source: Caselaw Access Project

author: DAVENPORT, P. J.

license: Public Domain

text:
    RALPH BUSH v. STATE.
    No. A-9342.
    March 25, 1938.
    (77 P. 2d 1184.)

      E. Hamilton and Gerald Spencer, both of Chickasha, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, P. J.

The parties in this opinion will be referred to as they appear in the trial court. The defendant, Ralph Bush, was charged with the unlawful possession of intoxicating liquor with the willful and unlawful intent then and there on the part of the said Ralph Bush to barter, sell, give away, and otherwise furnish said liquor to others. The defendant was tried, convicted, and sentenced to pay a fine of $200 and costs and to be imprisoned in the county jail for 120 days. From the judgment and sentence, the defendant appeals.

Before the case was called for trial, the defendant moved the court to suppress the evidence in the cause for the reason that said seizure and search were made without authority of law and in violation of the constitutional rights of this defendant. Testimony was taken on the motion of the defendant to suppress the evidence. The defendant Bush testifying in his own behalf that on the night of December 5, 1936, Ben Foreman, Claude Sweeney, and J. W. Hite came up to where he was; “I drove up in my car, after dark, I guess about 7 o’clock, and a car was coming up the street about two or three blocks away; I got out of the car and was sitting on the porch; I did not know at the time the officers were in the car; they drove up to the corner and made a ‘U’ turn and came back and looked in my car. They raised the turtle back first and then looked in the seat and seized eighteen pints of whisky, and arrested me.”

On cross-examination witness stated:

“The officers did not pass my car prior to the searching of it; at the time I did not know it was officers; they were three or four blocks down the street and came on up and turned at the corner, made a ‘U’ turn and came back. I did not take a container of liquor to the house out of my ear; there was no one with me; I had parked my car before the officers drove up; the officers did not follow me, I came around from the north and they came from the south; they told me they had been following a car and I cut in between them.”

Ben Foreman, a deputy sheriff, was called by the state and testified in substance that:

“Some officers and myself searched the car of the defendant on December 5, 1936, for liquor. We were passing his house when he got out of the car and started to the house with some kind of a package, we thought it was whisky. I did not know it was whisky, it was a package of some kind; we drove to the corner and came back. In the meantime he had set down whatever he had, if he had anything, and had shut the car and was sitting on the porch. We drove up and pulled in there and I went around to the east side of the car; his car was headed east, the porch was south of the car ,* I talked to him but I don’t know what I said. Shortly after I got there Rlaph just said himself, ‘Well, you got me this time.’ Q. Was that before the search? A. It was before I had seen any liquor myself. Q. Did you say anything to him about searching his car before you did ? A. I don’t know as I did. However, after a bit I looked in the car door and saw the whisky sitting in the seat; three packages of it.”

The witness further stated it looked like whisky:

“It was done up in packages with plain wrapping paper and twine around it, like all whisky is. I opened the door, and I think about that time Mr. Hite and Claude Sweeney was opening the turtle back; the containers were in the front seat of the car; we did not make a search for the package we saw him carry into the house.”

On cross-examination witness stated the packages were wrapped up. “No, sir, I did not see the brands.”

J. W. Hite testified:

“I was undersheriff of Grady county, on the 5th day of December, 1936; in company with Ben Foreman and Mr. Sweeney we searched this defendant’s car; we were going up past his house from the south, he got out of the car and started to the house with a bundle, and I don’t remember who it was said there he is now unloading some liquor, any way we turned our car and drove back; Mr. Sweeney and Ben Foreman was in the front and they got out first; I went around to the turtle back; Mr. Foreman found the liquor; I did not have any conversation with the defendant before I searched the turtle back of his car; Mr. Foreman had some conversation with him. I saw the whisky through the glass in the door, as I remember, the glass was up. The only way I could tell it was whisky it was wrapped up in the usual six packages, wrapped like all of it is.”

On cross-examination witness stated:

“It was about 7 o’clock, it was getting dark; it was light enough I could see in the window, yes, sir.”

The motion of the defendant to suppress the evidence was overruled and the defendant excepted. A jury was impaneled and the trial proceeded on the charge against the defendant. The first witness called in behalf of the state was Ben Foreman, who stated he had occasion on the 5th of December, 1936, to arrest the defendant at his home on South Third street.

“I could not tell the number of his house; we were passing his house coming from the south, Mr. Hite and Claude Sweeney were with me, when we saw the defendant Ralph Bush starting toward the house with something under his arm a package of some kind. We drove past the house and came back and drove in the driveway behind his car; when we drove up he was sitting on the porch with his car doors closed. We drove in and stopped and I got out and went around on the right side of the car; there were some words said prior to his statement, which I believe was this, ‘Well, you got me this time.’ After he made that statement I looked in the car and saw three packages, I could tell by looking at them the packages contained whisky. Mr. Sweeney went around to the other side of the car and raised the turtleback; there was other conversation but I don’t remember what the conversation consisted of. We found 18 pints of whisky in the car.”

On cross-examination witness stated:

“We did not have a search warrant. Q. You testified here last Saturday that the defendant said, ‘You got me now boys.’ When did he make that statement, before you went to the car or after? A. It was about seven o’clock in the evening the best I can remember. The sun went down quite a bit earlier that evening. Q. You looked in the car did you? A. Yes, sir, with a flashlight. Q. Wasn’t that making a search? A. We were looking for whisky. Q. You were making a search and you did not have a search warrant? A. No, sir. Q. In this case you compared your notes with Mr. Hite? A. No, sir, not today. Q. You did Saturday? A. No, not me, it was Mr. Hite comparing notes with me.”

J. W. Hite, called on behalf of the state, testified in substance the same as the witness Foreman, except he did not hear the conversation between Foreman and the defendant, and did not know there was any liquor in the car until his attention was called to it by Mr. Foreman. They did not have any search warrant to search the defendant’s car.

The defendant has assigned the following errors alleged to have been committed by the trial court:

“1. The court erred in overruling a motion to suppress the evidence.
“2. That the court erred in admitting incompetent, irrelevant and immaterial testimony.
“8. That the evidence is wholly insufficient to show that the defendant committed a public offense against the laws of the state of Oklahoma.
“4. That the court erred in not directing the jury to return a verdict of not guilty pursuant to the motion and request of the defendant filed at the close of all the evidence.
“5. That the seizure of the whisky in this case was absolutely illegal and in contravention of the constitutional rights of the defendant; that no search warrant was ever issued as required by law.”

The only error it is deemed necessary to consider is the first assignment, wherein it is alleged that the court erred in overruling the motion to suppress the evidence.

The testimony on the motion to suppress as well as in the trial of the case shows that the defendant had driven to his home about 7 o’clock in the evening, stopped his car, and went toward his house with what the state witnesses claim was a bundle under his arm; the three state witnesses drove up the street, turned and came back and drove in and upon the premises of the defendant on the driveway in the rear of his car. The witnesses for the state admit they had no warrant to search his premises or his car, and there is nothing in the record to show they had a warrant for the arrest of the defendant. The state witnesses admit the defendant was at his home when they drove in and upon the premises on the driveway in the rear of his car; that they got out of the car and one witness went to the turtleback and raised it; another went around to the other side of the car and raised the hood; the witness Ben Foreman makes an effort to try to justify the unlawful act of the officers going onto the premises of the defendant and searching by saying he thinks the defendant said, “You got me this time boys,” or words to that effect. The car doors were closed and the defendant was peaceably sitting on his porch when these officers went upon his premises and proceeded without any charge or reason whatever to search his car, one searching one part and another another part of his car. They do not attempt to say the defendant gave them permission to search the car or they told him they were going to search it, but willfully and unlawfully proceeded to make the search and found a quantity of whisky. Had to use a flashlight to see into the car before they could tell what was in the car.

Ballentine’s Law Dictionary, p. 117, defines a “search” as follows:

“A search implies a quest by an officer of the law. The quest of the officer acts upon the things themselves, it may be secret, intrusive or accomplished by force.”

24 Ruling Case Law, p. 717, defines an “unlawful search” in part as follows:

“An unlawful search is an examination or inspection without authority of law of one’s premises or person, with a view to the discovery of stolen, contraband or illicit property, or for some evidence of guilt to be used in the prosecution of a criminal action.”

The right of an individual to be exempt from such searches is guaranteed by the Fourth Amendment to the Constitution of the United States, and the substance of the amendment is incorporated in the Constitution of the several states.

The record in this case shows the officers making the search entered upon the curtilage of the home of the defendant for the purpose of making a search of the defendant’s car. The officers drove into the driveway on the curtilage of the defendant’s home; they did not have a warrant for defendant’s arrest or to search his car or his home; they were trespassers from the moment they left the street and entered upon the curtilage of the defendant’s home. They admit they had not seen the defendant commit any offense and could not see what was in his car; they testify the defendant drove up to his home and got out of his car with a package under his arm. The officers did not know what it contained. Have we reached a point in law enforcement that a man cannot peaceably go to his home and take a bundle or package from his car to the house without the officers of the law insulting and outraging him by driving upon his premises and searching his car? We think not. The home of an individual is his castle, and anyone, be he an officer or private citizen, who enters and trespasses upon the same without lawful authority, does so at his peril. It is difficult to understand why men sworn to enforce the laws of our state will violate the law in an effort to secure evidence against an individual. In this case two deputies and a deputy United States marshal willfully violated the law and trespassed upon the rights of a citizen of this state, be he guilty or not of the crime charged.

This court has so often passed on the question involved in this case that it seems a waste of time to cite authorities. In Strong et al. v. State, 42 Okla. Cr. 114, 274 P. 890, this court in the first paragraph of the syllabus stated:

“The search of a car without warrant of arrest or search warrant or knowledge by the officer that it contained whiskey, held illegal, and evidence obtained should be excluded upon timely objections.” Britton v. State, 34 Okla. Cr. 391, 246 P. 666.

In Condron et al. v. State, 31 Okla. Cr. 130, 237 P. 465, the court said:

“It has been repeatedly held by this court that, where the offense is not a felony, an officer cannot arrest without a warrant, unless the offense was committed or attempted in his presence, and that, where the officer does not know of the act constituting the offense, it is not committed in his presence.” Keith v. State, 30 Okla. Cr. 168, 235 P. 631.

It is not deemed necessary to extend this opinion further, as the record clearly shows all the evidence introduced by the state was secured by an unlawful search and seizure. The court erred in overruling the motion of the defendant to suppress the evidence, and in overruling his motion for a new trial.

There being no competent evidence to sustain the verdict and judgment, the case is reversed and the case ordered dismissed.

DOYLE and BAREFOOT, JJ., concur.


author: PER CURIAM.

text:
    ROY BAKER v. STATE.
    No. 9325.
    April 1, 1938.
    (78 P. 2d 320.)
    For prior opinion, see 64 Okla. Cr. 10, 76 P. 2d 409.
   PER CURIAM.

The petition for rehearing calls attention to the fact that the defendant was given a sentence of 35 years in the penitentiary instead of the 15 years as stated in the original opinion. In the companion case of Roy Tiner v. State, 64 Okla. Cr. 13, 76 P. 2d 411, decided by the court on February 11, 1938, the defendant was given a sentence of 15 years. In that case there was no evidence showing any previous conviction of the defendant. His participation in the robbery consisted of being present, and aiding and assisting in that way only. In this case the defendant admits having heretofore served two terms in the penitentiary, and that he could not count the times he had been arrested. Under the facts as presented, we are of the opinion that justice would be done by modifying the sentence in this case to a term of 25 years, and it is so ordered, and the motion for rehearing is overruled.


author: DOYLE, J.

text:
    MOSS PARKINSON v. STATE.
    No. A-9343.
    April 1, 1938.
    (78 P. 2d 321.)

      E. E. Ammons, Hazen Green, and Otho Green, all of Eufaula, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case, filed in the district court of McIntosh county, in substance charged that Moss Parkinson and John Thompson, in said county and state on or about the 27th day of September, 1935, then and there acting together, with intent to do bodily harm, did feloniously and without justifiable or excusable cause commit an assault upon one L. E. Martin, with and by means of a certain dangerous weapon, to wit, a wooden club about 2Yz feet long and about 2 inches in diameter, and did beat, bruise, and injure the said L. E. Martin about the head and body.

On his separate trial the jury returned a verdict finding the defendant Moss Parkinson “guilty of assault' with a dangerous weapon, as charged in the information,” but were unable to agree on the punishment. Motion for new trial was duly filed and overruled. December 4, 1936, the court rendered judgment and sentenced the defendant to be confined in the state penitentiary for the term of 18 months.

To reverse the judgment, the defendant appealed by filing in this court a petition in error with duly certified transcript of the record attached.

It appears from the record that on the 28th day of September, 1935, a complaint was filed before J. L. Corbin, justice of the peace, district No. 13, said county, charging Moss Parkinson and John Thompson with the crime above charged, and said defendants waived preliminary examination and were held to answer to the next term of the district court of said county, commencing on the first Monday in January, 1936. The transcript of said justice of the peace in said case was duly filed in said district court and no information was filed in said court until November 12, 1936, or more than a year after the preliminary examination and commitment thereon.

Upon arraignment the defendants filed their motion to dismiss, and that they be discharged for want of prosecution at the next term of the district court after the preliminary examination was had, thus depriving the defendants of their constitutional right to a speedy and public trial, and in violation of section 2871 of the Code of Criminal Procedure, St. 1931, 22 Okla. St. Ann. § 811.

In support of the motion to dismiss, the defendants offered the transcript of the proceedings had before the committing magistrate, and the transcript of the same, duly filed in the district court, and called Ernest Kirby, court clerk of said county, who testified that there has been no order of the court calling for a jury term for the trial of criminal cases at any time from November, 1934, until the time the present term of court was called.

The state, to show good cause for the delay in filing the information, called Roy White, who testified that he was the duly elected, qualified, and acting county attorney of McIntosh county, on November, 1934, and continued in such capacity until the 24th day of November, 1936, and during that time there was no term of criminal court from December, 1934, until now, for the reason there were not sufficient cases accumulated to justify the calling of a jury.

He further testified:

“I will ask you about how many people charged with criminal offenses were sent to the penitentiary on pleas of guilty during that time, approximately? A. Oh, I guess 150 or 200, a lot of them. Q. That eliminated, by reason of the pleas of guilty, the necessity for calling a criminal term. A. Yes, sir.”

The court overruled the motion.

The Constitution guarantees a speedy and public trial to the accused in all criminal prosecution. Section 20, Bill of Rights.

The statute, section 2871, Code of Criminal Procedure, 22 Okla. St. Ann. § 811, provides:

“When a person has been held to answer for a public offense, if an indictment or information is not filed against him at the next term of court at which he is held to answer, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.”

The section above quoted was enacted in the light and under the operation of section 20, Bill of Rights.

The authorities uniformly hold that such statutes are enacted for the purpose of enforcing the constitutional right, and that they constitute a legislative construction or definition of the constitutional provision. Eubanks v. Cole, 4 Okla. Cr. 25, 109 P. 736; Culver v. State, 11 Okla. Cr. 4, 141 P. 26.

In the case of Petitti v. State, 11 Okla. Cr. 234, 145 P. 305, this court said:

“Held, that the dereliction on the part of the magistrate, and the want of time and press of business on the part of the county attorney, is not ‘good cause to the contrary,’ within the meaning of that phrase as used in said section.”

In the opinion we said:

“Under the facts as shown, the court below should have granted the defendant’s motion, and dismissed the prosecution against him. The want of time and press of business on the part of the county attorney is not ‘good cause to the contrary,’ within the meaning of that phrase as used in said section. The bond mentioned in the county attorney’s reply was for the appearance of the defendant at the next term of said court, and we know of no law that requires the defendant or his attorneys to call the county attorney’s attention to the dereliction of the committing magistrate.”

In the case of Day v. State, 50 Okla. Cr. 180, 296 P. 987, 988, this court held:

“When a person has been held to answer for a public offense by a committing magistrate, and no indictment or information is filed against him for more than one year, the court must order the prosecution to be dismissed, unless good cause to the contrary is shown.”

Judge Edwards, speaking for the court in the opinion, said:

“In the case before us, the record is not as favorable for the state as in the Petitti Case. It can hardly be argued that one charged with crime and held at a preliminary examination for action of the district court is required to demand that an information be filed against him in order to secure his constitutional right to a speedy trial. There is a difference between a demand for a trial by an accused on bail after he has been formally charged in a court where a final trial can be had and a case such as the instant case, in which no information has been filed upon which a final trial can be had. As in the instant case, there was no charge pending upon which a trial could be had and consequently a demand for trial could be made. Where no attempt to show good cause is made, such a delay in filing information as appears from the record before us is inexcusable. We must follow the plain mandate of the law.”

Upon the record before us, we are constrained to think that the reply of the county attorney to the motion to dismiss was in effect a confession that the motion was well founded.

It follows from what has been said that the court erred in overruling the motion to dismiss.

For the reasons stated, the judgment of the lower court is reversed and the cause remanded with direction to dismiss the prosecution and discharge the defendant.

DAVENPORT, P. J., and BAREFOOT, J., concur.


text:
    GEORGE JAMES v. STATE.
    No. A-9345.
    April 14, 1938.
    (78 P. 2d 708.)

      Joe Adwon, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, who was the defendant in the trial court, was by information charged with selling intoxicating liquor, was tried, convicted, and sentenced to pay a fine of $50, and to be imprisoned in the county jail for 30 days.

The testimony on behalf of the state shows that Melvin Taylor, Tom E. Lever, and A. J. Spooner, on November 20, 1936, went to the Broadway Circle Buffet; the officers drove up in front of the place and Melvin Taylor, who was accompanied by Tom Lever, H. H. Smith, and Dan Kean, stated:

“I got out and went into the building, a man came up and asked me what I wanted and I asked if I could get a pint of whisky, and he told me to drive to the back and he would be out; in a short while a man came out and delivered a pint of whisky to me and accepted $1.50.”

The other parties were sitting in the car when the man came up, and all of the officers in the car identified this defendant as being the man who brought the whisky to the car and received the money. Later, a complaint was filed against him, and he was arrested.

The defendant denies he was at the buffet at the hour stated by the officers, and claims he only worked in the daytime, and was not on duty at night.

In the trial of the case two or three other parties were brought in to see if the officers could identify either of them as being the man from whom they bought the whisky, but they could not; each of the officers stating positively the defendant was the man who sold them the whisky; even though it was dark they identified the defendant positively from the lights on the street or in the building.

The testimony is conflicting and the defendant denies the statements of the officers are true.

The defendant has assigned nine errors alleged to have been committed in the trial of his case, and has at length argued some of them.

The defendant, in his seventh assignment of error, insists that the court committed reversible error in permitting the state to introduce municipal court cases that were on appeal to the county court of Oklahoma county, and which cases in the municipal court were filed after the case in which the defendant was being tried. The defendant took the stand in his own behalf and was asked by his counsel the following questions:

“Q. How long have you lived in Oklahoma City? A. About ten years. Q. You have not been convicted of any crime, have you, George? A. No, sir.”

After the state had announced closed, the court granted the state permission to open its case and in rebuttal call the court clerk who testified, over the objection of the defendant, that he was deputy court clerk of Oklahoma county; that he had possession of the files in No. 7052, which was then pending in the county court of Oklahoma county, the defendant being George James, and that this case originated in the city police court, that it was in the county court on appeal as shown by the transcript where a fine of $19 and costs had been imposed upon the defendant, and that the charge was possession of whisky; and No. 7093 was another case pending in the county court against George L. James, the charge against the defendant was possession of whisky; the transcript shows he had been fined $19 and costs in that case.

The defendant alleges it was reversible error for the court to permit the state to reopen the case and introduce this testimony, as the cases were still pending, and would have to be tried de novo in the county court; that the charges in the cases pending were at a different time than the one- in this case, and being in no way whatever connected with a single sale of intoxicating liquor in this case, insisting that where the information charged a single sale of intoxicating liquor by a named person on a certain date, -and where no question of knowledge, design, intent, or mistake or other such element entering into the issue to make such evidence admissible, the admitting of the evidence over the objection of the defendant of proof of other alleged possessions at a different time and place was error. Ruffin v. State, 38 Okla. Cr. 343, 261 P. 378, and authorities therein cited.

It would be conceded that the action of the court in admitting evidence of other cases against the defendant filed subsequent to the charge in this case, having no connection whatever with the charge in this case, would be reversible error but for the fact that the defendant took the witness stand in his own behalf and stated that he had not been convicted of any other crime.

It is clear from the ruling of the court in permitting the case to be reopened and the state to offer in rebuttal the evidence complained of as to other cases of conviction against the defendant in the municipal court and on appeal to the county court, the court permitted the case to be reopened on the theory that the state by rebuttal could contradict the evidence of the defendant which would affect his credibility before the jury.

Section 268, O. S. 1931, 12 Okla. St. Ann. § 381, is as follows:

“No person shall be¡ disqualified as a witness in any civil action or proceeding, by reason of his interest in the event of the same, as a party or otherwise, or by reason of his conviction of a crime; but such interest or conviction may be shown for the purpose of affecting his credibility.” Strickland v. State, 46 Okla. Cr. 190, 284 P. 651.

In Forester v. State, 36 Okla. Cr. 111, 252 P. 861, in the fifth paragraph of the syllabus the court said:

.“A defendant, by availing himself of the privilege of testifying in his own behalf, thus waives his constitutional privilege and has all the rights and is subject to the same rules of cross-examination and impeachment as other witnesses.”

That the credibility of a witness, including the defendant if he offers himself as a witness, may be attacked by showing conviction of crime is too well settled to require argument. Duncan v. State, 40 Okla. Cr. 347, 268 P. 998; Donahue v. State, 38 Okla. Cr. 87, 259 P. 179.

In Strickland v. State, 46 Okla. Cr. 190, 284 P. 651, 653, in the body of the opinion the court stated:

“The question presented is the right of the state to show that the defendant had been convicted of a crime under the terms of a city ordinance, where the same was an offense under the state law. This court has repeatedly held that where the defendant has been convicted of a crime that fact may be shown. Davis v. State, 15 Okla. Cr. 386, 177 P. 621; Whitlow v. State, 24 Okla. Cr. 307, 218 P. 162; Smith v. State, 34 Okla. Cr. 396, 246 P. 1104.”

In Treadway v. State, 30 Okla. Cr. 239, 235 P. 929, 930, this court stated:

“Although he may have appealed from a judgment of conviction to this court, the fact of his former conviction of a crime remained, and the ruling of the court in striking out the question and answer was more favorable to the defendant than the law required.” Newcomb v. State, 23 Okla. Cr. 172, 213 P. 900.

The court did not err in reopening the case and permitting the state to prove by the records of the county court that the defendant had been convicted of crimes in the municipal court of the city of Oklahoma City, and that the cases were now on appeal in the county court of Oklahoma county.

After a careful examination and study of the other errors complained of, we hold they do not possess sufficient merit to warrant this court in reversing the case. The proof, though conflicting, is amply sufficient to sustain the verdict of the jury. The defendant was accorded a fair and impartial trial. The court correctly advised the jury as to the law applicable to the facts. There are no errors in the record which would justify this court in reversing the case.

The judgment of the trial court is affirmed.

DOYLE and BAREFOOT, JJ., concur.


text:
    ROY CLARK v. STATE.
    No. A-9349.
    April 14, 1938.
    (78 P. 2d 710.)
    W. C. Henneberry, of Tulsa, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

The information in this case, filed in the district court of Tulsa county, August 12, 1986, in substance charged that Wade Tunnell and Roy Clark, on the 16th day of June, 1936, in said county, did unlawfully, fraudulently, and feloniously take, steal, and carry away, without the consent of the owner thereof, $431 good and lawful money of the United States, the personal property of one Yassie Tyler, with the unlawful and felonious intent on the part of said defendants and each of them to deprive the owner thereof and convert the same to their own use and benefit.

On his separate trial the jury returned their verdict finding the defendant Roy Clark guilty as charged in the information and assessed his punishment at confinement in the state penitentiary for a term of two years. From the judgment rendered in pursuance of the verdict, on December 14, 1936, an appeal was taken by filing in this court on June 11, 1937, petition in error with case-made.

The assignments are that the verdict is contrary to law and is not sustained by sufficient evidence, and that the court erred in overruling the defendant’s motion for a new trial.

No brief has been filed, and no appearance made in behalf of plaintiff in error in this court.

Without going into a detailed statement of the state’s evidence, it shows that Vassie Tyler, a farmer and stock-man, living in Osage county, in the month of June was in the town of Hominy, there met a man he knew as Buck Mitchell, who told him that he knew some parties who had some good bonds they would sell cheap. A few days later the defendant Wade Tunnell came to see Tyler at his home and told him he could get a considerable amount of Liberty bonds that were not “hot,” but that the parties who had the bonds were “hot,” that the party who had them would ¡sell and deliver them to Tyler for $215 for each $1,000 bond; it was also understood that some of Tyler’s friends would put up money to buy some of these bonds.

On the 15th day of June, Wade Tunnell came to Tyler’s home, and after talking the matter over with Tyler and Lee Coffey, who was there, it was agreed that they would go to Sand Springs and make the deal there. Tunnell drove to the Smith Tourist Camp, near Sand Springs; there Tyler and Coffey met the defendants Roy Clark and Tunnell, and Tyler insisted on seeing the bonds; the defendants Tunnell and Clark insisted upon seeing the money. Tyler did not have the money with him, so they arranged to meet again at Smith’s Tourist Camp the next afternoon; Tyler went to the bank in Hominy and got $431, Coffey went to Cleveland and got $320; when they returned to Smith’s Tourist Camp, the defendant Tunnell was seated in a car, parked before a cabin. Tyler in the cabin asked to see the bonds, the defendant Clark asked to see his money, so Tyler and Coffey counted their money out on a table, the defendant Clark picked it up as if to count it, then ran out and jumped in the car with Tunnell and they drove away. Tyler had the license number of the car and found that Tunnell was the owner. About two weeks later the defendant Clark was arrested in Tulsa. He gave his name as Wilson, but was positively identified by Mr. Tyler as the defendant Roy Clark.

As a witness in his own behalf, Roy Clark testified that he lived at Barnsdall; that he first met the complaining witness Tyler at his home in June, 1936; that Wade Tunnell about a week previous asked him if he knew where he could get some “hot” bonds cheap, and told him that this man, Tyler, wanted to buy some “hot” bonds, and he told him he had met a man who had some; Tunnell said, “Get in the car and go out with me,” Mr. Tyler is in the market for some of them and witness would have a chance to make $20 or $25; so they drove out to Mr. Tyler’s place, near Prue, and Tun-nell introduced witness to Mr. Tyler, and said, “Here is the man who says he can get the bonds for you.” Mr. Tyler said, “Well, if you can get me some government bonds at that price, $215 a thousand, I can handle them.” That witness then went to Tulsa to meet the man that had the bonds and he said he could sell the man the bonds. They then drove back to the Smith Cabins, just across the river from Sand Springs. Mr. Tyler said, “I didn’t bring the money with me”; it was then agreed that the next day Mr. Tyler would meet them at the post office in Sand Springs. He was there with Tunnell and met Mr. Coffey and Mr. Tyler there. Tyler said, “I didn’t bring the money,” and he told him he could not handle the bonds unless he had the money to take to the man. Tyler then said, “I will get the money.” Witness said, “All right, meet me over there at the Smith’s Cabins.” That afternoon they met there. Tyler said, “I am ready to buy the bonds if you can get them for me.” Witness said, “All right, you understand I will have to have the money to go in there and get them, I am just working as an agent between you two gentlemen.” Mr. Tyler counted and laid his money on the table; witness said, “I want to be sure just how much money you have got here,” and picked it up and counted it, then witness wrote an agreement and signed it. Roy Gains and Mr. Tyler signed it. Witness then took the money and went out and got in Tunnell’s car and they drove to Tulsa to make this transaction. There they met a man that Tunnell introduced to him as Blackie Prince, they were on the mezzanine floor of the Mayo Hotel. Witness told Prince he was ready to buy the bonds. Prince said, “The gentleman that has these bonds is on the fourth or fifth floor, but he would not let him see him under any consideration,” and said, “if you will give me the money I will go up there and get you the bonds and bring them back and deliver them to you here;” that he gave Prince the money; that he has not seen Prince since; that he had not informed Mr. Tyler as to what happened.

No other witness testified on the part of the defense.

At the close of the evidence a motion was made by the defendant for a directed verdict of acquittal on the ground “that the state has failed to prove sufficient allegations to sustain the information,” which was overruled. Exception taken.

Where no briefs are filed or oral argument made, we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in its rulings on the admission or exclusion of evidence.

In this case we have examined the record and find it free from substantial error. As to the sufficiency of the evidence to sustain the verdict, we think there can be no reasonable doubt. The jury evidently did not believe the explanation made by the defendant. The instructions given by the court, to which no objection was made or exception taken, fully covered the law of the case.

It is apparent from the record before us that the defendant had a fair and impartial trial and was properly convicted.

The judgment of the trial court is therefore affirmed.

DAVENPORT, P. J., and BAREFOOT, J., concur.


author: BAREFOOT, J.

text:
    ROY RILEY v. STATE.
    No. A-9240.
    April 14, 1938.
    (78 P. 2d 912.)

      Eaton & Wheeler, of Okmulgee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and James K. Eaton, Co. Atty., for the State.
   BAREFOOT, J.

The defendant was charged by information in Okmulgee county with the crime of larceny of an automobile, was tried, convicted, and sentenced to serve a term of five years in the reformatory at Granite, and has appealed.

The evidence reveals: That the Highway Motor Company of Okmulgee was operated by Joe Bryant and Cy Shinn; that A. L. Pursley was an automobile salesman working for said company; that the defendant, Roy Riley, resided near Henryetta, Okla.; that Mr. Pursley had Mr. Riley, who was a World War veteran, expecting to secure a bonus, as a prospect for the purchase of an automobile; that just prior to April 12, 1936, he called at defendant’s home and left word for him to come to Okmulgee, and defendant went to the place of business of the Highway Motor Company for the purpose of consummating the deal for the purchase of a V-8 Ford automobile for $455; that a down payment of $73.75 was to be made and monthly payments of $15 per month were to be paid until he received his bonus, when the balance was to be paid. Defendant consummated this deal on July 12, 1936, which was on a Sunday, and just before the deal was closed he informed the owners of the Highway Motor Company, to whom the matter was referred by the; salesman, that he did not have the cash to make the down payment; that it would be necessary for him to go to Henryetta to make arrangements. Mr. Pursley accompanied him; that they made several stops and defendant reported that he had no luck and that he had only $55 in the bank at Henryetta. Defendant then asked if it would be all right to give a check. He was informed by the salesman that it would be up to Mr. Bryant and Mr. Shinn, proprietors of the Highway Motor Company. They agreed to accept his check for $48.25, payable on the fund he represented as being in the bank at Henryetta, and accepted his check for $25, dated two days later, with the promise that the money would be placed in the bank to meet this check. He at the same time executed a check for $5 to Mr. Pursley, who gave him the money thereon as expense money, and defendant advised that it would leave him $1.25 in the bank. Defendant then executed a contract for the purchase of the automobile on the installment plan. At the time of the purchase of the car defendant further represented that he was employed at the Eagle Picher Smelter Works at Henryetta, and had been working there two years. The car was immediately turned over to the defendant. The checks were presented and turned down. The defendant had no account at the bank at Henryetta, and had not had any there. The defendant was not in the employ of the Eagle Picher Smelter Works. When these matters were revealed, the finance company refused to accept the paper from the Highway Motor Company. A search was at once started to locate the defendant, and he could not be found. Cards were gotten out by the company and a reward for the arrest of defendant and return of the car was offered. About a month later he was arrested in Fort Worth, Tex., and the car was recovered from his possession. The 1986 Oklahoma license had been removed from the car and a 1986 Texas license placed thereon. Defendant was immediately returned to Okmulgee, and was there charged by information with the theft of an automobile; was tried, convicted, and sentenced to serve a term of five years in the reformatory at Granite.

Defendant cites seven assignments of error, but in his brief relies upon two:

“First: That the evidence is insufficient to sustain a conviction, and
“Second: The court erred in failing to grant a continuance requested by defendant.”

The general larceny statute of this state, Oklahoma Statutes 1931, § 2253, Okla. St. Ann., tit. 21, § 1701, p. 647, provides:

“Larceny is the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof.”

The statute for the theft of an automobile is Oklahoma Statutes 1931, § 1891, Okla. St. Ann., tit. 21, § 1720, p. 688, and reads as follows:

“Any person in this state who shall steal an automobile or other automotive driven vehicle shall be guilty of a felony, and upon conviction shall be punished by confinement in the state penitentiary for a term of not less than five (5) years, nor more than twenty (20) years.”

It was under this last statute that the defendant was charged. This statute was enacted in 1919 and this court, in the case of Jackson v. State, 22 Okla. Cr. 338, 211 P. 1066, has held the same constitutional. It is also held in this case that by the enactment of this statute automobiles and automotive-driven vehicles are withdrawn from the operation of the grand larceny statute of this state. Adams v. State, 25 Okla. Cr. 298, 220 P. 59; Gilbert v. State, 23 Okla. Cr. 352, 214 P. 936.

The information in this case was sufficient. See Copperfield v. State, 37 Okla. Cr. 11, 255 P. 590. In the case of Roach v. State, 23 Okla. Cr. 280, 214 P. 563, 564, it is said:

“The rules of pleading relating to the larceny of automobiles and the larceny of livestock are the same under our practice.” '

In the case of Underwood v. State, 23 Okla. Cr. 119, 212 P. 1010, 1011, it is said:

“By fraud and stealth, * * * with the felonious intent * * * to permanently deprive the said owner thereof.”

This was a sufficient averment in the information for the stealing of livestock.

It will be noted that the general larceny statute uses the words “fraud and stealth”; the automobile statute and the statute with reference to the larceny of livestock use the word “steal.” This court has held in the case of Derrisaw v. State, 29 Okla. Cr. 377, 234 P. 230, that:

“In order to constitute the offense of stealing, there must be a wrongful taking, with a felonious intent on the part of the taker to deprive the owner thereof and to convert the property taken to the taker’s own use.”

The statute with reference to stealing domestic animals in this state, Oklahoma Statutes 1931, § 2267, Okla. St. Ann., tit. 21, § 1716, p. 677, uses the same word “steal” as does the automobile statute. In the case of Hughes v. Territory, 8 Okla. 28, 56 P. 708, 710, Justice Burwell of the territorial Supreme Court, in an elaborate opinion, distinguished between the terms of the larceny statute of this state and this special statute. The court said:

“Taking into consideration the rule of construction as enunciated by Mr. Bishop, we must conclude that when the Legislature used the word ‘steal’ in the act of 1895, under which the defendant was indicted, tried, and convicted, it had in mind the crime of stealing or larceny as it existed at the common law, and not larceny as defined by our Statutes of 1893.”

The reasoning in this case has been followed by this court in the case of Crowell v. State, 6 Okla. Cr. 148, 117 P. 883, and applies with equal force to the statute with reference to the theft of automobiles. By the use of the word “steal” in this statute the Legislature had in mind the crime of stealing or larceny as it existed at common law, and not as defined by the general statutes. At common law larceny was defined as the wrongful or the fraudulent taking and carrying away, by any person, of the personal goods of another, from any place, without any color of right, with a felonious intent to convert them to the taker’s own use, and making them his own property without the consent and against the will of the owner.

It is contended by defendant in this case that, under the evidence as above set forth, he is not guilty of larceny, but that if guilty of any crime it is either embezzlement or obtaining property under false pretense. In the case of Bivens v. State, 6 Okla. Cr. 521, 120 P. 1033, this court very clearly distinguishes between the crime of larceny and embezzlement, and holds that where larceny is committed by fraud, or whether it is embezzled is determined with reference to the time when the fraudulent intent to convert the property to the taker’s own use. In larceny, the criminal intent must exist at the time of the taking of the property, and it must be taken with an intent to deprive another thereof. But if the receiver takes the property as a bailment, with the intention at the time to comply with the terms of the bailment, or to conform to the owner’s wishes concerning the property, and he afterwards fraudulently appropriates the property to his own use, intending to deprive the owner thereof, the crime is embezzlement. Under the facts in the case at bar, it will be clearly seen that the crime committed here was not embezzlement.

The distinction between “larceny” and “false pretense” is not so easily drawn. As stated in 17 R. C. L. § 14, p. 14:

“There is, to be sure, a narrow margin between a case of larceny, and one where the property has been obtained by false pretenses. The distinction is a very nice one, but still very important. The character of the crime depends on the intention of the parties. The intention of the owner to part with his property is the gist and essence of the offense of larceny, and the vital point on which the crime hinges, and is to be determined.”

On the other hand, the same authority announces that it is the rule of the common law that if the owner of the goods parts “voluntarily” with both the “possession” and “title” to the alleged thief, not expecting the goods to be returned to him, or to be disposed of in accordance with his directions, there the taking or conversion amounts to larceny for the reason that no necessary trespass is shown in the taking, and this rule applies although the owner may be induced to part with the title through the fraud and misrepresentation of the thief. It will be noted that the words “voluntarily,” and “possession,” and “title” are all used. Can it be said that a defendant secures the possession of property voluntarily when by means of a false token, such as the giving of a check upon a bank in which he has no funds, and had not had any account therein, and upon the direct statement that he had the funds therein at the time the check was given, and the further statement that he was in the employ of a certain company known to be a responsible company, and that he had been in their employ for a period of two years, all of which statements were false? It does not occur to this court as sound argument to say that a party who parts with the possession of his property under such circumstances parts with it voluntarily, and especially when based upon such false and fraudulent statements as above stated. It occurs to us that the jury was warranted in finding under the instructions of the court, which were not excepted to by defendant, that it was the intention of the defendant at the very time he bought the car to falsely appropriate the same to his own use and benefit, and to commit the crime of stealing' the same as prohibited by the statutes and as alleged in the information in this case.

The Supreme Court of this state has universally held that where goods are sold for cash and delivered, and the vendor takes the vendee’s check for the price, which on presentment in due time is dishonored, title to the goods does not pass and the vendor may reclaim the property from the vendee, and any party who does not have any greater equities. Mott v. Nelson, 96 Okla. 117, 220 P. 617; First National Bank of Byars v. Griffin & Griffin, 31 Okla. 382, 120 P. 595, 49 L. R. A., N. S., 1020; C. M. Keys Commission Co. v. Beatty, 42 Okla. 721, 142 P. 1102. This rule is also announced in an elaborate note in 31 A. L. R. at page 579, where the editor says:

“Upon a sale of personalty for cash, payment is a condition of the passing of title (24 R. C. L. 23), and when the buyer gives a check or draft for the purchase price, and it is accepted by the seller as the means of payment, it constitutes only a conditional payment, and as between the parties payment becomes absolute only when the paper is paid, and until such payment title does not pass.”

And cases are cited from many different states. The case of Mott v. Nelson, supra, has many points in common with the case at bar, and while it is a civil case the argument and reason given applies with equal force with the facts in this case.

It follows, therefore, that if there was not a voluntary parting with the property by the Highway Motor Company, and the title to the property had not passed from them to the defendant, then this case does not come within the rule above announced. This being true, if the defendant at the time of securing possession of the automobile had the felonious intent to convert the same to his own use, and did so convert it, he would be guilty of larceny. The fraud would take the place of the trespass in the taking. Under the instructions of the court the jury had a right in deciding this matter to take into consideration the fact that defendant had made the false misrepresentation above referred to, and to the further fact that immediately after securing possession of the automobile he left for a foreign state, and that a month later he was there located by the officers with the automobile in his possession, and the 1986 Oklahoma license had been removed therefrom and a 1986 Texas license substituted therefor.

We are of the opinion that under the facts in this case defendant was guilty of the crime of stealing an automobile as provided by the statutes of this state. Cases from this court, while not directly in point, sustain the rule above announced. Bivens v. State, 6 Okla. Cr. 521, 120 P. 1033; Flohr v. Territory, 14 Okla. 477, 78 P. 565; Glaze v. State, 13 Okla. Cr. 431, 165 P. 211; Jackson v. State, 22 Okla. Cr. 338, 211 P. 1066; Underwood v. State, 23 Okla. Cr. 119, 212 P. 1010; Crowell v. State, 6 Okla. Cr. 148, 117 P. 883; Hughes v. Territory, 8 Okla. 28, 56 P. 708; Huckaby v. State, 22 Okla. Cr. 376, 211 P. 525; Eslinger v. State, 41 Okla. Cr. 426, 273 P. 1024.

This rule has been followed in the decisions from other courts; one of the leading cases being that of United States v. Rodgers, 1882, 1 Mackey 419, 12 D. C. 419, cited in 35 A. L. R. 1337, which gives the strongest reason for the rule, which we are now adopting in Oklahoma, and which is being followed by the later cases in the other courts of the union. It is there said:

“It has been held that where a person procures the sale of goods to himself on credit by false representations, or by giving or exhibiting a false token, not intending at the time to pay for them, he is guilty of larceny. United States v. Rodgers (1882) 1 Mackey (D. C.) 419. See, also, Huckaby v. State (1923) 22 Okla. Cr. 376, 211 P. 525.
“In a case in the District of Columbia in which a conviction of two persons of larceny was sustained, it appeared that they had fraudulently conspired to obtain the horse of another, and that the owner of the horse received part payment, and was induced to go to another place for the balance of his pay, leaving his horse, in the meantime, in the possession of one of the vendees. On his return he found that it had been taken away. It was held that there was an incomplete sale and an incomplete or conditional delivery of the horse, as the transaction was not to be complete until the purchase money had been paid, and the title to the horse was not intended to be passed until payment. United States v. Rodgers (D. C.) supra. The court, in referring to the rule where both possession and title have passed, remarked, obiter: ‘If the question were res integra, I should myself hold that in no case could title pass where the possession has been obtained by fraud or deceit; and in my opinion there is no solid ground of distinction between cases where the title has been obtained by fraud and those in which only a naked possession has been so obtained. To say that a vendor has parted with his title under such circumstances may be correct in terms, but how has he parted with it? Why, under the influence of fraud and false pretenses. His judgment and will have been cheated. All the requirements necessary to constitute a legal contract for the alienation of property have been outraged; yet that which the law, in its civil issues, treats as void, by the sublimated metaphysics of the criminal law is made valid. This is a refinement in the direction of protecting guilt and defrauding innocence; it is a distinction in violation of common sense, and of all the analogies of the law; and if I were not bound by precedents I should not hesitate to. declare all such transactions larcenies.”

See, also, notes in 26 A. L. R. 391, 35 A. L. R. 1336, and 83 A. L. R. 441, where the editor’s notes says:

“It may be stated generally that where the possession of property is acquired with the understanding, express or implied, that cash payment is to be made therefor, and under circumstances negativing the idea of the intention of the seller to part with his title to the property until payment is made, the offense of appropriating or removing the property without payment may constitute larceny, provided, there was a felonious intent on the part of the purchaser at the inception of the transaction.” State v. McConnell, 136 Kan. 30, 12 P. 2d 797; Shipply v. People, 86 N. Y. 375, 40 Am. Rep. 551; Williams v. State, 165 Ind. 472, 75 N. E. 875, 2 L. R. A., N. S., 248; People v. Miller, 169 N. Y. 339, 62 N. E. 418, 88 Am. St. Rep. 572; Trotter v. Commonwealth, 169 Ky. 551, 184 S. W. 871, L. R. A. 1916E, 768; Anderson v. State, 77 Tex. Cr. R. 31, 177 S. W. 85.

We have read the record with reference to the contention that the court erred in refusing to continue this case. No motion for continuance was filed. The defendant was arraigned on June 2, 1936, and was told that his case was set for June 22d,.and the counsel who was representing him at that time was informed if they wished to withdraw from the case they could do so by the 10th of June. No effort was made by defendant to secure the services of any other attorney. The court appointed counsel to represent him. The attorneys who represented him originally are representing him in this appeal. This matter under the law was within the discretion of the trial court, and we find nothing which shows that this discretion was abused. The information was in proper form. The instructions of the court fully protected the rights of the defendant, and presented the issues to the jury for their determination. No exceptions were taken to the instructions. We find no reversible error in this case, and the judgment of the district court of Okmul-gee county is therefore affirmed.

DAVENPORT, P. J., and DOYLE, J., concur.


text:
    ADOLPH WYATT v. STATE.
    No. A-9351.
    April 14, 1938.
    (78 P. 2d 718.)

      Homer Caldwell, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The parties will be referred to in this opinion as they appeared in the trial court. Adolph Wyatt, the defendant, was by information charged with assault with intent to kill, was tried, convicted, and sentenced to a term of seven years in the state penitentiary. Motion for new trial was filed, considered, overruled, exceptions saved, and defendant appeals.

The state, to maintain its charge, called Earl Inman, who in substance testified:

“My stepfather has a pool hall business at 9 West Frisco, in Oklahoma City; Claud and Adolph Wyatt are my uncles; the night of the shooting I had been to a picture show and saw my Uncle Adolph on my way home about 10 o’clock; I went up to the beer garden with him, and then came back; I then went home where my mother was; I afterwards went back to the pool hall and saw my Uncle Adolph there; he came in with his gun; from the time I saw him at the beer garden until I saw him at the pool hall it was about 15 minutes; he came into the pool hall through the cafe; when Uncle Adolph came into the pool hall with his gun he started up like he was intending to shoot toward my Uncle Scottie; his other name is Claud; Claud was standing about three feet from the partition in the pool hall when Adolph came in; when Adolph pointed the gun at Claud he got a bottle and threw it at Adolph, he did not hit Adolph but hit me; I tried to prevent Adolph from shooting Claud, I swung on the barrel of the gun; I thought he was going to shoot him. Prior to that time my uncle had told me he was going to kill Claud if he did not give him his keys. He did not have a gun at the time he told me what he was going to do if Claud did not give him his car keys; the gun he shot Claud with belonged to Claud; I do not know how the gun became broken; immediately after the shooting I kneeled over with my knee; I did not see Uncle Adolph strike Claud with his gun; at the time Adolph shot Claud he was standing with his arms down to his side; Uncle Adolph was about 15 or 20 feet away at the time he shot.”

On cross-examination witness stated:

“When we went to the beer garden my uncle was trying to call a policeman to go and get his keys from Scottie; my Uncle Adolph claimed that Scottie had his car keys and would not give them up; I was not at the house when they had their first trouble, Uncle Adolph told me he was going to shoot Claud if he did not give him his keys; I had hold of the barrel of the gun, Adolph was holding it like he was fixing to shoot a rabbit or something, he had the gun up to his shoulder; I did not have hold of the gun at the trigger when it was discharged; Claud threw only one bottle; when he threw the bottle the gun went off; I don’t know if Nellie Rector threw any bottles; I did not shoot that gun or pull the trigger.”

Nellie Rector Washington, testifying on behalf of the state, stated:

“I was at the pool hall at the time Claud Wyatt was shot; I was at Claud’s house a short while before the shooting; there was a shot fired at the house by Adolph, the defendant in this case. After the shot was fired I left and went down to the pool hall; I saw the shooting at the pool hall by Adolph; I don’t know what kind of a gun he used. I did not hear any conversation between Adolph and Claud Wyatt before the shot was fired; I do not know what happened to Claud Wyatt after the shot was fired as I left immediately. Claud and Adolph are brothers.”

On cross-examination witness stated:

“I did not throw bottles at Adolph when he came in nor did I see Claud throw any; Claud was standing near the door and I was standing by the ice-box by the counter; I did not see any bottles thrown that night; I was at the house at 111 West Frisco when the gun was taken; the names of the other parties there at the time were Lillie D. Green, Adolph and his sister Ruth and her husband, and another man, I don’t know who he was. I did not hear any argument or know of any trouble at the house; I went up there to listen to the music; I am not a friend of Claud’s wife; I did not go up there to see Claud and be with him; if Claud went out to get whisky I did not know it; I did not hear Adolph say to Claud, ‘You get my money,’ and say, ‘I mean it,’ then Claud say, T haven’t got your money,’ and Adolph say to him, ‘If you will get it out of that woman’s breast you will find the money’; I did not give the defendant the difference between a $5 bill and a bottle of whisky and put the money in my bosom, nor did I tell Adolph when he said he was going to search me that neither he or the policeman would search me, nor did I know where Claud was; I saw Claud at the house but I was not drinking any whisky.”

Britt Jones, the next witness who testified for the state, stated:

“My name is Britt Jones; I am a brother-in-law of Claud and Adolph Wyatt; they are my wife’s brothers; my place of business is located at No. 9 West Frisco; it is a pool hall; I sell soda pop and candy. The place of business faces south on Frisco, the eating place in the building is partitioned off from the soft drink part.
“I was on duty that night and saw Claud Wyatt; there was no one with him when he came in; Adolph was there also that night; he came in after Claud did; Claud and Adolph had a conversation in which Adolph asked Claud for his car keys; Claud told him when he paid for breaking his glass you can have the car keys. I understood the glass referred to was a glass Claud claimed Adolph had broken at Claud’s house; I was talking to Adolph and said, ‘What is the matter with you Claud, what is your trouble,’ and Adolph says, ‘He has my car keys and won’t give them to me.’ He went on out the same door he came in, and in about ten or fifteen minutes later Adolph came back , the same way, and when I noticed him he was standing near the double doors that lead out on Frisco, he had a gun; when he came in with the gun the women commenced screaming; he throwed the gun up (indicating) and that kid of mine broke for him, and Claud walked right over to this little place where the bottles were and grabbed one of the bottles and threw it at Adolph and struck the kid. The gun had been pointed at Claud before Claud got the bottle; Claud was standing back toward the partition that separated ,the cafe from the other place; when the gun fired Claud fell; when the shot was fired he looked up as if to protect himself; Claud had nothing in his hand at the time the shot was fired; after the shot was fired he fell down, and Adolph, the defendant, hit Claud with the gun and broke it.”

On cross-examination the witness stated:

“Claud only threw one bottle and he did not think Nellie Rector threw any bottles. The bottle was thrown the gun was fired; when the bottle was thrown the defendant had the gun down like this (indicating) my boy was over by the ice-box standing pretty close to the gun, he was grabbing at the gun; I don’t know exactly whether he had hold of it or not; the bottle Claud threw hit my son Earl Inman. I only saw Claud throw one bottle; I saw the defendant strike down this way, and I guess he must have hit Claud, he hit at him but I do not know whether he hit him or not; I know he shot him. After Claud was shot he fell on the floor and an ambulance was called and took him to the hospital. The gun fired just as soon as Claud threw the bottle.”

Claud Wyatt, called on the part of the state, stated:

“My name is Claud Wyatt; the defendant, Adolph Wyatt, is my brother; I live at 111 West Frisco; Britt Jones is my brother-in-law; he runs a pool hall at No. 9 Frisco; I was at Britt Jones’ place on the evening of October 24,1936; the building at No. 9 West Frisco faces south; I came down to Britt Jones place of business about 9 o’clock; Adolph Wyatt, my brother, was not there when I got there; he came in later and asked me for his keys; I told him I would give him his keys when he paid me for the window he broke about ten minutes before he asked me for the keys. After this conversation he went out and when he came back he had a shotgun; I did not see him come in, somebody said, ‘Look out,’ and I looked up and saw him; I was standing back against the big door at the south end of the building; he seemed to be waiving a bunch of people out of the way; he pointed the gun at me, and I reached down in the corner and came up with a pop bottle and threw it at him; I only threw one bottle. He had the gun up (indicating) like that, and when I threw the pop bottle at him he shot me; then.I kept right on toward him; he shot me along there and across the eyes; my eye just felt like it was burned — I cant see out of it, the eye ball is gone. I got plumb to him and then fell down; I got a wound on the side of my head; after I fell down there I dont remember what happened; I had nothing in my hand at the time Adolph shot me; I threw my hands up, I saw he was going to shoot.”

On cross-examination witness stated:

“I was not drinking; Adolph did not give me $5 to go and get some whisky; Nellie Rector was at my house while Adolph was there; Nellie was there just as she always is, visiting and listening to the music, she is not my special friend. The other parties were Natahiel Mayes, Ruth Mayes, Lillie D. Green, and I think that is all outside of Adolph; Adolph and I did not have a fuss at my house that night. I got his car keys right in front of my house out of the car; I dont know where he was when I got them; I cant explain how he came to have the gun, I did not know he had it; we were not quarreling over the shortage of change, nor were we wrestling over the gun at his house; I was not drunk. I heard the gun was taken to my sisters; it was shot on the front porch up in the ceiling of the porch. I did not throw a glass at Adolph and break a window; it broke at the time the shot was fired. I did not know who broke it; I demanded that Adolph pay me 85 cents for the broken glass before I would deliver him his keys; he was the only one that had anything to break the glass with; we did not fuss about the keys, he asked me for them, and I would not give them to him. After I left my house I went down to the pool hall; he came down to the pool hall and talked to me about the keys; I agreed to give him the keys after he paid for the window; I told him to get 85 cents to pay for the window, and said nothing about the gun. If Nellie Rector was in the pool hall when Adolph returned I could not see her; she did not ask for the car keys that night. No one but Adolph ask me for the car keys; some one said, ‘Look out,’ I got an empty bottle and threw it at him, I dont know whether I hit him or not; I only threw one bottle; he was in the act of shooting; I never went out of the pool hall by myself after I was shot. I dont know whether I was hit with the gun after I was down or not. I did not realize anything after the gun went off; it seemed like I could not see, it did not seem like I had my senses at all; I dont know whether my brother intended to shoot me; he had the gun thrown on me; we had not been at outs prior to this time nor had we had any trouble, we were good friends. I hold no grudge against him by reason of the shooting. Just before I was called here I was up to the hospital to have my wounds treated. Ruth Mayes was at my house that night; she is my sister. While Adolph was at my house and discharged the shot gun I took his keys out of his car; he seemed to be drunk.”

Adolph Wyatt, the defendant, testifying in his own behalf, stated;

“Claud resides at 111 West Frisco; on the night of the trouble I came by for him on my way to work because they wanted some body else during the holidays and I thought he wanted to make some extra money; I went by to get him to go with me to work; I work at 4212 North Walker; have worked there over four years; I am married and have seven in my family; when I got to Clauds he said he would buy a little drink before we went, and I gave him a five dollar bill to go and get something; he went and bought a pint; I did not have to go to work until 10 o’clock; Claud brought the whisky and poured some in the toddy glasses around the table, and I drank a toddy, and said, before I get too much of this I expect you had better give me my changp back; Claud said he laid it there on the table, I said, ‘Not since I have been here’; he said, ‘Search yourself, and get up’; I said, ‘It is not here,’ and I got up and searched myself and did not find it, and he said, ‘Maybe I laid it in here’; he walked into the other room and Nellie Rector followed him; I got up and peeped and saw him give her the money and she put it in her bosom; I seen it because I was looking behind the curtain; Claud came out and said, ‘Did you find it,’ and I said, ‘I did not think you would do that’; she said, ‘I haven’t put anything in my bosom,’ and I says, ‘Oh, I will search you and show you’; she said, ‘No, you aint going to search me’; I grabbed her by the arm, and when I grabbed her he threw a glass at me, and knocked the window out; then he run up and hit me, hit at me and missed me; he was drinking, and he went and got the gun, and I got hold of it and was twisting it, and while I was twisting the gun the gun fired in the house; I got away from Claud and it made him mad and he ran out of the door, and I gave the gun to Lillie D. Green and told her to take it down to my sisters; I went with her as far as the corner; I went to get my car and he had taken the car keys and put them in his pocket; I came back to the car to go to work and I says, 'I will let it go, he will pay me’; he was standing nearby and I says, ‘Boy, why did you take the keys,’ and he says, ‘I aint going to give you any keys until you give me 85 cents for the window you broke,’ he says, ‘You threw a glass and broke my window,’ and he says, ‘I aint going to give you the keys’; I said, ‘If I had any work I would give it to you, and if you want to help me spare time you can do that and I will pay you 85 cents’; he says, ‘Before the car is moved you are going to pay me the 85 cents’; and I says to Nellie Rector, ‘You all have taken my money and you have taken my car keys, and you haven’t any body to take care of and you should give me my money,’ and I said, ‘If you wont give me the money I will get a policeman,’ and I went up to the beer garden on Robinson, and while I was on the way I met sisters little boy, Earl Inman, and I told him I was going to the beer garden to call a policeman to make Claud get my money and my car keys; I did not get the policeman; the boy said he would try to get a policeman for me; we came on down to the pool háll that is next door to sisters house, I don’t know what the boy said, I met sister about ten or fifteen steps from the place and she asked me where I was going, and she said, ‘I will go in and ask him,’ and Claud said, ‘I am not going to give the keys to him until I have the 85 cents for breaking the window’; I then went in and said, ‘Claud, please give me my car keys; I cant pay for my groceries, I do get meat and things from the store,’ and he says, ‘If you will promise to give me the gun back I will give you the keys,’ and I said, ‘If you will do that I will even bring you the gun.’
“I went to my sisters and got the gun and come in the building with it; when I came in the building a little girl was right back of me and had hold of my coat tail and I was trying to get loose; I was angry because Claud had taken my money, and it made me a little nervous; this boy got hold of the gun and then Claud came in with a pop bottle and hit me over the head; that is what he did and the gun fired; that is as far as I remember; he made at me but I dont know what he did; he is four year older than I am and I am used to him whipping me all along so I shot at him; he hit me this way, and at the same time the gun fired; I dont know how long the gun was pointed at him; he run at me while I had the gun like this (indicating) and then the gun bumped him on the head; I did not intend to shoot him. When the arresting officer told me I had shot him I did not know he was shot; I think he threw one bottle at me; when Inman hit the gun Nellie had some bottles and had hold of my coat tail and was hitting me with a shoe or bottle; I dont know what it was; I saw two bottles that Claud threw at me; I dont know how I shot him; my intentions were not to shoot him, I was pointing the gun and had no thought of shooting at him at all, and would not have done so for anything in the world; he did not fall down at my feet, he run at me and hit at me and I hit him with the gun; I stopped him with the gun I believe; when he hit me- like this, and I had the gun like that (indicating) that is when the gun fell on the floor or wherever it fell. I did not hit him with the gun any more.
“I come out by the side door; Nellie Rector picked up a pop bottle and hit me after stepping out of the door; I did not make an unjustifiable assault upon him; he was hitting at me and threw two bottles at me, one struck me, and then I stopped him with the gun.”

On cross-examination witness stated:

“Defendant identified the gun as belonging to his brother Claud. I sent the gun from Clauds house over to my sister; when I came into Britts place I came through the cafe on the west side of the building, then came in through the side door to Britt’s place, the only way you can get in. I have been convicted once for assault to kill; I served in McAIester, in 1929.”

Lillie D. Green, testifying for the state, stated, in substance :

“There were four of us at Claud’s place, Claudie, Adolph, Lessie Reese and myself; we drank some whisky and Adolph said to Claudie, ‘You have got my money,’ and Claudie said he hadn’t; they got to tussling over the gun and the gun fired and they break out a window and so Adolph Wyatt goes to get in the car and the car keys are gone; the gun was taken down to the defendant’s sister; Claud said, ‘If you will give me the shot gun I will give you the car keys.’ Adolph starts off after the gun and I saw no more of it. I could not say Claudie was drunk; he was drinking; he was staggering; whether he was drunk or not I could not say. Adolph told me to tell Claud he did not want Claudie to hurt him.”

On cross-examination Lillie D. Green stated:

“I took the gun down to Adolph’s sister’s house; it had been fired once. I dont know who fired it. Adolph and Claudie were both tussling with the gun on the inside of the house; there was one shot fired. I went out of the door behind Adolph; he told me to take the gun down to his sisters house; I dont know how the gun got reloaded, nor do I know how many shells were in the gun.”

Nellie Rector Washington, called in rebuttal, stated that the gun up at Claud’s house was fired while the boys were on the porch:

“I was present at Claud’s house all the time; I dont know anything about the whisky, I did not see any whisky; I was there but I was probably in his sisters room talking to her; I did not see any whisky.”

Claud Wyatt, called in rebuttal, stated:

“I did not have any conversation with my brother at my house out near his automobile; the shot that was fired at my house was fired on the outside up at the ceiling. I dont know who fired the shot; I was not out doors at the time; I did not get a pint of whisky and bring it in there, nor did I get a half pint of whisky and bring it in the house.”

The foregoing is the substance of the testimony of both the state and the defendant.

The defendant in his petition in error has assigned 16 errors alleged to have been committed by the trial court.

The first proposition discussed by the defendant is that the evidence is insufficient to support a conviction. With this contention we cannot agree, for the reason that the record shows that the prosecuting witness and the defendant, who are brothers, had a difficulty at the home of the prosecuting witness a short distance from where the shooting took place and a window light was broken out of the prosecuting witness’ home; the defendant being charged with breaking it, and the prosecuting witness demanded payment for the same. The prosecuting witness got hold of a gun, and the defendant got hold of it, and in the scuffle the gun was discharged, and the defendant sent the gun down to his sister. When he went out to get in his car to go to his work, he found his brother Claud had taken his car keys and would not return them until he got his gun and pay for the window he claimed Adolph had broken.

Claud went down to his brother-in-law’s place of business and the defendant went out somewhere to call a policeman to come and get his keys from his brother. While he was out on that mission he met a nephew, Earl Inman, who testified the defendant told him he was going to get his keys or he would kill Claud. The defendant then went to his brother-in-law’s place and tried to get Claud to give him his car keys; Claud refused to do so, and the defendant left the room and in about five or ten minutes thereafter returned, coming in by the side door with the gun in his hands, and had it pointed at Claud; Claud threw a pop bottle at him, and the nephew, Earl Inman, says he got hold of the barrel of the gun and the defendant fired at Claud striking him in the face and destroying the sight of one of his eyes. Claud rushed at the defendant and the defendant struck him with the gun.

The defendant says he did not intend to shoot Claud, but the physical facts and his own testimony contradict that statement.

The jury heard the testimony for the state and the defendant, and found the defendant guilty of assault with intent to kill, and fixed his punishment at seven years in the state penitentiary. The testimony shows throughout the record that the defendant was the aggressor, and that he was determined to get his car keys, let the cost be what it may, and in so doing he shot his brother Claud without justification and without any action on the part of Claud attempting to take the life of the defendant or to do him great bodily harm.

Section 3062, O. S. 1931, Okla. St. Ann. title 22, sec. 834, in part is as follows:

“The questions of fact are to be decided by the jury.”

The jury found the defendant guilty and assessed his punishment. Under the law and the facts, the verdict of the jury should not be set aside. Powell v. State, 11 Okla. Cr. 615, 150 P. 92; Queen v. State, 35 Okla. Cr. 412, 250 P. 935; Clemmer v. State, 56 Okla. Cr. 354, 40 P. 2d 37; Houston v. State, 63 Okla. Cr. 49, 72 P. 2d 526; Coppage v. State, 62 Okla. Cr. 325, 71 P. 2d 509; Goodnight v. State, 62 Okla. Cr. 382, 71 P. 2d 789, and Ely Sarratt et al. v. State, 64 Okla. Cr. P. 274, 77 P. 2d 1188.

The second assignment argued by the defendant is, the court erred in giving the following instruction to the jury:

“Under the laws of the state it is a felony for anyone to assault another with intent to kill by means of a dangerous weapon, such as a gun, either by shooting or by striking and beating, so, then, if the state of Oklahoma in this case shows to you by competent evidence, beyond a reasonable doubt, that in Oklahoma county, state of Oklahoma, on the 24th day of October, 1936, that this defendant did unlawfully, wilfully and feloniously make an assault upon one Claud Wyatt with intent to kill him, with a certain weapon, to wit: A shot gun, by shooting and striking and beating him, as charged in the information, you should then and in that event return a verdict of guilty against him. But upon the other hand if you entertain a reasonable doubt of the defendant’s guilt upon that charge you should give him the benefit of that doubt and acquit him thereon.”

The defendant further, in his third proposition argued, alleges the court erred in not properly instructing the jury as to the law. We have carefully examined the instructions of the court and do not find any error in the instructions when taken in their entirety that would warrant this court in reversing the case.

Section 3206, O. S. 1931, 22 Okla. St. Ann. § 1068, is as follows:

“No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”

After an examination of the entire record, it does not appear that the error complained of has probably resulted in a miscarriage of justice or constituted a substantial violation of the constitutional or statutory right of the defendant.

The next question to be considered is the question, argued by the defendant, that the verdict is excessive, is not responsive to the issues, and is not supported by the law. The defendant in this case insists that the verdict in this case is excessive for the reason that this was a row between brothers, and the record shows they had always been agreeable and friendly prior to the difficulty and since the difficulty, notwithstanding the prosecuting witness Claud Wyatt lost an eye by being shot by his brother, Adolph Wyatt; that seven years is excessive, and the judgment should be modified.

The defendant urges further, as a reason the judgment should be modified, that the court in its instructions did not differentiate between the manner of the use of the shotgun by shooting and by using it as a club. There is nothing to this argument for the reason that the record clearly shows that the defendant shot the prosecuting witness with the gun, and then further struck him with the gun.

Under the evidence in this case and the instructions of the court, the guilt of the defendant is clearly established. The defendant raises another question as to why this judgment should be reversed or modified, and argues at length that when the court submitted to the jury a form of verdict it had written across the top of the verdict, “Not over ten years,” and the defendant insists that this was a suggestion to the jury and intended to indicate to it the court felt a verdict of guilty should be returned, and only left to the jury the fixing of the punishment. The defendant urges the severity of the punishment imposed on the defendant clearly shows the jury must have been influenced by the notation on the top of the verdict.

We cannot understand why the trial court permitted a form of verdict to be given to the jury with a notation on the top of the verdict, “Not over ten years”; ten years being the maximum punishment that could have been inflicted upon the defendant. We feel this notation could have influenced the jury in arriving at the punishment imposed upon the defendant. Considering that it was a friendly row between brothers, and that they are now friendly, and the notation on the form of the verdict, we find the punishment imposed is excessive, and should be modified from seven years in the state penitentiary to five years, and, as modified, the judgment is affirmed.

DOYLE and BAREFOOT, JJ., concur.


text:
    ROB WEST v. STATE.
    No. A-9346.
    April 14, 1938.
    (78 P. 2d 724.)
    Frank Petree, of Altus, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information filed in the district court of Jackson county, August 31, 1935, charges that the defendant, Rob West, in said county, on July 9, 1933, committed the crime of larceny by taking and stealing from the owner, Doc Beauchamp, 28 bushels of wheat, of the value of $25.22. Upon his plea of not guilty the defendant was tried and convicted, the jury finding him guilty of grand larceny as charged, and assessing his punishment by confinement in the state penitentiary for a term of two years. His motion for new trial was duly filed and overruled.

From the judgment rendered December 11, 1936, in accordance with the verdict, he appeals.

The first assignment is that the verdict of the jury is contrary to law and is not supported by sufficient evidence. Other assignments are based on exceptions to the court’s rulings in the admission and the exclusion of testimony.

It appears from the evidence that Doc Beauchamp lived 1 mile west and 2 miles south of the town of Eldorado; that in July, 1933, he had stored in the granary about 300 yards from his house some wheat; that on the morning of July 10th, he found his granary had been broken into, and that some of his wheat-had been stolen. He observed tracks of a truck at the granary and immediately called officers from Eldorado, they checked these truck tracks from the granary to the highway; the defendant that Monday morning sold 28 bushels of wheat to W. A. Mosley, grain dealer in the town of Quanah, Tex., and received for the same a check for $25.22; that he never cashed this check; that complaint was filed and warrant issued for the arrest of this defendant, but the officers were unable to serve the warrant, he having left the country; that the defendant was not taken into custody until July, 1935, some two years after the theft.

Mrs. Thulia Durham testified that she lived 5% miles south of Eldorado; that the defendant’s father and her children are cousins; that Sunday afternoon, July 9th, the defendant borrowed her truck and brought it back the next morning; that Ab Boaldin was there talking to her when the defendant brought the truck back.

Ab Boaldin testified that he was called to Mr. Beau-champ’s place and made a careful examination of the truck tracks between the granary and the highway, then with Mr. Beauchamp he went to Mrs. Durham’s place, and while there the defendant drove up in the truck; that the truck tracks at the granary and the tracks of the truck the defendant drove to Mrs. Durham’s were identical; that the front casings were badly worn and the two hind casings were fairly good, except the left hind casing had an oblong place in it, looked like it had been torn or a lug was gone.

H. A. Savage, sheriff, testified that he made an examination of Mr. Beauchamp’s granary and the truck tracks there and could tell that the front casings were badly worn, the two hind casings fairly good except that the left hind casing had an oblong place in it, looked like a lug had been torn out of it; that when the defendant was arrested two years later in a conversation with him, the defendant said he sold about 28 bushels of wheat that Monday morning at Quanah; that he got the wheat at Oscar Durham’s, and received a check for $25 and some few cents for the wheat; that the check was made payable to Vernon Durham; that he asked the defendant why he did not cash the check, and he said he was afraid it would get Vernon Durham into it, or get himself into it for forgery.

O. R. Jones, undersheriff, testified that he arrested the defendant and was present and heard the conversation Sheriff Savage had with the defendant, that the conversation was in substance the same as testified to by the sheriff.

Against the defendant’s objection the testimony of W. A. Mosley, of Quanah, Tex., as given on the first trial was read to the jury to the effect that on the morning of July 10th he purchased from the defendant 28 bushels and 40 pounds of wheat, and issued a check therefor for the sum of $25.22.

At the close of the testimony for the state the defendant interposed a demurrer on the ground that the same is insufficient to sustain the allegations of the information, which was overruled. Exception allowed.

The defendant did not testify.

Lester Ingram testified that between 2 and 4 o’clock in the morning of July 10, 1938, the defendant came to the Durham farm where he lived; that defendant stated that Vernon Durham told him that he could go down there and get some wheat. That witness then went back to bed.

Fred Ingram testified that he lived on the Durham farm; that a day or two after he had heard some wheat had been stolen he looked into his bin and it had the appearance of some wheat having been taken out; that the witness Lester Ingram was his brother.

On cross-examination he was asked:

“Q. Are you willing to tell this jury that Rob West took some wheat out of that bin on July 9th? A. No, sir.”

Vernon Durham testified that he had agreed to let Rob West, the defendant, have some wheat out of the bin on the Durham place; that the defendant was going to exchange his labor plowing the wheat land for the wheat.

On cross-examination he stated defendant’s father was his first cousin; that it was understood that he was to go with the defendant to get the wheat; that witness was in Oklahoma City on the night of July 9th; that witness has not been paid for the wheat.

Charley Dowden testified that he was present with Mr. Boaldin when he examined some truck tracks at the Beau-champ place, and that he went from there to Quanah with Mr. Boaldin and Doc Beauchamp, that when they came back to Eldorado he noticed a truck that looked like the Durham truck, and he noticed that there was a plug knocked out of one of the rear casings.

At the close of all the testimony in the case the defendant again demurred thereto on the ground "that the evidence is insufficient to sustain the allegations in the information.” Demurrer overruled. Exception allowed.

It is contended by counsel for defendant that the court erred in admitting the testimony of the witness W. A. Mosley, taken at a former trial, to be read in evidence as a deposition, since it was not shown that this witness was not in Jackson county at the time of the trial.

Considering the competency of the testimony, it appears that the first witness called by the state was Mrs. Willie Witt, court clerk of Jackson county, who testified that she issued an out of state subpoena for W. A. Mosley and the subpoena was served on him, and he testified as a witness on the first trial.

Essie Mae Wynes testified that W. A. Mosley testified on the first trial of this case and she made a transcript of the testimony given by W. A. Mosley on the previous trial, and produced the same, which was marked Exhibit A, which was offered in evidence on the ground that W. A. Mosley is a nonresident of the state of Oklahoma, and that due diligence had been made to obtain his presence. Against the defendant’s objection the same was admitted and read to the jury.

In our opinion a sufficient showing was made, but regardless of that question the admission of this testimony was harmless. The same matters were brought out through the testimony of the sheriff as to the statements made to him by the defendant, which statements were not denied by the defendant.

Counsel in his brief says:

“The state’s evidence fails to connect the defendant with the theft. There is not a line of evidence of the value of the wheat at the time and place of the alleged theft or any other time. Market value must be determined when it is necessary to establish value to fix grade of crime.”

In our opinion, there is no merit in this contention. The nearby town of Quanah, across the river in Texas, was one of the market towns of the community where the wheat was stolen.

A careful examination of the record leaves no reasonable doubt in our mind as to the sufficiency of the evidence as to justify submitting to the jury the question as to the defendant’s guilt. The jury saw the witnesses, heard the testimony, and by their verdict found the defendant guilty, and upon the undisputed facts and circumstances which evidence shows, we cannot resist the conclusion that the verdict was fully warranted by the evidence.

Upon careful examination, we find no prejudicial error in the record, and we are of the opinion that the defendant had a fair and impartial trial. The judgment of the lower court is, therefore, affirmed.

DAVENPORT, P. J., and BAREFOOT, J., concur.


text:
    E. H. WILLIS v. STATE.
    No. A-9352.
    April 14, 1938.
    (78 P. 2d 840.)
    Mathers & Mathers and Joe Adwon, all of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction rendered in the court of common pleas of Oklahoma county, in accordance with the verdict of the jury finding the defendant, E. H. Willis, guilty of vagrancy, and fixing his punishment at a fine of $100 and confinement in the county jail for 30 days.

Motion for a new trial was overruled. On February 20, 1937, the court rendered judgment on the verdict.

The information charged that on the 6th day of November, 1936, in Oklahoma county, E. H. Willis, “then and there being did then and there willfully, unlawfully and wrongfully loiter about and upon the streets of Oklahoma City, said county and state; said defendant was an able-bodied person with no visible means of support and made no honest endeavor to secure a livelihood, contrary to,” etc.

The assignments are: Error in the overruling of defendant’s motion for a new trial; error in overruling the defendant’s motion for a directed verdict; and errors of law occurring during the course of the trial and excepted to at the time.

The testimony on the part of the state tended strongly to show that the defendant was guilty of vagrancy as charged. Seven or eight members of the police department of the city of Oklahoma City testified that they had seen the defendant hanging around the bus station and railroad stations on the date alleged, and frequently for several months prior thereto, that he had been arrested several times prior to the arrest in this case; that he associated with marijuana smokers; that he had no visible means of support and was an able-bodied person; that accosted by the officers he would say he was not working at all, but was going to go to the cotton fields; at other times he would say that he had a job with some oil company. It appears that he was arrested several times for working petty confidence games.

The defendant did not testify as a witness in his own behalf.

The only witness for the defendant was J. T. Boyd, who testified that he operated a pool hall at 505 S. Robinson street, Oklahoma City, that he could not recall any dates but remembers cashing three or four checks for the defendant in the fall of 1936, one or two in December, 1936, as he remembers.

It appears from the record that no demurrer was filed to the information or objection to the introduction of evidence made, and no motion in arrest of judgment was made. The sufficiency of the information is challenged for the first time in this court.

It is strenuously insisted that there was a defect in the information which entitled the defendant to a reversal of the judgment against him.

An information cannot be attacked upon appeal unless some foundation was laid therefor before final judgment was rendered. The defendant may take advantage of a defective information by demurring thereto before the trial, by objecting to the introduction of evidence on the ground that the facts stated do not constitute a public offense, or by motion in arrest of judgment.

The function of a demurrer is to defeat the information without a trial whenever it appears that it is subject to any one or more of the five objections named in the statute, section 2948, St. 1931, 22 Okla. St. Ann. § 504. These objections can be taken only by demurrer.

“Except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.” Section 2956, Okla. St. 1931, 22 Okla. St. Ann. § 512. Stone v. State, 12 Okla. Cr. 313, 155 P. 701; Franklin v. State, 17 Okla. Cr. 348, 188 P. 686.

Under this provision, if it appears that the facts stated do not constitute a public offense, an objection to the introduction of evidence on that ground is sufficient to raise the question. After the verdict was rendered, when motion was made for a new trial, no claim was asserted that the information was bad for any reason.

The record shows that at the close of the evidence appellant demurred thereto and asked the court to advise the jury to render a verdict of not guilty upon the ground that the evidence is insufficient to sustain a conviction.

This motion challenged the evidence, not the information. There was a claim of variances, but no claim that the information did not warrant a conviction. The motion was made upon specific grounds which did not include, or necessarily involve, an objection to the information. It follows that we cannot consider the questions argued as to the insufficiency of the information because they were not raised as authorized by statute. This court cannot consider questions that were not raised in the trial court as authorized by statute, unless fundamental error prejudicial to the substantial rights of appellant is apparent. Harry v. State, 59 Okla. Cr. 302, 58 P. 2d 340; Rhodes v. State, 58 Okla. Cr. 1, 49 P. 2d 226; McGaugh v. State, 12 Okla. Cr. 96, 152 P. 140; Clark v. State, 11 Okla. Cr. 494, 148 P. 676.

Under the assignment, errors of the court in the course of the trial, counsel for the defendant in their brief say:

“The defendant was charged under the second subdivision of section 2581, St. 1931, 21 Okla. St. Ann. § 1141, and was convicted under the fifth subdivision which is conducting a confidence game, a card sharp, a professional gambler.”

It is sufficient to say that there is no merit in this contention.

Evidence covering the commission of another offense is always admissible when two crimes are so linked together in point of time and circumstances that one cannot be fully shown without proving the other.

Evidence otherwise relevant is not rendered inadmissible because it shows the commission of another and different offense. Cannon v. Territory, 1 Okla. Cr. 600, 99 P. 622; Littrell v. State, 21 Okla. Cr. 466, 208 P. 1048.

The instructions given by the court, to which no objection was made or exception taken, fully covered the law of the case.

It is our conclusion, after a careful examination of the entire record, that the defendant had a fair and impartial trial, and that his conviction is sustained by the evidence and the law.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

DAVENPORT, P. J., and BAREFOOT, J., concur.