text:
    BUSTER LEE GIBSON v. STATE.
    No. A-10803.
    Oct. 15, 1947.
    Rehearing Denied Nov. 26, 1947.
    (186 P. 2d 667.)

      Owen F. Renegar, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Hugh J. Adams, Co. Atty., of Guthrie, for defendant in error.
   BAREFOOT, P. J.

Defendant, Buster Lee Gibson, was charged in the district court of Logan county with the crime of burglary in the second degree, was tried, convicted and sentenced to serve a term of five years in the State Penitentiary at McAlester, and has appealed.

For reversal of this case, it is contended:

“1. That the trial court erred in permitting this plaintiff in error to be tried on a purported information that did not charge a crime against the laws of the State of Oklahoma.
“2. That the trial court, over the objection of plaintiff in error admitted evidence that was improper' and incompetent, irrelevant and highly prejudicial to this plaintiff in error.
“3. That the verdict and judgment are contrary to law.
“4. That the verdict and judgment are not supported by the evidence and said evidence is insufficient to sustain the allegation of any crime.”

An examination of the record discloses that the defendant did not present a demurrer to the information filed in this case. By a long line of decisions, it has been held that where the information has not been challenged by demurrer or motion to quash, and defendant pleads to the information and goes to trial, any objection to the sufficiency of the information should be overruled if by any intendment, inference or presumption, it can be sustained. Edwards v. State, 5 Okla. Cr. 20, 113 P. 214; Ex parte Spencer, 7 Okla. Cr. 113, 122 P. 557; Brown v. State, 33 Okla. Cr. 217, 242 P. 1065; Chamberlain v. State, 42 Okla. Cr. 410, 276 P. 507; Knight v. State, 48 Okla. Cr. 335, 291 P. 142; Smith v. State, 79 Okla. Cr. 151, 152 P. 2d 279.

Tit. 22, O. S. 1941 § 410 provides:

“No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

In the case of Holleman v. State, 74 Okla. Cr. 258, 125 P. 2d 239, 242, the terms of the information were very similar to those in the instant case, and the court there said:

“This court has long adhered to the rule that in construing an information or indictment, it is not necessary to use the exact words set forth in the statute to define a public offense, but that other words conveying the same meaning may be used. That when 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, the same is sufficient. Bowes v. State, 8 Okla. Cr. 277, 127 P. 883; Price v. State, 9 Okla. Cr. 359, 131 P. 1102; Armour v. State, 72 Okla. Cr. 44, 112 P. 2d 1116; Star v. State, 9 Okla. Cr. 210, 131 P. 542; Stine v. State, 43 Okla. Cr. 76, 277 P. 598.”

This opinion by Judge Jones is based upon the reasoning of Judge Furman in the case of Price v. State [9 Okla. Cr. 359, 131 P. 1104], cited therein, in which it is stated :

“Under the old common-law doctrine of strictly construing criminal law and all proceedings in criminal cases, and that an indictment or information should be certain to a certain intent in every particular, the objection now urged to this information would undoubtedly be good. But these doctrines have long since been repudiated in the State of Oklahoma. It is true that an indictment should be reasonably certain as to the offense charged in order that the defendant may not be surprised and may be able to prepare to make his defense, and also to enable him to plead a judgment of acquittal or conviction in bar to a subsequent prosecution for the same offense. This is all that a defendant is in reason and justice entitled to. If an indictment is couched in such language as to enable a person of common understanding to know what is intended, it is all that the law requires.”

The court further said [74 Okla. Cr. 258, 125 P. 2d 242] :

“As will be hereinafter pointed out in a review of the evidence, the proof of guilt of the defendant was clearly established and no evidence was offered in his behalf. If we were to sustain the objections made by counsel for defendant to this information, we would attach more importance to theories which are merely shadows than to substance and would elevate forms and ceremonies above justice. While we would not recommend the information in this case as a model to be followed by other county attorneys in prosecutions for burglary, we are of the opinion that when measured by the rules of law hereinabove set forth, the court did not err in overruling the demurrer to the information.”

See, also, Clark v. State, 63 Okla. Cr. 138, 73 P. 2d 481.

The information in the instant case did not mention the town of Coyle, where the crime was committed and in which the building entered was located. But, as above stated, no demurrer was filed, and no question was raised with reference thereto at any time during the trial. There was no showing that defendant or his counsel were in any way misled or prejudiced by the description contained in the information. It was stated in the information that the crime was committed “at and within the county of Logan, State of Okla., on or about the 24th day of January, A. D. 1946 * *.” The proof showed it was in the town of Coyle, and the court will take judicial knowledge of the fact that Coyle is located in Logan county.

Under the second assignment of error, it is contended that the court erred in permitting to be read to the jury the transcript of the evidence of Dr. N. L. Cornwell which was taken at the preliminary examination; the reason for such contention being that no proper foundation had been shown for its admission, and no diligence shown to secure the attendance of this witness at the trial.

It is revealed by the record that Dr. Cornwell, whose office was entered, testified at the preliminary examination, and his evidence takén down in shorthand, transcribed and filed in the office of the court clerk of Logan county, in the manner prescribed by law. At the time of the trial Dr. Cornwell was out of the state, having gone to Hamilton, Ind., on account of his health. These facts were established by the evidence. Counsel for defendant at the time of the trial represented him at the preliminary hearing, and had the privilege of cross-examining this witness at the preliminary hearing, and this was a part of the record. The testimony of Dr. Cornwell was with reference to the location and- description of his office, and the fact that someone did break and enter his office on the date charged. He did not testify to any facts as to the defendant being the person who broke into and entered his office.

In the late case of Brown v. State, 81 Okla. Cr. 314, 164 P. 2d 401, 404, the court said:

“If a witness has testified at a former trial, or at a preliminary hearing, and the defendant had an opportunity to cross-examine him, and when the case comes on for trial again it is satisfactorily proven that said witness is dead, or out of the state, or is insane, or that his whereabouts cannot with due diligence be ascertained, or is sick and unable to testify, the testimony of such witness, given upon said former trial, may be proven upon the subsequent trial. And the constitutional provision which guarantees to the defendant the right to be confronted by the witnesses against him, is fully complied with when he has had the right to cross-examine said witnesses at the former trial. * * *
“It is provided by Art. II, § 20, of the Oklahoma Constitution: ‘In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed: * * *. He shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf. * * *»
“And 22 O. S. 1941 § 13, subdiv. 3, is as follows: ‘3. To produce witnesses on his behalf, and to be confronted with the witnesses against him in the presence of the court.’
“This court has on numerous occasions had the construction of the above statute under consideration. In the case of Warren v. State, 6 Okla. Cr. 1, 115 P. 812, 34 L. R. A., N. S., 1121, Judge Furman has fully discussed the question of one being ‘confronted’ by the witnesses against him, and many authorities are cited bearing upon this exact question, among them being: 2 Wigmore on Evidence § 1895, and Underhill on Criminal Evidence, 2d Ed., § 265. It is unnecessary to quote from this or other decisions. The main and essential purpose of confrontation is to secure the right of cross-examination. This right was given in the instant case, and defendant’s counsel fully and ably cross-examined the witness, and this cross-examination was read to the jury as was the direct examination. Williams v. State, 42 Okla. Cr. 399, 276 P. 515; Foster v. State, 35 Okla. Cr. 70, 248 P. 847; Mendenhall v. United States, 6 Okla. Cr. 436, 119 P. 594; Stealer v. State, 10 Okla. Cr. 460, 138 P. 395; Bryant v. State, 33 Okla. Cr. 383, 244 P. 453.”

See, also, Sweet v. State, 70 Okla. Cr. 443, 107 P. 2d 817.

We are of the opinion that it was not error to admit in evidence the transcript of the testimony of Dr. Corn-well given at the preliminary examination, under the facts in this case.

The next assignment of error is that the verdict and judgment are not supported by the evidence, and the evidence is insufficient to sustain the allegation of any crime.

The evidence in this case reveals that Dr. N. L. Corn-well was a practicing physician with an office in the small city of Coyle, Logan county. On the night of January 24, 1946, his office was entered by tearing a screen from the window of the building, and forcing the window open. The office was on the first, or ground floor, and consisted of five room — a small storage room, a drug room, a small sleeping room, and also a private office and reception room.

The nightwatchman, Abijah R. Anderson, testified that on the night of January 24, 1946, he saw defendant and another party on the streets of Coyle. He followed them, and saw them go around to the rear of Dr. Corn-well’s office, and stand there for a short while. They then returned to the street, and mingled with the crowd. The marshal then called Elmer Hillerby, who was in the hardware business in Coyle, but who had a commission from the sheriff of the county, and asked Sim to assist him. Together they went to the building in which Dr. Cornwell’s office was located, and they found the defendant in the building. A screen had been torn from a window on the west side of the building, and the window was up. All of the doors were locked. The nightwatchman had examined the doors prior to seeing the defendant.

Viola W. Ford, Dr. Cornwell’s office assistant, testified that she and the doctor left the office together and locked all doors, and that the window in question was closed. They left the building shortly after dark. She further testified that the defendant Gibson called the doctor’s home and she answered the telephone. He asked for the doctor, and when she informed him that the doctor was out on a call, he asked how soon he would return.' He stated that he had a patient he wanted to take to the doctor. In about ten minutes he called again, and they had practically the same conversation, and he stated he had a patient who was hemorrhaging, and insisted on knowing how soon the doctor would return. About 15 or 20 minutes after the second conversation, Mr. Hillerby called her and stated that there was someone in the doctor’s office, and asked her to come down and unlock the door. She went immediately, and when she arrived she saw Mr. Hillerby “standing there at the window watching Gibson up in the corner office.” She heard Mr. Hillerby say, “Drop it, come out of there, what are you doing in there?” She saw the defendant with “a little hypodermic case in his hand and he backed up against the wall to keep anyone from seeing him in there.” Mr. Hillerby then called the nightwatchman and Mr. George Young, a barber, who was at the rear, watching the back door. The defendant was arrested and turned to the sheriff of Logan county who had been called.

George Young, a barber, a witness for the state, testified to seeing the defendant and other party on the streets of Coyle, and that they asked him if there was a doctor in town, and he directed them to Dr. Cornwell’s office. The defendant answered that he had been there and the doctor was not in, and he asked where he lived. The witness went into a restaurant, and the defendant and his companion went in about the same time. He heard the defendant call Dr. Cornwell over the telephone, but did not hear what he said. Witness left the restaurant and went to bed about 10:30. Soon thereafter he heard a noise, and went to the back of the building, and saw the defendant and the party who was with him in the restaurant standing by the window. He testified:

“Q. The same two men you had seen earlier in the evening? A. Yes, sir. Q. Was this defendant one of them? A. Yes, sir, and I hollowed at them and told them to get away from there, I might take a shot at them, and they disappeared and I went back to bed. And in 15 or 20 minutes I heard a noise again, and I got up and came back to the back again, where my back door and this other door is about eight feet from that window. * * * Q. What, if anything, did you see the defendant doing? A. When I went to the door the second time, I heard them tearing the screen off, and I thought it was a tub come off of the wall, and I looked and the small man was holding the window up and Mr. Gibson was going in. Q. You are positive it was this defendant? A. Yes, sir. Q. And that was some time between 10:30 and 11 o’clock? A. It was on or about 11 o’clock. Q. What was the condition of the light out there? A. When I opened my back door, it was fairly light out there, the light in the back part of the dry-goods store, and the cafe. Q. And those lights were all on?' A. Yes, sir, the cafe stays open all night, and the light burns in the drygoods store all night. Q. And you can identify this defendant as the man you saw crawling in that window? A. Yes, sir. Q. And the other man was helping him? A. Yes, sir.”

Mr. Hillerby testified to all the facts as above stated, and of the arrest of the defendant Gibson in the building, and to calling the sheriff and turning the defendant to him.

The above evidence clearly reveals that the office of Dr. Cornwell was entered by tearing the screen from the window, and opening the window by defendant and another party. The defendant was caught in the building in the very act of taking the doctor’s supplies. There might be a strong inference that the defendant was in search of some narcotic drug, but we know of no law which permits the breaking and entering of a building for the purpose of the larceny of narcotics. The law recognizes no such distinction. If this were true, it could be presented to the jury for their consideration.

The defendant testifying in his own behalf admitted entering the building, but stated he entered through the door, which was open. He denied knowing anything about the screen being off the window, or that the window was open. He denied entering the building through the window. He claimed he was attempting to see Dr. Cornwell for his friend, Martin, who was ill. He also testified that both he and Martin had been to see the Doctor once prior to this time, about December 15, 1945, and the doctor had treated Martin, and given him a box of medicine, and told him to return in about two weeks. The Doctor testified that he did not know the defendant or Martin, and had never seen them before, to his knowledge. Viola Ford, who worked in the Doctor’s office, also testified that she had never seen either of the parties before. All of this evidence was for the consideration of the jury.

Finding no error, the judgment of the district court of Logan county is affirmed.

JONES and BRETT, JJ., concur.


source: Caselaw Access Project

author: BAREFOOT, P. J.

license: Public Domain

text:
    W. H. BRUMLEY v. STATE.
    No. A-10792.
    Nov. 26, 1947.
    (187 P. 2d 261.)

      F. L. Welch, of Antlers, for plaintiff in error.
    Mae Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Ralph K. Jenner, County Atty., Choctaw County, of Hugo, for defendant in error.
   BAREFOOT, P. J.

W. H. Brumley was charged in the district court of Choctaw county with the crime of grand larceny; was tried, convicted and his punishment fixed at one year in the State Penitentiary. Motion for new trial was filed, considered, overruled and exception saved, and the defendant has by petition in error with case-made attached appealed to this court.

The defendant was charged jointly with Wilbur Brians and Mrs. Wilbur Brians with having, on March 21, 1944, taken from the automobile of Mrs. Charlie Hop-son, in Fort Towson, Choctaw county, two cases, containing three rolls of film and one loud speaker, of the value of 200

The case here under consideration was tried on April 16, 1946. From the record, it appears that Wilbur Brians and his wife entered pleas of guilty to the charge, and were each sentenced to serve one year in the State Penitentiary. Their terms had been served prior to this trial. Both testified lor the state.

Wilbur Brians testified that both he and his wife were drug addicts, and that, on the date of the crime charged, the defendant was also using drugs, but on the date of the trial defendant was not an addict.

All three defendants lived at Ada, Okla. They left there some time late in the afternoon of March 21st, and in the course of the evening and early morning, visited not less than eight towns in southeastern Oklahoma, and at each place contacted, or attempted to contact, a doctor or doctors, claiming that Mrs. Brians was ill. They were in the defendant’s automobile, and he seems to have done all of the driving.

At Hugo, after making two or three stops and not being able to get any drugs, they picked up one Charles Green, who went with them to Fort Towson, for the purpose of seeing Dr. H. L. Boyer, whom Mr. Green knew. There they parked the car and Green remained in the car, while the other three went to a cafe and telephoned Dr. Boyer at his home and asked him to come to his office. The doctor came down, but refused to give Mrs. Brians a dose of morphine. The four then went to Idabel, Yalliant, Wright City, and back to Hugo, and Charles Green went home. The other three then returned to Fort Towson and attempted to locate the home of Dr. Boyer. The Doctor had driven down to his office in a pick-up truck. Mrs. Hop-son lived directly across the street from Dr. Boyer, and her father had a pick-up truck, which was parked in the driveway.

Wilbur Brians testified that they circled the block two or three times, the defendant driving the car, and then the witness got out and broke the glass of a Ford coupe parked just back of a pick-up truck, thinking that it was the doctor’s car, and took therefrom what he thought was a “doctor’s satchel.” The three drove about half a mile west of town and discovered that the “satchel” contained a loud speaker for a moving picture machine. They set it out by the side of the road, and drove back to Mrs. Hopson’s home. The witness again got out of the car and took the other satchel from the same automobile. After they had driven out of town, they found that the second bag contained “show film,” and they threw it off a bridge, about a mile and a half west of town.

This testimony was corroborated in every particular by Mrs. Brians.

Charles Green testified that the three came to his home about 7 o’clock in the evening and that he went with them to Fort Towson, then to Idabel, Valliant, and Wright City, after which they took him back to Hugo. He had known the. defendant a number of years, but had not met the Brians until this date. He testified that they contacted or attempted to contact doctors at each of the towns where they stopped. About a week later, witness learned of the property of Mrs. Hopson being stolen, and made a trip to Ada and talked with the defendant about it, and contacted the sheriff after his return to Hugo.

Byrd Collins, a deputy sheriff of Choctaw county, testified that after receiving notice of the loss of the property in question, he learned that some parties had telephoned Dr. Boyer from a cafe on the night in question; he saw Dr. Boyer and then went to Hugo and talked to Charles Green, who told him who had been with him in Fort Tow-son. Green went with the witness, and they found the film in a creek, where it had been thrown from a bridge, a mile and half west of Fort Towson.

Dr. H. L. Boyer was in Lincoln, Ark., at the time of the trial, and had been there for more than a month. The county attorney introduced a praecipe for subpoena filed in the case against the defendant on April 4, 1946. Byrd Collins testified positively that Dr. Boyer was out of the state and that he was in Lincoln, Ark. Emma Andrews, reporter in the office of the county attorney, testified that she mailed a letter to Dr. Boyer, at Lincoln, Ark., in which she advised him the date of the trial, and enclosed a subpoena for his appearance. Upon this showing, over the objection of the defendant, the trial court permitted the testimony of Dr. Boyer, given at the preliminary examination, to be read to the jury.

Dr. Boyer testified that he was called to his office between 9 and 10 o’clock, on the night in question, and saw the defendant and Mr. and Mrs. Brians. That the defendant stated that Mrs. Brians was his sister, that they were traveling, and she was ill and needed some morphine. When the doctor saw the arm of Mrs. Brians he realized she was an addict, and refused to give her the medicine, and the three left his office. He did not know any of them. He knew Charles Green, but did not see him upon this occasion.

Yerlie Hopson testified that she lived directly across the street from Dr. Boyer, in Fort Towson; that she owned a Ford coupe in which, on the night in question, she left a moving picture speaker and films of the value of about $300; that the car was locked; that during the night the glass was broken in the car, and the speaker and film stolen therefrom. She further testified that her father owned a Ford pick-up, which was parked on the night in question directly in front of her coupe; that Dr. Boyer owned a Dodge pick-up. That a boy found her loud speaker on the highway, in a ditch, and that Byrd Collins and someone found the films in a creek.

The defendant did not offer any testimony whatever.

The petition in error follows the motion for new trial, and makes the usual allegations of error. In addition thereto, defendant sets out as error the action of the trial court in admitting the testimony and evidence of Dr. Boyer, given on preliminary hearing; that the court erred in holding and ruling that there had been sufficient corroboration of the evidence of the admitted accomplices of the defendant to authorize and justify the giving of the ease to the jury; and that the court failed and refused, upon timely request therefor by defendant, to instruct the jury that a case had not been made out against defendant and to return a verdict of not guilty.

Under the authority of the case of Tobin v. State, 49 Okla. Cr. 265, 293 P. 575, the state had only the burden of fshowing that the witness Dr. IT. L. Boyer was out of the state at the time of the trial in order to lay a predicate for the admission of the testimony given at the preliminary hearing; and we are of the opinion that the proof made in this case was sufficient.

In the case of Brown v. State, 81 Okla. 314, 164 P. 2d 401, 404, this court said:

“If a witness has testified at a former trial, or at a preliminary hearing, and the defendant had an opportunity to cross-examine him, and when the case comes on for trial again it is satisfactorily proven that said witness is dead, or out of the state, or is insane, or that his whereabouts cannot with due diligence be ascertained, or is sick and unable to testify, the testimony of such witness, given upon said former trial, may be proven upon tbe subsequent trial. And the constitutional provision which guarantees to the defendant the right to be confronted by the witnesses against him, is fully complied with when he has had the right to cross-examine said witnesses at the former trial.”

The record in this case not only shows that this witness was cross-examined by the attorney for the defendant, but indicates that the defendant himself propounded some questions to Dr. Boyer.

It is next contended that there was not sufficient corroboration of the evidence of the admitted accomplices of the defendant to authorize and justify the giving of the same to the jury.

This court has often held that a conviction may not stand upon the uncorroborated testimony of an accomplice, and the corroboration is not sufficient if it merely shows the commission of an offense, or the circumstances thereof. 22 O. S. 1941 § 742. However, if the accomplice is corroborated as to some material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that the accomplice speaks the truth as to all. Davis v. State, 18 Okla. Cr. 453, 196 P. 146; Moody v. State, 13 Okla. Cr. 327, 164 P. 676; Hathcoat v. State, 71 Okla. Cr. 5, 107 P. 2d 825; Edson v. State, 77 Okla. Cr. 100, 139 P. 2d 198.

In Haas v. State, 37 Okla. Cr. 335, 257 P. 1115, this court said:

“Where there is evidence in corroboration of an accomplice, tending to connect a defendant with the commission of the crime charged, the sufficiency of such corroborating evidence is for the jury.”

And in Key v. State, 38 Okla. Cr. 169, 259 P. 659:

“Where the sufficiency of the evidence to corroborate an accomplice is challenged, this court will take the strongest view of the corroborating testimony that such testimony will warrant, and, if it can say that there is corroborating evidence tending to connect the defendant with the commission of the offense, it will uphold the verdict.”

In applying this test, as can be seen from the short review of the corroborating testimony of the witnesses Charles Green, Byrd Collins, deputy sheriff, Mrs. Hop-son and Dr. Boyer, we are of the opinion that there is sufficent corroborating testimony to sustain this conviction.

After the state had rested, and the demurrer of the defendant to the evidence had been overruled, the defendant requested the court to instruct the jury that a case had not been made out against the defendant, and that in the opinion of the court it should return a verdict of not guilty for that reason. This motion was by the court overruled; and the defendant assigns this action as error. We find no error in this ruling of the court.

We have examined the instructions given by the court, and find them to be applicable to the law and the facts. Defendant did not object to any of the instructions given, and offered no additional instructions.

On the record before us, we have found no error which would warrant a reversal of the judgment, and the judgment and sentence of the district court of Choctaw county is therefore affirmed.

JONES and BBETT, JJ., concur.


author: BRETT, J.

text:
    STATE v. JOHN WESLEY MORGAN.
    No. A-10745.
    Nov. 26, 1947.
    (187 P. 2d 273.)
    Tom Haile, Co. Atty., of McAlester, for plaintiff in error.
    W. N. Redwine, of McAlester, for defendant in error.
   BRETT, J.

This is an appeal by the State of Oklahoma on a reserved question of law. The grounds of said appeal are as follows: On January 14, 1946, petition was filed in the county court of Pittsburg county, Okla., against John Wesley Morgan, seeking the revocation of a nonintoxicating beverage license, issued to him in the town of Hartshorne. On January 22, 1946, after hearing thereon, the license was revoked. On the same day, notice of appeal was given, an appeal bond made and approved. It appears that when this was done, the county court refused to suspend said license, under the provisions of Title 37 O. S. A. § 162h, as follows:

“If an appeal is taken, as herein provided, the county judge may suspend such permit pending final determination of the appeal by the district court.”

On that same day, the county attorney having information the defendant sold a nonintoxicating beverage, charged him, by information, with the sale of the same in violation of Title 37 O. S. A. §§ 162q and 162e, subs, (c), providing against the sale of such beverage without a license and fixing a penalty therefor.

A motion to dismiss the action was filed by the defendant. The state then moved that the court strike from the files the motion to dismiss. For the purpose of the appeal herein, the county attorney was permitted to amend the information to show the violation occurred on the 23rd of January, 1946, instead of on the 22nd of January, 1946. This appeal was taken on the court’s refusal to sustain the state’s motion to strike the defendant’s motion to dismiss, from the files, and the court’s action in sustaining the defendant’s motion to dismiss the information.

The appeal was filed herein on March 16, 1946. The case was submitted on the record January 30, 1947, and the state given 30 days in which to file briefs. No briefs have been filed by the state and no appearance made on behalf of the state.

This court has recently held, in State of Oklahoma v. Humphrey, 85 Okla. Cr. 153, 186 P. 2d 664, 665:

“* * * where the state appeals on a reserved question of law and no brief is filed and no appearance made when the case is called for submission the judgment will be affirmed. State v. Sisler et al., 71 Okla. Cr. 211, 110 P. 2d 321.
“In Barefield v. State, 26 Okla. Cr. 274, 223 P. 408, this court held that where the time for filing a brief supporting the appeal has passed and no brief having been filed, it may be assumed that the appeal has been abandoned.”

For the foregoing reasons, the judgment of the county court is affirmed.

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


author: JONES, J.

text:
    FRED WHEELER v. STATE.
    No. A-10782.
    Nov. 26, 1947.
    (187 P. 2d 266.)

      Garrett & Harlan, of Mangum, and L. A. Pelley, of Altus, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Fred Wheeler, was charged in the district court of Jackson county with the crime of rape in the first degree, was tried, convicted, and sentenced to serve a term of 15 years imprisonment in the State Penitentiary, and has appealed.

It is contended that the court erred in refusing to sustain the motion of defendant for an instructed verdict of not guilty on the ground that the material evidence of the state is contradictory, inconsistent and unreasonable and bears upon its face inherent evidence of improbability; counsel citing in support of his contention the rule of law laid down in Davidson v. State, 57 Okla. Cr. 188, 46 P. 2d 572; Williams v. State, 61 Okla. Cr. 396, 68 P. 2d 530.

Naomi Kuykendall, tlie complainant, testified tliat she was living in Altus on August 7, 1945. That shortly after dark on that date she had started to the church to which she and her family belonged, but had seen a girl acquaintance on Main street in Altus and had stopped to visit with her. That shortly thereafter she started up the street on her way to church and saw the defendant together with Helen Tucker and Kenneth Langford in an automobile. That as she was passing the automobile, Helen Tucker cálled her over to the car. That she visited with them for a few minutes and then Helen asked her to get in the car and drive with them down to her aunt’s house. That she agreed to go if they would get her back in time for church. That they went to Helen’s aunt’s house, picked up the aunt and took her to another place where the aunt left the car. That the defendant then drove the automobile south of Griderville and stopped the car there at the side of the road. That Helen Tucker and Kenneth Langford got out of the car and started walking back up the road. That Helen and Kenneth were gone about 40 minutes. That shortly after they left, the defendant started making-advances toward her. He started putting his arm around her and tried to kiss her. That she shoved him away and told him to quit. That he started arguing with her and tried to persuade her into letting him go ahead. That she started .to get out of the car, but he grabbed her and scuffled with her and would not let her leave. That the defendant kept wrestling with her for several minutes and choking her. That finally he tore her panties off of her. That she kept fighting him and telling him to leave her alone, but that he had overpowered her and had sexual intercourse with her there in the front seat of the automobile. She further testified that she hollered for help, but no one came to help her. That she then put her panties back on. That in a few minutes Kenneth and Helen returned and she was taken to Altus where she got a taxicab, went immediately to her home and told her father and mother what had occurred. Her. 15th birthday was the day of this alleged occurrence.

On cross-examination, she testified that they drove' around town about 30 minutes before driving out to the country. She denied that the car was moved from the place where it originally stopped until all the parties got into it to return to Altus. She denied that she put her arm around defendant and kissed him while they were sitting in the seat before the alleged rape occurred and said she did everything in her power to resist his assault. She admitted that she did not tell Helen and Kenneth what had occurred when they returned to the car, but stated that she did not say anything at all after they arrived, even on the ride back to town, and gave as an explanation for not saying anything to them the fact that she had already “hollered and screamed and they would not help me”. She had not met either the defendant or Kenneth Langford before the night of this occurrence, but had become acquainted with Helen Tucker when the witness had worked some at the laundry where Helen was employed.

Mrs. C. K. Kuykendall testified that she was the mother of Naomi. That on the night of August 7, 1945, Naomi left her home a little after 8 to go to church. That she next saw her about 10 o’clock. She and Mr. Kuykendall had gone to bed. That Naomi told them she had been raped. That her clothing was torn and there was blood on her dress, slip and panties.

On cross-examination Mrs. Kuykendall testified that she gave Naomi a douche with a fountain syringe using plain water with a Lysol mixture. Early the next morning she notified the officers what had occurred. She examined her daughter’s privates and they were swollen, bruised and bleeding. She took her to Dr. J. P. Irby for examination and treatment.

C. R. Kuykendall testified to substantially the same facts that were related by Mrs. C. R. Kuykendall.

Dr. J. P. Irby testified that the parents of Naomi Kuykendall brought her to his office for examination the next day after the alleged attack occurred. His testimony as regards her condition was:

“A. I found that she was — the external portion of the female organs were swollen, discolored; there was blood oozing from the vaginal tract, coming from up inside. There was slight scratches or abrasions around the opening ; the hymen, commonly known as the maidenhead, had been torn in two places, and in examining her, as I remember, I opened the tear again. It bled from one of the- places where it had been torn. The swelling was rather intense and I couldn’t make a complete examination because she couldn’t stand the pain. Q. Now could you insert your finger into her private parts, Doctor, at that time without causing her excruciating pain ? A. I could have by exerting considerable force and causing pain but I chose not to because it wag unnecessary.”

The Doctor expressed the opinion that there had been a penetration of her private organs probably by the act of sexual intercourse. The bleeding which he found was caused by the rupture of the hymen and the abrasions which he found could have been caused by various instrumentalities, but that the common cause was an act of sexual intercourse.

On re-direct examination, he testified that the condition which he found in examination of the prosecutrix indicated that this was her first sexual connection.

A. C. Boaldin, sheriff of Jackson county, testified that in a talk with the defendant the day of his arrest, the defendant said he was 25 years of age.

The evidence on behalf of defendant was as follows: Helen Tucker, age 17, testified that she was with Kenneth Langford and Fred Wheeler earlier in the evening of August 7, 1945. She had a date with Kenneth Langford and the defendant, Fred Wheeler, was wanting her to get him a date with some girl. That they were parked in defendant’s car in front of Felkner’s Cafe when she saw Naomi Kuykendall walking past. She called to Naomi and when she came over to the car she invited her to go riding with them. That Naomi said she would go, but she would have to be back by the time church was out around 11 o’clock. That they then went over to her aunt’s and got some of her clothes as she (the witness) was fixing to go back to her home in Nebraska. That they then drove out west of town near a place called Griderville and stopped the car. That it was warm in the car, so she and Kenneth got out of the car and walked east down the road. That they walked down road about 25 or 30 yards. That she and Kenneth were gone about 30 minutes. That they came back to the car once to see if the defendant and Naomi were ready to go, but that Fred said that they weren’t ready to go. She did not hear any hollering nor any cry for help. Naomi did not make any complaint to her about what was going on. That when they came up behind the car she did not hear Naomi making any protest to the defendant concerning what was being done. When she returned to the car the first time the defendant was under the wheel and Naomi'was sitting by Mm. That when they first stopped, the prosecuting witness stated that she had better go home as she had to meet her brother and go home with him after church. That she saw Fred with his arm around her while the car was stopped. That Naomi did not say anything on the return to town. That when she got out of the car in front of the Plaza Theatre she did not say anything and she did not make any complaint about anything that had occurred.

On cross-examination, Helen Tucker testified that when the defendant saw Naomi approaching before the witness called her to the car, the defendant asked the witness if she knew her and she told him Naomi wasn’t but 15 and he had better leave her alone. When asked as to what she and Kenneth were doing down the road she stated, “Haven’t you got me up here to find out what happened to her”. She and Kenneth were gone from the car about 30 minutes before they came back the first time, they then went back down the road a little ways before coming back the second time and leaving. When asked if she wasn’t too busy with Kenneth to pay attention to what was going on at the car she said she was not very busy. When asked concerning a conversation with the county attorney in the presence of the sheriff next day concerning what she and Kenneth were doing, she replied that what she was talking about was what occurred when they went out again after they had brought Naomi back to town. She stated that she, Kenneth, the defendant, another man and two more girls went out on another trip after Naomi had gotten out, and that on the way they were talking to the defendant about Naomi and he said if she got pregnant it would be a trip to the license bureau to get a marriage license.

Kenneth Langford testified that he and the defendant lived at Martha, Okla. That he and the defendant came to Altus on August 7,1945. He had a date with Helen Tucker. Later Naomi Kuykendall came by and got in the car with them. The defendant wanted to drive to Mangum but Naomi said she did not have time as she had to meet her brother at 11 o’clock. Fred then said that since they did not have much time they would just drive out to the country and everybody agreed. They drove a short ways out of town and then stopped the car. He and Helen got out and went about 25 yards east of the car. His testimony from that point is substantially the same as that of Helen Tucker. He further testified that he did not see anything wrong with Naomi’s clothing and did not hear any complaint from her.

On cross-examination, he testified that when he and defendant came to Altus he had a date with Helen Tucker and defendant was supposed to have a date with a girl who worked in a cafe, by the name of Claudia Baker. That they drove to Claudia Baker’s house, but she was not at home. That they then parked on the main street of Altus looking for a date for Fred when Naomi Kuykendall came along. Naomi did not say anything but just sat there as they were driving back to town.

The defendant testified that he was reared near Martha. That at one time he had worked for the Agricultural Department in Oklahoma City. That he met the prosecuting witness for the first time the night of August 7, 1945. Kenneth and Helen got into the back seat of his club coupe and he and Naomi sat in the front seat. After driving around over town a while Kenneth looked at his watch and saw it was a little past 10 o’clock. Naomi said she had to meet her brother at 11 o’clock. They then drove out about two miles south and west of Altus and parked. Kenneth and Helen got out of the car and walked back east. After they were gone he put his arm around Naomi and kissed her. Naomi had both of her arms around his neck. After a few minutes Kenneth and Helen returned and Kenneth moved the car over to the right toward a ditch so that they would be completely out of the road. Helen and Kenneth then left the second time. The defendant then testified:

“A. I put my arm around her; she put her left arm around my neck and her right arm around my body and I kissed her and run my hand up her leg under her dress. And she didn’t make any resistance, no discussion at that time what I was doing or what she was going to do. Q. So she didn’t resist? A. I didn’t know what to think other than she was. just what she was out there for. So I run my hand inside her pants and she raised — put her feet against the floor board, raised her body from the seat and pulled her pants down past the buttocks. Q. You pulled her pants down how far? A. Past the buttocks, down to about the bend of her legs. And she sat back down. Q. She raised up to let you pull them down? A. Yes, sir. And then I run my hand up and inserted my finger, and I found she was very small. And she didn’t act as if I was bruising her or hurting her in any way, but I knew she was very small. And when I discovered that I said, ‘I couldn’t have intercourse with you if I wanted to.’ And she said, ‘You are anyhow’. And I said ‘I am not’.”

He then denied that he had sexual intercourse with the prosecuting witness and gave as his reasons the following testimony:

“A. First, she was much too small, much too young. She was not built right for that for me. And another thing, not exactly a proper place in the front seat of a five-passenger coupe.”

He then testified that he did not know what caused her to bleed unless his finger nails were long and he might have scratched her. But he admitted that he saw- a little blood on his ear seat after Naomi had gone.

On cross-examination, he testified that Naomi was perfectly willing for him to make all the advances which he made and that she was perfectly willing for him to insert his finger in her privates. He further testified that he had never been married.

Dr. John R. Reid was called as a witness on behalf of defendant. He was asked whether he had made an examination of the defendant’s automobile and upon receiving an affirmative reply was asked whether it would be possible for the defendant to have accomplished an act of sexual intercourse by force and violence against the will of Naomi Kuykendall in the front seat of that car with the doors closed. The trial court sustained an objection to that testimony and the witness was excused. •

Naomi Kuykendall was recalled as a witness and denied that she helped pull her panties down as testified to by defendant, and denied that she had assented to his inserting his finger in her privates and further denied that was all that he did, but stated again that he inserted his male organ in her privates and had sexual intercourse with her.

We have given a full resume of all the proof on behalf of the state and defendant. In the cases relied upon by the defendant the proof on behalf of the state was contradictory, inconsistent, and bore upon its face inherent evidence of improbability. The instant case presents no analogous situation. If the testimony of the prosecuting witness is to be believed, the defendant is guilty of the crime of rape. If the jury had believed the testimony of defendant, no rape was committed. The strongest argument in support of defendant’s contention that no rape was committed is the testimony of Helen Tucker and Kenneth Langford that no outcry was made and no complaint was made to them after they returned to the car. However, the prosecuting witness testified that she did make an outcry but that Helen and Kenneth did not come to help her. The prosecutrix did go immediately home after the alleged attack occurred and related the incident to her father and mother. Her torn panties, bloody garments, and her physical condition, all corroborated her story. The testimony of the examining physician also corroborated the evidence of the prosecutrix. The evidence raised an issue of fact for the determination of the jury, and under such circumstances this court will not interfere with the verdict that was rendered.

It is urged that the court erred in refusing to give defendant’s requested instruction as follows:

“Defendant’s Requested Instruction No. One
“Gentlemen of the Jury:
“You have been instructed that Rape in the first degree is the accomplishment of sexual intercourse by a male person, with a female person, either by use of such force and violence, as to overcome resistance or by use of threats of force and harm, as to overcome such resistance through fear of bodily harm, and without the consent of the female.
“In this connection you may consider the evidence before you concerning the failure of the prosecutrix to make outcry or complaint, when she had opportunity to do so, if you find such evidence of such failure; and in the event you find that from the evidence offered she did not make outcry or complaint, you will consider the same in determining whether or not prosecutrix consented to the actions of the defendant herein;
“Mere failure to make outcry or complaint is not conclusive against the prosecutrix in the consideration of her evidence in this case, but, if you find that she did not make outcry, or did not complain immediately to others to whom she might have made complaint, such failure should be reasonably or sufficiently explained to your satisfaction as jurors, in your consideration of this case.”

No authority is cited to support the contention of the defendant that the last two paragraphs of this instruction was proper. After a consideration of this instruction, it is our opinion that the court would have acted erroneously had he given such instruction. The vice of the instruction is that it assumes a state of facts not in evidence and is a comment upon the weight of the evidence.

It is also contended that the court erred in requiring the defendant to proceed to trial without having served on him a list of the names of the witnesses together with their post-office addresses to be used against him in chief at least two days before the trial.

When the case was called for trial, counsel for the defendant objected to making an announcement for the reason that the defendant had not been furnished with a list of witnesses to be used by the state in its case in chief at least two days before the case was called for trial as provided by article 2, sec. 20, of the Constitution of the State of Oklahoma. The state then submitted to the court a list of witnesses to be used in chief against defendant together with their post-office addresses which had been filed in the office of the court clerk. This instrument shows that the list of witnesses was served on counsel for defendant on February 9, 1946, which was nine days before the case was set for trial. The record further shows that on September 11, 1945, the defendant appeared in person and with his counsel in open court for arraignment upon the information filed against him. That he waived reading of the information and filed a demurrer thereto which was overruled and thereupon the defendant entered his plea of not guilty. Endorsed on the information at the time of the arraignment of the defendant were the names of all the witnesses whose names appeared on the list of witnesses served on counsel for defendant on February 9, 1946.

The name of Naomi Kuykendall was not on the list of witnesses and when she was called as a witness, counsel objected to her testifying for the reason that her name was not endorsed on the information and her name was not on the list of witnesses which were furnished to counsel for defendant.

That part of article 2, sec. 20, of the Oklahoma Constitution, here involved reads:

“He shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their post-office addresses.”

In the case of Rich et al. v. State, 51 Okla. Cr. 418, 1 P. 2d 805, this court had occasion to discuss at length the constitutional provision here involved in its application to a state of facts very similar to the facts in the instant case. The law of that case as shown by the syllabus reads:

“The law does not prescribe the manner in which the names of the witnesses in a capital case shall be furnished the defendant. If it be made to appear to the satisfaction of the trial court that such names were furnished the appellant at least two days before the case was called for trial, the manner in which the names were so furnished becomes immaterial.
“Where the defendant is arraigned in open court more than two days before the trial and waives the .reading of the information and enters his plea of not guilty, and where defendant’s counsel in the presence of defendant, upon order of the court, is furnished a copy of the information with a list of the witnesses to be used in chief by the state indorsed thereon, such service of the list of witnesses is sufficient to meet the requirements of article 2, § 20, of the Constitution.”

In the body of the opinion it is stated:

“It is contended by defendants that the fact that they were present in open court when a copy of the information and list of witnesses was served on their counsel is insufficient, as the Constitution requires that the list shall be served upon them personally.
“That part of article 2, § 20, of the Constitution, pertinent to the issues here, is as follows:
“ ‘* * * And in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their post-office addresses.’
“In Franklin v. State, 9 Okla. Cr. 178, 131 P. 183, this court said:
“ ‘The defendant in a capital case may waive his constitutional right to be furnished with a list of the witnesses that will be called in chief to prove the allegations of the indictment or information, together with their post-office addresses, at least two days before the case is called for trial.’
“In Pollock v. State, 26 Okla. Cr. 196, 223 P. 210, this court said:
“ ‘The service of a list of witnesses upon defendant to be used by the state in chief is a matter which the defendant can waive and which he does waive if no timely objection is interposed.’
“In Manning v. State, 7 Okla. Cr. [367], 368, 123 P. 1029, this court said:
“ ‘The law does not prescribe the manner in which the names of witnesses in a capital case shall be furnished the defendant. If it be made to appear to the satisfaction of the trial court that such names were furnished the appellant at least two days before the case was called for trial, the manner in which the names were so furnished becomes immaterial.’ State v. Frisbee, 8 Okla. Cr. 406, 127 P. 1091; Franklin v. State, 9 Okla. Cr. 178, 131 P. 183; Goben v. State, 20 Okla. Cr. 220, 201 P. 812; Pollock v. State, 26 Okla. Cr. 196, 223 P. 210.
“Where at the time of arraignment, and more than two days before the trial in a capital case, upon the order of the court the defendant’s counsel, in the presence of defendants, is given a copy of the information upon which the names of the witnesses to be used by the state in chief are indorsed, this service in open court is sufficient service upon the defendants to meet the requirements of article 2, § 20, of the Constitution.”

The question as to whether the court erred in permitting Naomi Kuykendall, the prosecuting witness, to testify over the objection of counsel for defendant when it was shown that her name was not endorsed on the information and was not on the list of witnesses furnished to counsel for defendant, presents a question of first impression in this court. The information alleges that the assault was made upon Naomi Kuykendall. The preliminary complaint likewise named'Naomi Kuykendall as the complaining witness and the person upon whom the assault was allegedly made. Naomi testified at the preliminary examination against the accused and was cross-examined by his counsel. The state could not possibly make a case of rape against the accused without the testimony of the person upon whom it is alleged the rape was committed. The purpose of the constitutional provision requiring that defendant be furnished with the names of the witnesses to be used in chief against him, is for the purpose of informing the defendant what evidence he may reasonably expect to be offered against him. Where the name of the person upon whom the attack is alleged to have been made is set forth in the information, it would appear that such fact conveys the information to the accused that the state would rely upon her testimony in chief in order to convict the defendant.

In the case of Denton v. State, 58 Okla. Cr. 275, 53 P. 2d 1136, 1137, this court in discussing the constitutional provision stated:

“A narrow, technical rule of construction is not applied to this provision of the Constitution. The purpose of this requirement is to enable a defendant to know what he may be expected to meet and to prepare for trial. When a defendant has this information in due time, the requirements of the Constitution have been met.”

Although apparently this court has never had occasion to pass upon the question as to whether the person upon whom an assault is alleged to have been made should also have his or her name endorsed on the information before he or she may be used as a witness, it has had occasion to pass upon cases where the situation is analogous. This court has held that the name of a codefendant whose name appears upon the face of the information does not have to be endorsed on the list of witnesses and that said codefendant may be used as witness in chief against the defendant.

In the case of Cloud v. State, 41 Okla. Cr. 395, 273 P. 1012, this court held:

“Every defendant jointly indicted or informed against is charged, under the statute, with notice that the state may, if it so desires, use a codefendant as a witness against him. The appearance of the name of a witness, on the face of the information as a codefendant, answers every requirement of the statute, that the name of the witness be indorsed on the information before trial.” See also Cudjoe v. State, 12 Okla. Cr. 246, 154 P. 500, L. R. A. 1916F, 1251; Varner v. State, 42 Okla. Cr. 42, 274 P. 43.

It is our conclusion that the insertion of the name of the prosecuting witness in the information as the person upon whom the alleged rape was committed, coupled with the further fact that she had prior thereto testified at the preliminary hearing and was cross-examined by counsel for defendant, was a sufficient compliance with the constitutional provision so that it can be said that her name had been furnished to the defendant as one of the witnesses to be used by the state in its case in chief against him in the trial.

We have carefully examined the record in reviewing the assigned errors and to search for any errors which might be said to have kept defendant from having a fair and impartial trial and have found none. We have found no extenuating circumstances in defendant’s favor. His friend and companion, who testified on his behalf at the trial, stated that she told the defendant when he first inquired about the prosecutrix as he saw her walking up the street that she was only 15 years of age and that he should leave her alone. The defendant refused to heed this admonition, but proceeded to make a rapacious attack upon her.

Tlie judgment and sentence of the district court of Jackson county is accordingly affirmed.

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


author: PER CURIAM.

text:
    Ex parte BOOTS LADD.
    No. A-10940.
    Dec. 3, 1947.
    (187 P. 2d 265.)
    Kirksey M. Nix and George L. Hill, both of McAlester, for petitioner.
    Mae Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Fred W. Whetsel, Co. Atty., of Mc-Alester, for respondent.
   PER CURIAM.

Boots Ladd filed a petition for writ of habeas corpus in this court, seeking reduction of his appeal bond.

Petitioner alleges that on July 9, 1947, he was convicted in the district court of Pittsburg county, Okla., in case No. 4773, of the crime of manslaughter in the first degree and sentenced to serve a term of 15 years in the State Penitentiary. He alleges that the district court of Pittsburg county set his appeal bond in said cause at the sum of Ten Thousand ($10,000) Dollars; that said bond is excessive, and prays that it be reduced.

A hearing was had in this court on said petition on September 17, 1947, and evidence received. The court, after due consideration, was of the opinion that the bond fixed by the district court of Pittsburg county is not excessive, and the application for reduction of the same was denied.

It is so ordered.


text:
    LEWIS GRAYSON v. STATE.
    No. A-10722.
    Dec. 3, 1947.
    (188 P. 2d 696.)

      Cecil E. Eobertson, of Muskogee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The plaintiff in error, Lewis Grayson (a Negro), hereinafter called defendant, was charged, tried, and convicted of first degree rape and his punishment fixed by the jury at death.

The record herein discloses that the complaining witness, Doris Gene Coley (a white girl), and her fiance, who later became her husband, were sitting in an automobile in Muskogee, Okla., on the night of October 11, 1945, sometime between 9:30 and 10 p. m. The defendant approached the car, opened the door, and held a knife at the throat of Miss Coley’s escort. He then forced Miss Coley to reniove her escort’s belt and to tie her escort’s hands. Then he ordered Miss Coley to get under the wheel, her escort in the middle, and he got in on the right-hand side and ordered them to drive him around, under the threat that if they did not do as he told them to do they would suffer the penalty of death at his hands. His various commands were complied with. Later he ordered them to stop the car and her escort was required to lie down in the front seat and hold his hands above his head. Miss Coley was forced into the back seat where the defendant attacked her on her private parts with his mouth, and then had sexual intercourse with her to which outrages she submitted under the threat of death. Then he robbed Miss Coley and her escort of approximately $47. Then, he forced them to drive around some more, stopping a second time in a school yard where he forced Miss Coley, under fear of death, to submit to intercourse a second time. Then he robbed Miss Coley of her engagement ring and class ring and her escort of a wrist watch and a combination cigarette case and lighter with the escort’s initials on it. The defendant then required his victims to drive him around some more, stopping near a wire fence. He procured some wire, wired the escort’s hands, removed the belt from the escort’s hands, wired the escort’s hands to a door handle in the back seat of the car and then he wired Miss Coley’s hands together and tied them to the hands of her escort in the back seat. The defendant then left bnt returned a short time later to see that they were securely tied. He then fled to Taft in a cab and was identified by the cab driver who took him to Taft. While in Taft, he procured the services of another driver to take him to Tulsa. He was likewise identified by the witnesses who helped him procure this car, upon his representation he had' received a telegram from his wife whom he represented was ill.

While the officers were in his room in Tulsa, they discovered in the dresser drawer, in the room being occupied by the defendant, the combination cigarette case and lighter. Subsequent to the discovery of this, he made a statement to the police officers in which he admitted the robbery but denied the rape of Miss Coley. In the trial the defendant did not take the stand and deny the charge of rape. He further told the officers that he had pawned the diamond engagement ring to a Negro in Tulsa by the name of Jew for $10. Jew was contacted and brought the diamond ring to the police station. The same was later identified at the trial by Miss Coley as being her diamond engagement ring. In the statement made to the Tulsa police officers, he stated that he had sold the wrist watch to a person whom he could not identify for $4 and had sold the class ring to an unknown soldier for the sum of $9. The wrist watch and the class ring were never recovered. He also admitted giving the combination cigarette case and lighter to Euby Young, the girl with whom he was staying in Tulsa. After his arrest in Tulsa, the defendant was returned to Muskogee where he was positively identified by Miss Coley as the person who raped and outraged her, and robbed both her and her escort.

In the trial the defendant offered the defense of insanity, covering a period of time from childhood up to the date of the trial. It consisted of Negro witnesses who had been associated with him at various times under various conditions. No evidence of a psychiatrist was offered. The lay witnesses in behalf of the defendant were his stepmother, his father, his former wife, and an employer. Their testimony was in the nature of opinion evidence, very little of it being factual in nature. It was composed of such statements as follows:

“He would take off his hat, jump up and down on it and scream.”
“Frequently he talked to himself.”
“He wasn’t like other boys because he didn’t act like them.”
“At certain times he would have spells.”
“He got spells occasionally.”
“I always said he didn’t have good sense.”
“No, we didn’t find him anywhere because he would go off and not come back.”
“When the moon changed he would not help in the kitchen.”
“The only time he would have spells was when the moon changed.”
“He had two cousins in the State Hospital at Taft and he has one brother who isn’t right either.”
“Sometimes be has fits when he does carpenter work and he will get mad and throw things around.”

The foregoing expressions are very similar to the facts and conclusions drawn by the witnesses in Bingham v. State, 82 Okla. Cr. 5, 165 P. 2d 646, 656. In that case, the court held against the defendant’s contentions. In that case, very few facts were given by the witnesses as a basis for their conclusion of insanity. What facts that were given and the conclusions drawn thereon were strikingly similar to those in the case at bar. The conclusions therein were as follows:

“I certainly never found him responsible in any way.”
“I thought he was insane.”
“He always looked awfully wild.”
“I believe he has always been crazy,” etc.

There are practically no facts to support the conclusions in the case at bar. Standing alone and practically unsupported by facts, the conclusions were insufficient to raise a doubt in the trial court’s mind.

The defendant made no claim of inability to adequately defend by reason of present insanity either before . or during the trial, but made the plea of not guilty by reason of insanity his sole defense to the charge. When the jury returned its verdict of the death penalty on December 3, 1945, his counsel thereafter, on December 12, 1945, filed a motion in arrest of judgment which reads in part as follows, to wit:

“Gomes now the defendant, Lewis Grayson, in his own proper person and by his undersigned attorney, and respectfully moves the court that no judgment be rendered on the verdict of guilty returned by the jury on the 3rd day of December, 1945, whereby this defendant was found guilty of the crime of rape in the first degree, and bis punishment fixed at death, for the reason that the evidence adduced by the defendant at the trial of this case conclusively shows that the sanity of the defendant is im, doubt, and that the said defendant is presently insane.
“Wherefore, this defendant prays the court that sentence of the accused be continued until his sanity has been passed upon as provided by law.
“Cecil E. Robertson, Attorney for Defendant.”

It must be noted that this motion is unverified and not supported by affidavits or a statement as to any new evidence. It is based upon what the trial court heard and observed and the evidence, upon which the jury based its finding against the defendant, in the trial, on his plea that he was insane when the offense was committed. On the same date, the defendant also filed his motion for new trial assigning as one of the grounds therefor, “That the court erred in overruling the defendant’s motion in arrest of judgment.”

In his brief the defendant does not question the sufficiency of the evidence. Neither does he attack the court’s instructions. The court by proper instructions presented the question of sanity to the jury.. “However, if there had been error in the instructions, we would not hesitate to consider them even though no exceptions were taken thereto.” Steen v. State, 82 Okla. Cr. 141, 167 P. 2d 375-378. Nor does he assert any errors occurring during the trial, or a denial of any of his rights except those set up in assignments of error 4 and 5, as follows:

“No. 4. That the court erred in overruling defendant’s motion in arrest of judgment.
“No. 5. The court erred in overruling the motion of plaintiff in error for a new trial.”

The contentions sought to be asserted herein are apparently based upon the provisions of Title 22 O. S. A. § 1162, which reads as follows, to wit:

“When an indictment or information is called for trial, or upon conviction the defendant is brought up for judgment, if a doubt arise as to the sanity of the defendant, the court must order a jury to be impaneled from the jurors summoned and returned for the term, or who may be summoned by direction of the court, to inquire into the fact.”

It was said in Bingham v. State, supra, that under the foregoing statute the question of present insanity must be raised “either at the beginning of the trial or before judgment and sentence was pronounced upon the conviction.” In the case at bar, the question being timely raised, the next inquiry confronting the court is as to whether it has been properly raised and in such manner as to create a doubt in the mind of the court. As was said in Tuggle v. State, 73 Okla. Cr. 208, 119 P. 2d 857, 858, and approved in Bingham v. State, supra, “the court cannot act arbitrarily in the matter” but “it has the right to look to the source of the information and come to a proper conclusion from all the facts and circumstances, whether there is a doubt in his mind as to the sanity of the defendant.” Moreover, it was said in the Bingham case:

“Before a trial court impanels a separate jury to try the issue of defendant’s present sanity, under the statute, a doubt must arise in the mind of the court,” and the existence “of a doubt as to the defendant’s sanity must arise from facts and circumstances of substantial character. In other words, there must exist reasons to believe that the claim of insanity made on behalf of the accused is genuine and not simulated as a means of defeating or delaying the law’s penalties in cases where all other means of evading punishment would seem hopeless.”

In Johnson v. State, 73 Okla. Cr. 370, 121 P. 2d 625-630, wherein the question of present insanity is thoroughly discussed, this court quoted from Denton v. State, 58 Okla. Cr. 275, 53 P. 2d 1136-1139, as follows:

“The question of present sanity of an accused is directed first to the attention of the trial court. The applicable statutes are section 3212 et seq. and section 3106, Okla. Stat. 1931, 22 Okla. St. Ann. § 1162 et seq., and § 925. Under the procedure prescribed when an indictment or information is called for trial, or when, after conviction, the defendant is brought up for judgment, if a doubt arises in the mind of the court as to the present sanity of a defendant, the court must then order a trial of this question by a jury as a question of fact, as in a civil case or special proceeding. The proceeding is outlined in the sections of the statute referred to. If a claim coming from a reputable source is made, either at the beginning of the trial or at the time for judgment and sentence, that a defendant is insane at the time, with a reasonable showing or tender of proof in support thereof, it is the duty of the court to submit the question to a jury. * * *
“When the motion is made and supported by such a showing, then a legal doubt of defendant’s sanity arises, and it is the duty of the trial court to impanel a jury and to try the issue. While a trial judge may personally have no doubt of defendant’s sanity, yet if the motion and showing in support thereof is substantially as outlined, it is sufficient legally to raise a doubt. In such a case, a refusal to submit the issue to the jury is an abuse of discretion.”

It therefore becomes incumbent upon us to look at the claim made following Grayson’s conviction and before pronouncement of judgment and sentence. This court in Marshall v. Territory, 2 Okla. Cr. 136, 101 P. 139, said:

“If a statement is made to the court by credible person, or persons, under oath that the defendant is insane— a doubt is raised.”

In Wallin v. State, 84 Okla. Cr. 194, 182 P. 2d 788, 792, this court said such a motion “standing without any verification, not even by the attorney who prepared the motion, was clearly insufficient under the circumstances herein involved, to raise a doubt in the court’s mind.” Herein, it appears in an analysis of the motion in arrest of judgment that the contention of present insanity is not based on any new evidence or condition that had developed since the verdict of the jury and up to the time that the court passed on the motion in arrest of judgment and the motion for new trial. The defendant’s position appears to be an attempt to predicate a new claim of present insanity upon the old issue of insanity at the time the crime was committed, which had already been decided. We base this conclusion upon the following language quoted from the motion in arrest of judgment: “* * * for the reason that the evidence adduced by the defendant on the trial of this case co'nclusively shows that the sanity of the defendant is in doubt and that the said defendant is presently insane.”

This situation brings us clearly within the language of Bingham v. State, supra, as follows:

“Since counsel had not requested a separate trial on the question of the defendant’s present sanity, but was resting his case solely upon the question of defendant’s insanity at the time of the commission of the alleged crime, the court was justified in concluding that there was no sufficient basis for the establishment of a doubt in his mind as to the defendant’s present sanity. Although defendant did not testify, he was present during all of the proceedings and the trial court had an opportunity to observe his demeanor during the trial. Under such circumstances, we cannot sustain the contention of counsel that the failure of the court to empanel a jury to try the issue of defendant’s present sanity in the absence of a request therefor was an abuse of judicial discretion.”

In the case at bar, we are not unmindful that the defendant in his motion in arrest of judgment prays that the sentence be continued until his sanity has been passed upon as provided by law. Still, we are bound to take notice of the fact that the sole basis for said motion is the evidence adduced by the defendant at the trial. As was said in Denton v. State [58 Okla. Cr. 275, 53 P. 2d 1139], supra:

“The showing in support of a motion in arrest of judgment on the ground of present insanity must be of matters arising subsequent to the verdict,” and then said, “Under our statutes, section 3212 et seq., the correct procedure is that where a motion in arrest of judgment on the ground of present insanity is filed, it must be of a substantial character, setting out the facts relied upon to show insanity subsequent to the verdict and it should be supported by affidavits and tender squarely the issue of present insanity. It is not enough that the motion tender an issue of insanity prior to the verdict, for in that case it offers merely a retrial of an issue unsuccessfully urged before the jury. State v. Brinyea, 5 Ala. 241.”

In the Denton case there were eight exhibits attached to the motion in arrest of judgment, bearing three affidavits of medical experts (as to present sanity) and certain letters written by the defendant to his parents, and stated more proof would be offered if the question was submitted to a jury. Upon that showing this court held it was an abuse of discretion to not grant a trial by jury of the issue of present insanity. No such situation prevails here. Here we are confronted by the facts that the motion was presented by his attorney, unverified and unsupported by affidavits from any source or a tender of any new or different evidence to that which the trial court heard at the time the issues were presented to him. Under these circumstances, therefore, there was nothing for the trial court to consider which he had not already seen and heard. Under these conditions, the failure of the court to impanel a jury on the presentation of the question of present insanity raised in the motion for new trial and the motion in arrest of judgment did not amount to an abuse of judicial discretion. This case does not present a comparable situation to that involved in Sapp v. State, 83 Okla. Cr. 53, 172 P. 2d 643, 650, where the defendant raped an eleven-year-old girl and this court modified the conviction to life imprisonment and wherein this court said:

“The supreme penalty of death in the electric chair should not be imposed in this state except in the most aggravated cases * *

The case at bar is not an ordinary case. It presents a most aggravated situation. The defendant was guilty of not just one dastardly offense — the record reveals him to be a one-man crime wave. He committed one crime of sodomy, as defined in Title 21 O. S. A. § 886; two crimes of rape, as defined in Title 21 O. S. A. § 1111, subsec. 5; and then he committed two crimes of robbery with a dangerous weapon, as defined in Title 21 O. S. A. § 801.

So far as this defendant is concerned, there is not a single, extenuating circumstance in his favor. Pie has demonstrated his confirmed criminal character beyond doubt. But, even then, we are confronted by the realization that “No more solemn duty can be imposed upon the courts than the duty of protecting, and the duty of taking, human life. To take the life of a human being is an awful thing, even when it is taken by the law.” Moore v. State, 75 Okla. Cr. 222, 130 P. 2d 114, 120. For that reason, we have searched the record in an effort to find some legal ground upon which to sustain the defendant’s contention, but in vain.

Here, we are bound by the record as made. There is not the slightest bit of evidence to indicate any change in the defendant’s condition since rendition of the verdict and up to the present moment. The only evidence offered in support of the motion for new trial and the motion in arrest of judgment is that presented at the trial on the defense of insanity at the time the crime was committed. The jury heard this evidence and resolved that issue against the defendant. Moreover, in the trial of the case, not once did the defendant’s counsel raise the issue that the defendant was unable to make a rational defense to the charge by reason of present insanity. If he seriously entertained such belief at that time, he should have called it to the attention of the trial court. His present claim does not create a situation such as that created by the trial court in the Denton case, supra, wherein the claim of insanity subsequent to the verdict of the jury was amply supported by affidavits of medical experts and other exhibits, • etc. Here, it is obvious that counsel did not believe that such a condition existed. If so, we are confident he would have presented the same in the fulfillment of the oath that he took to perform righteously the obligation to his client. Moreover, it is apparent that he did not believe any additional proof of present insanity was obtainable or he most assuredly would have tendered it and would not have relied upon the proof which was presented at the trial on its merits. Suffice it to say, counsel for the defendant was as silent as the tomb, with reference to the plea of present ■insanity during the trial, as the record is equally silent as to proof of insanity subsequent to the verdict. There is not one scintilla of additional evidence to support the claim of insanity after the verdict, and not the slightest tender of additional proof, to that which the trial court had already heard. There is nothing in this case that would justify this court in interfering with the judgment and sentence. As this court held in Forrest v. State, 46 Okla. Cr. 426, 287 P. 1052, after stating the maximum penalty for first degree rape is death:

“Where the death penalty is assessed in an extreme case * * * on the verdict of the jury * * and no reason requiring the modification of the punishment is apparent, the judgment will he affirmed.”

But, even in the face of the record as here made, the law does not close the door to proof of present insanity if the same is well founded. If counsel for the defendant still believes in the present insanity of the defendant, the way is open to him to establish it, as this court said in Steen v. State, 82 Okla. Cr. 141, 167 P. 2d 375, 379:

“The defendant having received a death sentence in this case, we desire to call attention to 22 O. S. 1941 § 1005, which provides: ‘If, after his delivery to the warden for execution, there is. good reason to believe that a defendant under judgment of 'death has become insane, the warden must call such fact to the attention of the county attorney of the county in which the prison is situated, whose duty it is to immediately file in the district or superior court of such county a petition stating the conviction and judgment and the fact that the defendant is believed to be insane and asking that the question of his sanity be inquired into. Thereupon, the court must at once cause to be summoned and impaneled from the regular jury list a jury of twelve persons to .hear such inquiry.’ ”

Here, counsel for the defendant can and should, if he believes in the present insanity of the defendant, call the matter to the attention of the warden, that the defendant might be placed under observation. Further, Steen v. State, supra, says:

“Under this section, provision is made for a proper investigation as to the sanity of one prior to his execution; and as we stated in the recent case of Alfred Clarence Bingham v. State, [82 Okla. Cr. 5, 305] 165 P. 2d 646, 656: 'The Governor of the state, likewise, has power to appoint expert alienists to observe the defendant and make an inquest into his sanity.’
“We now recommend such action be taken by the Governor before the execution of this sentence is carried out.”

We make such a recommendation in the case at bar.

Finding no error, the judgment of the district court of Muskogee county, Oklahoma, is accordingly affirmed. The original time for execution of the judgment and sentence having expired due to the pendency of this appeal, it is considered, ordered, and adjudged that the judgment and sentence of the district court of Muskogee county, Oklahoma, be carried out by electrocution of this defendant on the 26 day of March, 1948.

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

       The Federal Bureau of Investigation records disclose that this defendant Lewis Grayson, was convicted in Muskogee County in 1931 of second degree rape. In 1933 he was convicted in Creek County of second degree burglary. In 1939 he was convicted in Muskogee County of larceny of livestock. He served a term in the penitentiary for each of these crimes and was released from the penitentiary in 1942. In 1945 he was convicted of the crime of rape — this time in the first degree — the crime involved in the case herein.


text:
    Ex parte LEROY WARD.
    No. A-10935.
    Dec. 3, 1947.
    (187 P. 2d 250.)
    Clem H. Stephenson, of Wewoka, for petitioner.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Jack Scott, County Atty., and Buck Cartwright, First Asst. County Atty., both of Wewoka, Seminole County, Oklahoma, for respondent.
   BRETT, J.

Leroy Ward filed a petition in this court for writ of habeas corpus alleging that he was illegally restrained of his liberty by Ray Rich, sheriff of Seniinole county, and confined in the county jail of said county.

Petitioner alleges the cause of his restraint is that he is charged with the crime of bigamy in a criminal complaint, the charging part of the complaint being in words and figures as follows:

“That at and within the County of Seminole and State of Oklahoma, on the 7 day of June, 1947, and prior to filing of this complaint, Leroy Ward, then and there being, did then and there willfully, unlawfully, knowingly and feloniously, while then and there being a married man whose lawful wife, Ida Lee Ward was then and there living, and whose marriage thereto had not then and there been dissolved, annulled or pronounced void by the Court or tribunal of competent jurisdiction and authority, did marry one Jessie Willie Doolen in the City of Van Burén, Arkansas, State of Arkansas, and thereafter, to wit: On the 7 day of June, 1947, while said wife Ida Lee Ward was then and there living and his said marriage thereto had not been dissolved, annulled or pronounced void by any Court or tribunal of competent jurisdictional authority, the said Leroy Ward did then and there unlawfully, willfully and feloniously live and co-habit with the said Jessie Willie Doolen as husband and wife in the County of Seminole, and, contrary to the form of the Statute in such cases made and provided, against the peace and dignity of the State of Oklahoma.”

The gist of petitioner’s contentions are that the foregoing complaint fails to state a cause of action for the reason that the purported crime is alleged to have been committed in Van Burén, Ark., and thus, outside the territorial limits of the State of Oklahoma; that under the Constitution of the State of Oklahoma, petitioner is entitled to be tried where the crime is committed; said alleged crime having been committed in the State of Arkansas, the State of Oklahoma is without jurisdiction or venue in the premises. To this petition the state made response, alleging that the petitioner was held in lawful custody by virtue of commitment made before a committing magistrate.

The crime of bigamy is defined in Title 21 O. S. A. § 881, as follows, to wit:

“Every person who having been married to another who remains living, marries any other person except in the cases specified in the next section is guilty of bigamy.”

In Title 21 O. S. A. § 882 are various exceptions to § 881, none of which apply herein.

It is apparent from the foregoing definition of bigamy that the act made criminal is the second marriage to another by one who has a living husband or wife, as the case may be. The crime is complete when the second marriage is solemnized. Subsequent cohabitation forms no part of the crime. Such is the holding of this court in Cleveland v. State, 41 Okla. Cr. 108, 271 P. 863, wherein the court had under consideration the precise contention advanced by the petitioner herein. In the Cleveland case, the accused was charged in Caddo county with the crime of bigamy by reason of a second marriage consummated in Grady county and subsequent cohabitation in Caddo county. This court reversed the case on the grounds that the defendant could not be prosecuted in any other county than that of Grady, where the bigamous marriage was consummated. In so holding, this court said :

“Since subsequent cohabitation under this statute does not constitute bigamy, the offense charged was not committed in Caddo county. Section 20, art. 2, of the State Constitution in part provides:
“ 'In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed. * * *’ ”
“Since the bigamous marriage was entered into in Grady county, defendant was entitled to a 'speedy and public trial by an impartial jury’ of that county. He could not be prosecuted in any other county. The district court of Cad-do county was without jurisdiction.”

To the same effect is Wilson v. State, 16 Okla. Cr. 471, 184 P. 603, wherein tbe court said:

“Tbe penal provisions of section 4971, Revised Laws 1910 [12 O. S. 1941 § 1280], are directed solely against tbe remarriage of either party to a divorce proceeding to any other person within six months immediately subsequent to the rendition of the decree of divorce. Held, the jurisdiction of a prosecution under such statute is in the county where the second marriage takes place * *

If this be true, as to such cases sought to be prosecuted in a county other than where the crime was committed, within the state, it would most assuredly follow that such an interpretation would apply as to cases where the crime was committed by the consummation of a bigamous marriage, outside the state of Oklahoma. See 10 C. J. S. Bigamy § 5, subsection (c), reading in part as follows:

“Cohabitation under the second marriage is not requisite, but the offense of bigamy is committed when the second marriage is solemnized.” See note 70, and “only the state in which second marriage was solemnized has jurisdiction” — 10 C. J. S. Bigamy, § 5, subsec. d, note 73.

Such was the situation confronting the court in Ex parte Gresham, 53 Okla. Cr. 425, 12 P. 2d 709, wherein the court had under consideration a second marriage alleged to have been bigamously entered into in Sumner county, Nans., with subsequent cohabitation in Kay county, Okla. In that case, it was held, the gist of the crime was the unlawful second marriage to another, while still married to a living spouse. Therein this court held that the State of Oklahoma was'without jurisdiction to prosecute under the bigamy statute; the marriage having been consummated in Kansas, the prosecution could only be maintained in Kansas. The Gresham case was presented to this court by petition in babeas corpus, tbe writ granted, and tbe petitioner ordered discharged.

Such is tbe situation herein involved. Here tbe complaint alleges tbe bigamous marriage was consummated in Yan Burén, Ark. Therefore, tbe action must fail for want of jurisdiction by reason of lack of venue. Tbe writ of habeas corpus is accordingly allowed, tbe action pending in Seminole county, Okla., ordered dismissed, and tbe petitioner released.

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


text:
    JOE EDWARDS v. STATE.
    No. A-10781.
    Dec. 3 1947.
    (187 P. 2d 248.)

      Laynie W. Harrod, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
   JONES, J.

The defendant, Joe Edwards, was charged by information filed in the district court of Oklahoma county, on October 23, 1945, with the abandonment and failure to provide for his minor children, Melvin Joe Edwards and Robert Lee Edwards, age three years and two years, respectively. A jury was waived, the defendant was tried, found guilty and sentenced to serve two years imprisonment in the State Penitentiary, which sentence was suspended during the good behavior of the defendant.

The sole proposition presented by the appeal is whether the evidence is sufficient to sustain the judgment of conviction. Only one witness was called by the state and no evidence was offered on behalf of the accused. Ruby Edwards testified that she was formerly the wife of the defendant. That she had secured a divorce from him and that under the provisions of the divorce decree, the defendant was to pay to her for the benefit of the minor children the sum of $10 a week. She further testified that from April, 1944, until April, 1945, the defendant paid the sum of $410, which amount was paid through the office of the county clerk to her for the benefit of the minor children. She further testified that from April, 1945, to the time of trial (November 24, 1945) the defendant had only paid the sum of $15.

The statements made by Judge Barefoot in the case of Cosby v. State, 86 Okla. Cr. 159, 186 P. 2d 844, applies to the facts as revealed by the record in this case. No evidence was offered by the defendant to show that he contributed more than was claimed by his former wife for the support of his minor children, and no attempt was made to show any justification for his conduct.

The contention of counsel for defendant that the evidence is insufficient to support the conviction is evidently based upon the testimony of the witness that the defendant paid the sum of $10 the latter part of April, 1945, whereas he was charged in the information with having abandoned his children in destitute circumstances on April 1, 1945.

The crime of abandonment of minor children and neglect, or refusal to provide for them, has been held to be a continuing offense and the date alleged in the information is immaterial. Dean v. State, 55 Okla. Cr. 356, 30 P. 2d 195; Goodart v. State, 65 Okla. Cr. 472, 88 P. 2d 911.

The statute, 21 O. S. 1941 § 853, is violated, not only when there is a complete failure to support, but also where there is a partial failure. Dyer v. State, 58 Okla. Cr. 317, 52 P. 2d 1080; Goodart v. State, supra; Cowley v. State, 65 Okla. Cr. 479, 88 P. 2d 914, 915.

In Cowley v. State, supra, this court held:

“A divorce decree, awarding custody of a minor child to the mother does not destroy the relation between the father and his child. As to the child, his legal obligation remains the same. The divorce did not release him from any pre-existing natural, moral, or legal duty to support and educate and to provide for the future support of such child.
“Where a divorced husband was ordered by the court, granting the divorce, to pay a certain sum for the support of his minor children, and where the custody of his minor children was awarded to the wife, he may be prosecuted for the children’s non-support, under the statute punishing every person who willfully neglects to provide for the . support of his children under 15 years of age.”

The judgment of the district court of Oklahoma county is affirmed.

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