. Exception.

The sufficiency of the information was again challenged by motion in arrest of judgment.

The information is based on the first part of Penal Code, section 652, 21 O. S. 1941, providing as follows :

“Every person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another with any kind of firearm, airgun or other means whatever, with intent to kill any person * * * is, punishable by imprisonment in the penitentiary not exceeding ten years. B. L. 1910, § 2336.”

Our Code of Criminal Procedure provides, sec. 916, 22 O. S. 1941:

“The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.” R. L. 1910, sec. 5923.

The instructions given by the court submitted the issue of assault with intent to kill as above defined, and submitted the included offense as defined by Penal Code, sec. 645, 21 O. S. 1941, providing as follows:

“Every person who, with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or air gun or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in the county jail not exceeding one year.” R. L. 1910, sec. 2344.

Also, submitted the issue of simple assault as defined by section 641, 21 O. S. 1941, which provides:

“An assault is any willful and unlawful attempt or offer with force or violence to do a corporal hurt to another.” R. L. 1910, sec. 2340.

While there is some repetition and some surplusage in the information, it charges all the essential elements of the crime of assault with intent to kill, by attempting to shoot at another, and sufficiently alleges the attempt to shoot another.

An attempt to commit a crime consists of the following elements: First, the intent to commit the crime; second, the performance of some act toward its commission, commonly called the commission of some overt act; third, the failure to complete or consummate the crime. 22 C. J. S., Criminal Law, § 75.

Otherwise stated, the intent and the overt act combined must fall short of the completed crime, in order to be an attempted crime.

It is also well settled that the overt act must be something more than mere preparation or planning the crime. It must be something done, some step taken beyond preparation, that directly moves toward the crime and brings the accused nearer to its commission than mere acts of preparation or of planning. It must be such act or acts as will apparently result, in the usual and natural course of events, if not hindered by extraneous causes, in the commission of the crime itself. State v. Thomason, 23 Okla. Cr. 104, 212 P. 1026; Becker v. State, 45 Okla. Cr. 350, 283 P. 796. By section 409, 22 O. S. 1941, sixth subdivision, Code of Criminal Procedure, the information is sufficient if it can be understood therefrom:

“That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.”

In our opinion the allegations of the information are in compliance with the general principles above stated, and come within the requirements of the foregoing provision of our Code of Cr. Proc.

When the character of the firearm is designated, the manner of using it, and the person against whom the overt acts of assault and the attempt are directed, are alleged in plain English language, the acts charged as the offense are sufficiently pleaded, and the law requires no more.

The second assignment argued is: The court erred in not giving the jury an instruction on the offense of pointing a gun, as defined by chapter 53, sec. 1279, 21 O. S. 1941.

It appears no- request for instructions was made on the part of the defense, and that no such error is set forth in the motion for new trial. The record shows that this question is attempted to- be raised for the first time in this court, and for this reason counsel for appellant has not properly raised the question.

Only prejudicial errors raised by exceptions reserved require a new trial, and it is only where we are satisfied that the verdict is contrary to- law, or to the evidence, or that injustice has been done, that we are permitted to- reverse a conviction whether or not an exception has been taken in the trial court.

The Code of Criminal Procedure provides the method of procedure for requesting instructions, and a defendant may submit to the court written instructions with the request that they be given, and how objections and exceptions shall be preserved. 22 O. S. 1941, §§ 831, 856.

It has been repeatedly held by this court that it is the duty of counsel for defendant, where he is of the opinion that additional instructions should be given, to reduce them to writing, and request that they be given. If he fails to do so, a conviction will not be reversed, unless the court is of the opinion, in the light of the entire record and instructions of the court, that there was a failure to- instruct upon some material question of law, and that the defendant has been deprived of a substantial right. Green v. State, 70 Okla. Cr. 228, 105 P. 2d 795; Lee v. State, 67 Okla. Cr. 283, 94 P. 2d 5; Adams v. State, 62 Okla. Cr. 167, 70 P. 2d 821; Pulliam v. State, 61 Okla. Cr. 18, 65 P. 2d 426; Russell v. State, 17 Okla. Cr. 164, 194 P. 242; Williams v. State, 12 Okla. Cr. 39, 151 P. 900.

In the defendant’s brief it is said:

“This court has repeatedly held that it is the mandatory duty of the trial court to give instructions submitting every included offense.” Citing cases.

We have examined the cases cited and we fail to find that the offense of pointing a gun was ever held to be an included offense of a felonious assault.

The next assignment is that the court erred in giving instructions from 5 to 18, inclusive, which were excepted to.

It has been repeatedly held by this court that, where the instructions as a whole fairly cover the law of the case, and are not misleading, although some instructions may be inartificially drawn, the general charge will be held sufficiently comprehensive. We find the instructions given by the court, considered as a whole, fully and fairly cover the law of the case, and the instructions submitting the law of self-defense were more favorable to the defendant than the evidence demanded. It follows that the exceptions t alien were wholly without merit.

It is also contended that the verdict rendered is too indefinite and uncertain, and for this reason the trial court was without jurisdiction to sentence the defendant to imprisonment in the penitentiary for one year on the verdict as rendered.

It appears no objection was made to the reception of the verdict. Nor do we find from the record that this question was ever raised in the trial court.

When considered in connection with the offense charged in the information, the instructions given by the court, and the punishment assessed, it is sufficiently definite and certain as to the offense of which the defendant was convicted.

This court has repeatedly said in numerous decisions that a verdict will not be held void for uncertainty if its meaning can be determined by reference to the record proper. Bowlegs v. State, 9 Okla. Cr. 69, 130 P. 824; Walker v. State, 11 Okla. Cr. 339, 127 P. 895; Simmons v. State, 15 Okla. Cr. 442, 177 P. 626; Coleman v. State, 16 Okla. Cr. 579, 194 P. 282; Pruitt v. State, 17 Okla. Cr. 434, 190 P. 894; Bard v. State, 23 Okla. Cr. 309, 214 P. 939; Gidens v. State, 31 Okla. Cr. 137, 236 P. 912; Nelson v. State, 34 Okla. Cr. 187, 245 P. 1009; Horton v. State, 44 Okla. Cr. 318, 280 P. 857; Bayne v. State, 72 Okla. Cr. 52, 112 P. 2d 1113.

The only defense interposed to> justify the felonious assault was self-defense and the instructions covering the law of self-defense were more favorable to the defendant than the evidence demanded.

The instructions, considered as a whole, were full, fair and correct and covered all questions of law involved in the case. No others were requested by counsel who so ably represented the defendant.

It follows that the instructions of the court are not open to the objections urged against them.

Finally, it is insisted that the verdict is not sustained by the evidence.

Upon this question, it appears to us that the evidence on the part of the state, supplemented by the testimony of the defendant, is sufficient to sustain the verdict and judgment of conviction. Upon the defendant’s own testimony he was not warranted in arming himself with a loaded Winchester firearm, and his conduct in making, a felonious assault upon the complaining witness cannot be justified without doing violence to those well-settled rules and statutes which point the duty to one engaged in a difficulty to use only such force as reasonably appears to be necessary to prevent injury to himself at the time. Before one can justify a felonious assault with a deadly weapon, with intent to kill any person, or with intent to injure another, although without intent to kill such person, he must at least show that there were reasonable grounds for believing he apprehended imminent danger. It is elementary that one who seeks and brings on an affray cannot shield himself under a plea of self-defense.

The only controverted question of fact under the evidence was whether the defendant’s intent was assault with intent to kill or assault with intent to inflict bodily injury, without intent to kill.

The complaining witness, the father of six children, the oldest not yet of teen age and a neighbor of the defendant, yet it would seem that the defendant was willing to engage in mutual mortal combat with his neighbor in a dispute over a spool of wire. The defendant admitted that after the complaining witness had run away from him, he got in his car, and instead of going south toward his home, went to the north edge of town, stopped his car on the highway, knowing that he would be likely to again come in contact with the complaining witness. In fact, it appears the defendant made no effort to avoid what he himself testified might be a deadly encounter.

How appropriate the words of Solomon: “A fool’s mouth is his destruction, and his lips are the ruin of his soul.” Prov. 18:7.

Carefully considering the whole testimony, we feel constrained to say that there is not a single extenuating feature in this case. On the contrary, the defendant’s entire conduct, from the beginning to the end, shows “a heart regardless of social duty and fatally bent on mischief.”'

Upon consideration of the entire record, we are clearly of the opinion that no error was committed by the trial court prejudicial to the substantial rights of the defendant.

In our view the verdict of the jury in assessing the punishment of the defendant at imprisonment for one year in the penitentiary is, upon the undisputed facts and circumstances as shown by the evidence, exceedingly lenient.

Upon the whole case it appears that the defendant had a fair trial, and that the ends of justice, under the law, were no more than satisfied by the judgment of conviction appealed from.

The judgment of the district court of Mayes county herein is accordingly affirmed.

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


text:
    L. D. HOUSE v. STATE.
    No. A-10085.
    Nov. 12, 1942.
    (131 P. 2d 124.)

      Phil K. Oldham, of Muskogee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Douglas Garrett, Co. Atty., of Muskogee, for defendant in error.
   BAREFOOT, P. J.

Defendant, L. D. House, was charged in the county court of Muskogee county with the crime of unlawful possession of intoxicating liquor, to wit: 1,717 one-half pints, 1,109 pints, and 51 quarts of intoxicating whisky; was tried, convicted and sentenced to pay a fine of $200 and to serve 30 days in jail, and has appealed.

Defendant presents two propositions upon which it is contended this judgment should be reversed:

(1) That defendant was never arraigned upon the charge lodged against him; and was, not present in “open court” at the time sentence was pronounced;

(2) That the court erred in refusing to grant the motion of defendant to be permitted to withdraw his' plea of guilty theretofore entered and enter a plea of not guilty.

These assignments of error may be considered together.

A motion was made by defendant to set aside the plea of guilty entered by defendant on the 20th day of March, 1940, and permit the entering of a plea of not guilty. This motion was filed on the 8th day of April, 1941, the day upon which sentence was pronounced. At the hearing upon this motion the evidence of the defendant was taken and the state offered in evidence the record of the minutes of the county court of Muskogee county. The court, after hearing this evidence, overruled the motion of defendant, and from this action this appeal is prosecuted.

Defendant testified that he had never been formally arraigned prior to entering his plea of guilty; that when he entered his plea of guilty it was in the chambers of the county judge, and that the county judge, the county attorney, and himself were the only ones present, and that the county judge did not go in “open court” and pronounce sentence against him. He also1 testified that he did not have an attorney to represent him at that time and that he was not advised of his “rights” by the county judge prior to entering his plea of guilty. There was no evidence offered by defendant on the motion showing that he had a valid defense to the crime charged against him. The record and minutes of the county court of Muskogee county, which were offered in evidence, were as follows:

“Minutes”

“And now on this 3'0th day of September, 1939, in open court in person and by counsel A. M. deGfraffenried, waives arraignment further time to plead and enters a plea of not guilty to the crime of Unlawful possession of1 Intoxicating Liquor. Jury trial demanded and bond fixed in the sum of $500.00.”

“And now on this 4th day of March, 1940, Motion to continue on part of bondsmen, heard and cause taken under advisement by the Court”.

“And now on this 5th day of March, 1940, Motion for forfeiture denied and exceptions allowed, motion to strike from calendar sustained, exceptions allowed, to which plaintiff gives oral notice in open court of their intention to appeal to the Criminal Court of Appeals of the State of Oklahoma, and said notice is so noted on the trial docket of this Court.”

“And now on this 20th day of March, 1941, Defendant in open court in person without counsel, withdraws his plea of not guilty heretofore entered and enters a plea of guilty to the crime of Possession of Liquor. Passed to April 8'th, 1941, at 9:00 A.M. for sentence.”

“And now on this 8th day of April, 1941, Defendant in open court and by attorney Phil K. Oldham, Motion to withdraw former Plea of guilty heard and overruled, exceptions allowed. Defendants motion for new trial is heard and overruled and defendants exceptions allowed. Whereupon defendant is sentenced to serve a term of 80 days in the County Jail of Muskogee County Oklahoma and to pay a fine of $200.00 and costs. Defendant excepts and gives notice in open court of his intention to appeal to the Criminal Court of Appeals of the State of Oklahoma. Said notice is so noted upon the trial docket of this court and for good cause shown defendant is given 40 days within which to make and serve case made, plaintiff given 10 days to suggest amendments thereto same to be settled upon 5 days notice in writing by either party. Defendants appeal bond fixed in the sum of $750.00.”

Prom the record and evidence it is revealed that an information was filed against defendant in the county court of Muskogee county on the 30th day of September, 1939. He was arrested on that date, and on the same date appeared before the court in person and by counsel, giving the name of his counsel; that he waived arraignment and entered a plea of not guilty and demanded a jury trial. Thereafter, and on the 20th day of March, 1941, according to the minutes of the court, defendant appeared in open court in person and without counsel and withdrew his plea of not guilty and entered a plea of guilty and his case was passed for sentence to April 8, 1941. On this date, April 8, 1941, the motion to withdraw the plea of guilty was filed and, on the same date, denied by the court and judgment and sentence was immediately pronounced thereon. The minutes further reveal that on the 4th of March, 1940, a motion for continuance on the part of the bondsmen of defendant was heard and taken under advisement by the court, and on the 5th day of March, 1940, the motion for forfeiture of defendant’s bond was denied and his case was stricken from the docket.

With reference to the question of the refusal to sustain the motion to permit the withdrawal of the plea of guilty, this court has often spoken and the rule has been announced that where a plea of guilty has been entered and a motion has been made to set the same aside and permit the entering of a plea of not guilty, the granting of the motion is within the discretion of the trial court and will not be set aside on appeal unless in the opinion of the court there has been an abuse of discretion. McAtee v. State, 39 Okla. Cr. 10, 262 P. 703; Rudolph v. State, 32 Okla. Cr. 265, 240 P. 761; Cook v. State, 45 Okla. Cr. 69, 281 P. 819; Factor v. State, 49 Okla. Cr. 308, 294 P. 206; Hart v. State, 29 Okla. Cr. 414, 233 P. 1095; Jenkins v. State, 6 Okla. Cr. 516, 120 P. 298; Bennett v. State, 75 Okla. Cr. 42, 128 P. 2d 253; Shiever v. State, 55 Okla. Cr. 342, 30 P. 2d 192.

In the consideration of this motion the court will consider the minutes and record of the court and also the evidence taken at the time the motion is presented. In re Burrell Bradley, 72 Okla. Cr. 107, 113 P. 2d 611; Ex parte Ora Wooldridge, 72 Okla. Cr. 292, 115 P. 2d 284; In re Paul Nye, 75 Okla. Cr. 155, 129 P. 2d 614.

It is provided in Oklahoma Statutes 1931, section 2961, O. S. A. (Stat. 1941), Title 22, § 517, as follows:

“Plea of guilty may be withdrawn.- — The court may, at any time before judgment, upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted.”

The cases above cited have construed this statute. The record reveals that the case here involved was a misdemeanor. Certainly there was no- hasty trial of defendant. He was arrested on the 30th day of September, 1939, and released on bond. He was not sentenced until April 8, 1941. The record discloses by his own evidence that he had had previous experience as an offender of the prohibition laws of this state; that his plea of guilty was voluntary on his part, and after a motion to- forfeit his bond had been made, and that the delay was for the purpose of giving him an opportunity to secure the money to pay his fine. There is nothing in the record which would cause the court to believe -that any injustice had been imposed upon defendant by entering the plea. There is nothing to show that he had any defense to- the charge against him. According to- his own testimony he was only seeking delay that he might have further opportunity to secure the money to pay his fine. This court always has stood for, and now stands for, a liberal construction of the statute above quoted and especially in felony cases. If there is a substantial reason, as shown by -the facts; the court should be liberal in permitting the withdrawal of a plea of guilty and substituting therefor a plea of not guilty, -to the end that defendant may be tried upon the facts by a jury o-f his peers. But at the same time, courts should not be trifled with, and when defendants have entered their pleas of guilty in good faith and they have not been deprived of a substantial right, the discretion of the trial court in refusing to set the same aside should not he reversed.

It is unnecessary to review the many cases heretofore cited. The cases of Heath v. State, 28 Okla. Cr. 382, 214 P. 1091, and Neville v. State, 72 Okla. Cr. 240, 114 P. 2d 961, have reviewed this question and fully state our views therein. In the Neville Case the lower court was reversed for the reason of its failure to sustain the motion to permit the withdrawal of the plea of guilty, but the facts in the instant case are in no1 wise comparable with the facts in that case, as will he seen from a reading thereof.

Many of the ■ statements above made with reference to the plea of guilty apply to the contention that defendant was not arraigned. The minutes of the court state:

“And now on this 30th day of September, 1939, Defendant in open court in person and by counsel A. M. deG-raffenried, waives arraignment further time to plead and enters a plea of not guilty to the Crime of Unlawful Possession of Intoxicating Liquor. Jury trial demanded and bond fixed in the sum of $500.00.”

It is thus shown by the record that defendant appeared in person and by his counsel and waived arraignment and entered his plea of not guilty. It is provided by Oklahoma Statutes 1931, section 2931, O. S. A. (Stat. 1941), Title 22, § 465, as follows:

“Arraignment made, how. — The arraignment must he made by the court, or by the clerk or county attorney, under its direction, and consists in reading the indictment or information to the defendant, and asking him whether he pleads guilty or not guilty thereto”.

The construction of this statute by this court has been most liberal. See the following cases: Spencer v. State, 5 Okla. Cr. 7, 113 P. 224; Fuller v. State, 70 Okla. Cr. 408, 106 P. 2d 832; Hast v. Territory, 5 Okla. Cr. 162, 114 P. 261.

With reference to the statement made that defendant was not in “open court” at the time of entering his plea of guilty, it is directly contrary to the minutes of the court, which were in evidence and have heretofore been quoted. The plea of guilty was voluntary on hisi part and the record shows it was in “open court”. This record and the evidence was for the consideration of the court. Bean v. State, 27 Okla. Cr. 228, 226 P. 115. We have recently had Oklahoma Statutes 1931, § 2960, O. S. A. (Stat. 1941), Title 22, § 516, under consideration in the case of Joe Quick v. State, 75 Okla. Cr. 241, 130 P. 2d 101; but in that case the defendant did not appear in person before the court at the time the plea was entered. This was not the facts in the instant case. Under the decisions above cited and as applied to the facts in this case, it does not appear that the court abused its discretion in refusing to sustain the motion by defendant to withdraw the plea of guilty entered on the 8th day of April, 1941.

The state, on the 16th day of January, 1942, and prior to the time defendant filed a brief in this case, filed a motion to strike the case-made for the reason that the same had not been served on the county attorney within the time prescribed by law and for the further reason that briefs had not been filed within the time prescribed by the rules of the court. With the view heretofore expressed, it is unnecessary to pass upon this question.

The judgment and sentence of the county court of Muskogee county is, therefore, affirmed.

DOYLE and JONES, JJ., concur.