text:
    FLOYD GIBSON v. STATE.
    No. A-6818.
    Opinion Filed Nov. 30, 1929.
    Rehearing Denied Jan. 4, 1930.
    (283 Pac. 790.)
    Darnell & LaRue, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was by information charged jointly with Elmer Ridenhour, Jake Furnish, Curt Pollett, and Minnie Williamson, with the crime of assault with intent to commit rape. The defendant, Floyd Gibson, was tried separately and found guilty, and his punishment fixed at confinement in the state penitentiary for five years, term to begin at the date of the delivery of the defendant to the warden of the state penitentiary. Motion for new trial was filed, considered, and overruled, and the case appealed to this court.

The testimony on behalf of the state shows: That on the evening of the alleged offense, which was the 9th of May, 1926, all the defendants excepting Minnie Williamson were residents of Thomas, Okla. They came to Weatherford that Sunday in a one-seated Ford car belonging to this defendant, and brought a jug of whisky or home brew with them and hid it on the outskirts of Weatherford. After they got to town, the defendant and Elmer Ridenhour got Minnie Williamson and went to the home of Rita Marical, and pursuaded Rita to take a ride with them, on the promise of taking her to church that evening. All the parties got into defendant’s car and started out on the road north of town. They had not gone very far until Elmer pulled Rita off the lap of Minnie Williamson over on his lap. Gibson laughed and turned off on a lonely road. When Ridenhour was attacking Rita, she called for help, but did not get it.

“I asked Gibson to help me and he just laughed. Gibson took me by the hand when I was struggling to get away from Ridenhour.”

The record shows that, after Rita Marical got away from Ridenhour, she ran back up the road, and the defendant took Ridenhour in his car and followed Rita and stopped the car when they had overtaken her, and there let Ridenhour out of the car and Ridenhour renewed his attack upon Rita the second time. Rita escaped from Ridenhour after choking him into unconsciousness and started back through the plowed fields to Weatherford, and reached the garage at her father’s house when she was again met by this defendant, Jake Furnish, and Minnie Williamson, all riding in defendant’s car.

The prosecuting witness further’ testified: That Minnie Williamson got out of the car and came running toward her; Jake Furnish got out of the car also. They stood there in the corner of the yard and talked a while—

“The car was near me and they talked loud enough that I could hear what they said. Floyd Gibson was in the car when they were talking to me. They wanted me to go with them. Jake Furnish promised to protect me, and promised to bring me right back if I would show them where Elmer Ridenhour was. You see, I refused at first and said, No, he is out there Avhere I killed him, at the side of the road;’ and they said he was not there. I did not tell them on which side of the road I left hiru; after they made the promises they did I went with them. Floyd Gibson, Jake Furnish, and Minnie Williamson and myself were in the car. I was riding partly on Minnie’s lap and partly on Jake’s; we went the distance of about a block when we saw Curt Pollett. I was holding my . head in my hands and raised up just as they spoke to him and stopped the car. My back was to the steering wheel. I turned around and saw him getting over the fence carrying a jug. He handed the jug to Floyd Gibson and he turned it up, ánd handed it to Jake Furnish. I don’t know whether there was anything in it or not. They offered the jug to me and I told them I did not drink. We then started down the road to the place where I told them I had left Elmer. This is the first time I had seen Pollett that evening. When we got back to the place where I left Ridenhour, he was on the inside of the fence leaning on a post. Floyd Gibson was driving the car. When the car stopped Ridenhour crawled over the fence, and I heard him say he was freezing to death. He got on the fender of the car. He was in his shirt sleeves. Floyd Gibson drove on, and I began pleading with them to take me home. Floyd Gibson said he was just going up to the corner and would take me home. They did not turn back and take me home as they promised. I asked the defendant why he was going that way, and he said he was going around the other section line and take me back, but he stopped again near the place where he had stopped the car before. They all got out except Jake Furnish and myself; and Floyd Gibson, Minnie Williamson, Curt Pollett, and Elmer Ridenhour went probably as far as (indicating) from the car and stopped there in a crowd, I would say five or six feet from the car. I saw Floyd Gibson fall to the ground, or anyway I saw his form go down. I saw Minnie Williamson stoop down and help him up. Jake Furnish was trying to pursuade me to get out of the car. He told me he wanted to tell me something. Jake Furnish pulled me out of the car and pulled me a few feet from the car, probably ten feet, and pulled me over to a bank on the right side of the road, and when he began to get me down I screamed. I began to call for Minnie to help me. About that time Curt Pollett and Elmer Ridenhour came up and Jake asked these boys to help him, telling them to hold my hands and feet. Elmer was on one side and had hold of one hand and one foot, and Curt Pollett was on the other side, and he said, ‘Now you hold her while I get her bloomers down,’ and he moved me over and said, ‘Pull them down on that side.’ He had just succeeded in getting that far, and his head was holding my head down, when it seemed as though his cheek was right near my mouth and I bit him on the cheek. About this time I saw this light come over the hill. My skirts were up to my waist, I was trying to prevent them from hurting me; I used every effort. I screamed and I prayed to the Lord for help; and asked Minnie to help me. The defendant did not do anything to assist me while I was praying for help. He did not take hold of the other parties or offer to stop them. After they had hold of my feet I could not do anything further. The last thing I did was to bite Curt Pollett. A car light flashed over the hill, and they began to turn loose and drag me up and pulled me over the fence. I was screaming for help, and the men were using profane and obscene language, and they told me if I did not be still they would choke me to death. I said, ‘Minnie please help me;’ that is part of it. Minnie was only a few feet from me, but she did not render any assistance. The parties in the car that came to my assistance were Mr. Griffis and Mr. Barton, and Mrs. Barton and two children. When I saw the car light I hollowed, ‘Help, plegse help me.’ Jake Furnish stayed with me until the last minute; the other two had already run over in the field, and then Furnish turned me loose and ran too. I then begun to struggle toward the fence. Mr. Griffis and Mr. Barton put me in the car and took me back to Weather-ford.”

Ira W. Griffis and George W. Barton corroborated the prosecuting witness as to the statement that while on the highway they heard some one screaming and drove the car down to where she was, and when the car drove up and stopped near the car of the defendant they heard parties running off through the wheat field, and the prosecuting witness came to the fence with her face bruised and her clothing disarranged and so weak she could hardly walk. The witnesses Mr. Griffis and Mr. Barton placed the girl in Barton’s car and drove her to her father’s home.

The testimony of the state further tends to show that later on in the evening the parties were found near the edge of the town of. Weatherford with their car lights turned off, the car tag taken off and in the back of the car; that some of them were arrested there and others ran; and that, while they were trying to arrest the ones that were driving, the driver of the car, this defendant, turned the motor on and drove hurriedly away; all of the defendants were later arrested and a preliminary held, and the defendants were held for trial.

At the close of the state’s testimony, the defendant demurred to the evidence, on the ground that it was not sufficient to connect the defendant with the offense.

Minnie Williamson was called as a witness on behalf of the defendant, and detailed, in substance, the going to the home of the prosecuting witness and getting her to go out riding in defendant’s car, stating: That, when they started out Floyd Gibson was driving and she was sitting in the center of the car, Elmer Ridenhour was next to her, and—

“Rita was sitting on my lap. After we started, Rita set on Elmer’s lap. I don’t know how she came to set on his lap; she made a fuss about it. I did not see the defendant, Floyd Gibson, do anything to her, or hold her while I was out there. I did not see anybody try to rape Rita Marical on the first trip out there; we had a fuss was all. I don’t know what she and Elmer were fussing about. Floyd was sitting under the wheel. I don’t remember Floyd catching her hair in his shirt sleeve. He had his arm on the back of the seat. I told Elmer and Rita two or three times to quit fussing and behave themselves. We went back to town without them. When we got out of the car the first time, I did not say anything to her about coming back. I did not know where she went; when she got out she ran off and left the car; that is all I know. Neither Rita Marical or Elmer Ridenhour came back to town with us on the first trip. We met Curt Pollett and Jake Furnish. The defendant, Floyd Gibson, and .1 asked them if they had seen Elmer, and they said they had not. We started back to hunt for Elmer. Curt Pollett was driving Floyd Gibson’s car When we started back we went up to Rita’s home. We saw her right at the garage. We got her in the car and drove back to find Elmer. We went back on the second trip close to the place we first were that evening. We found Elmer. He wanted Ms coat and said he was cold, and asked about his hat, and we drove back to the place where they had been before to get his hat. Elmer was the one suggested looking for his hat. Curt Pollett drove us to the place where we went to look for the hat. We all got out of the car. It was dark then. Curt Pollett and Elmer Ridenhour was looking for his hat. Floyd Gibson and I were just standing there, and Jake Furnish and Rita left the car. The defendant did not touch Rita in any way. The boys got something to drink, I don’t know what it was, before we found Elmer Ridenhour. I don’t remember Rita making any complaint about us taking her home. It was stated in her presence what we were going up the road for.”

On cross-examination, the witness stated:

“Nothing unusual took place that I know of. I never saw Jake Furnish do anything wrong toward Rita, nor did I see Pollett do anything wrong. I don’t remember Rita saying about going to church that night. I heard somebody hollow, but I did not know they hollowed for help.”

The testimony of the witness Minnie Williamson tends to show that she did not know anything wrong was going on there the first or the second trip they made out to the place where the offense is alleged to have been committed. She admits she pursuaded the prosecuting, witness to go out there, and she admits she heard some one hollow. She also admits that each trip she got the prosecuting witness to go out with them the defendant in this case drove the car, and that it was his car they were using; that when they went out the last time the witness, defendant, Pollett, and Ridenhour got out and left Furnish and the prosecuting witness in the car, and finally the prosecuting witness got out.

There is no denial on the part of the witness that Mr. Griffis and Mr. Barton and his family came to the rescue of Rita Marical, and that the parties ran off and left the girl there. The defendant in his own behalf testified, in substance, to what is detailed by the prosecuting witness on the first trip, but tries to show that, when Ridenhour was taking liberties with the person of the prosecuting witness, a button of his shirt caught in Rita’s hair, and that is the reason why he held her hands. He admits they drove away and left the prosecuting witness out in the country with Ridenhour and went back to' town and got Furnish and Pollett and a jug which they brought with them from Weatherford. They afterwards saw the prosecuting witness at the garage near her home, and Minnie Williamson went and talked to her and they persuaded her to go back with them and help find Ridenhour, whom the prosecuting witness thought she had choked to death. They all went back in the car, and defendant admits they drove from place to place and finally found Ridenhour, and drove back to Avhere Ridenhour had originally taken the prosecuting witness out of the car; he then claimed he got out of the car, and that later the prosecuting witness and Furnish got out of the car. He admits they were all there together; and he admits some one hollowed, but he did not know who it was hollowing for help. He also admits that Mr. Griffis and Mr. Barton rescued the girl and that the men ran off. He admits that when nest seen he was in town in company with Furnish, Ridenhour, Pollett, and Minnie Williamson; that, when the officers came up, some of them ran off, and the first chance he had he started the motor and ran off in his car and was finally arrested.

Pollett testified, in substance, the same as Minnie Williamson and the defendant. There is no dispute that there was an attempt to rape the prosecuting witness; that all the parties were there; that the defendant assisted on both occasions in getting the prosecuting witness out to the place where the offense is alleged to have been attempted ; that he did nothing to rescue her, but was present with the crowd he had brought out there until the girl was rescued by Mr. Griffis and Mr. Barton.

This is all the testimony it is deemed necessary to set out for the purpose of reaching an opinion in this case.

The defendant assigns six errors alleged to have been committed in the trial of the case; the first being that the court erred in overruling defendant’s motion for a new trial. Second, the court erred in overruling the defendant’s demurrer to the information; the defendant contending that the court erred in not sustaining his demurrer to the information, contending further, there are no allegations in the information that in any wise advise the defendant of the facts he would be called upon to meet. An examination of the information shows that this defendant, with the other defendants named in this opinion, were jointly charged with the crime of assault with intent to commit rape. Under our statute, we hold, the information stated sufficient facts to put the defendant on his notice of the charge that he was expected to meet. Where the defendant is jointly charged with others in the commission of a crime, it is not necessary to allege a conspiracy or to allege in detail all the facts the state expects to prove. It is sufficient to charge them with the crime set out and described in the information. Wertzberger v. State, 25 Okla. Cr. 1, 218 Pac. 721; Dickson v. State, 26 Okla. Cr. 403, 224 Pac. 723. The court did not err in overruling the demurrer of the defendant to the information.

The defendant next contends that the court erred in overruling his motion for a new trial, in admitting evidence incompetent, irrelevant, and prejudicial to the rights of the defendant, and improperly instructing the jury as to the law in his case. All of these assignments are embraced within the assignment that the court erred in overruling the defendant’s motion for a new trial.

The record in this case discloses an unusual condition. Two men and a woman go to the home of the prosecuting witness and invite her to get in the car and go with them for a drive, and, as she says, they would get her back in time to go to church. They drove out the road a distance when one of the men, Elmer Ridenhour, began to make advances toward the prosecuting witness. After the car had been driven off the main highway into a cross section road, the defendant in this case and Minnie Williamson left the. prosecuting witness and Ridenhour out on this road in the country. Later, it appears they were watching and saw the prosecuting witness near the garage at her father’s home, where they approached her and asked her where Ridenhour was, and they say the prosecuting witness told them she thought she had killed him. They did not go back and hunt for Ridenhour, but induced the prosecuting witness to again get in the car and go with them. After the defendant and Minnie Williamson, with Rita Marical in the car, had driven some distance, they came upon Jake Furnish and Curt Pollett. Furnish got in the car, and Pollett on the running-board; Pollett had a jug of whisky or some kind of a drink which he passed to the defendant and to Furnish, and they turned it up as if drinking. They tried to get the prosecuting witness to drink, and she refused. They then drove back down the road a piece and found Ridenhour. They claim Ridenhour wanted to go hunt his hat. Ridenhour gets on the running-board of the car, and they all drive back to the place where they had driven on the first trip. The defendant, Minnie Williamson, Ridenhour, and Pollett got out of the car, leaving, Jake Furnish and Rita Marical in the car. Later the prosecuting witness got out of the car and so did Furnish. The defendant and Minnie Williamson say they did not know anything Avrong was being attempted on the person of Rita Marical, but the testimony of the minister of the Gospel, Mr. Griffis, and Mr. Barton is to the effect they heard the screams of the girl and Avent to her rescue, and, when they got there, they heard other parties running away from the scene where Rita was. They took her home.

The defendant denies any knowledge of any intention, of Ridenhour, Furnish, or Pollett to attempt to rape the prosecuting Avitness. In considering the question of his guilt or innocence, it is necessary to consider his actions at the time the screams were heard, when the witnesses Griffis and Barton came to the rescue of the girl, and the parties ran from the scene.

The record discloses that, from the time the defendant and other parties appeared in the town of Weather-ford, he was in the car driving them from place to place, and on all occasions he was in the car and was near enough to know what was going on. His actions clearly indicate that he did not desire to interfere, and that he refused, both in the car and out of the car, to prevent the parties that were assaulting the prosecuting witness from carrying out whatever purpose they had in mind, and that, when appealed to by the prosecuting witness, he laughed and stood by, notwithstanding her screams were loud enough to be heard quite a distance away by the prosecuting witnesses Griffis and Barton.

The record in this case is sufficient to warrant the jury in convicting Pollett of an attempt to commit rape. The question then to be determined in this ease is, Is the testimony sufficient to show that this defendant, by his action or words, aided, abetted, or assisted the other parties to attempt to carry out their purpose? The defendant contends that the facts and circumstances are consistent with his innocence, and that the trial court should have instructed the jury to return a verdict in his favor, and that the verdict is not supported by sufficient evidence. All of the facts and circumstances indicate the defendant was assisting in getting the prosecuting witness out in the country, and was present on all occasions when she was driven out the road, and that he did everything he could to give Bidenhour, Pollett, and Furnish an opportunity to commit the crime that was attempted on the prosecuting witness. The fact that this defendant did not go to the prosecuting witness when she screamed is a circumstance strongly indicating that the defendant knew what was going to be attempted, and his failure to assist her when she appealed to him and continued to scream clearly indicate that he knew what the other parties were attempting to do to the prosecuting witness.

In Blanck v. State, 14 Okla. Cr. 339, 169 Pac. 1130, 1132, this court said:

“This court has repeatedly held that the least degree of concert of action or collusion makes the act of one conspirator the act of all, and each conspirator is liable for the act of each other conspirator done in pursuance of such conspiracy.”

We hold that the evidence was sufficient to warrant the court in submitting the case to the jury. The defendant further contends that the court committed an error of law in its instructions to the jury, and in refusing to give certain requested instructions by the defendant. After a careful study of the instructions given by the court, we hold they correctly state the law applicable to the facts contained in the record, and for this reason the court did not err in refusing to give the instructions requested by the defendant. The instructions requested by the defendant are substantially covered by the instructions given by the court, and the refusing of the court to give the requested instructions did not prejudice the rights of the defendant. Brown v. State, 42 Okla. Cr. 11, 273 Pac. 1018.

The evidence is sufficient to sustain the verdict. The instructions were fair to this defendant and substantially stated the law. Finding no prejudicial errors in the record, the judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    WALT THOMAS v. STATE.
    No. A-6963.
    Opinion Filed Jan. 4, 1930.
    (283 Pac. 1037.)

      N. S. Corn, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Dewey county on a charge of having possession of six cases of beer, and his punishment fixed at a fine of $150 and confinement in the county jail for 30 days.

The defendant complains that the court erred in its instructions in placing the burden of proof upon the defendant. Instructions No. 6 and 7 read as follows:

“No. 6. The jury are instructed that if they find and. believe from the evidence in this case that the defendant did not have in his possession more than one cask of beer, or that he did not have more than one.cask of malt liquor which was intoxicating, all as alleged in the information, then it will be the duty of the jury to find the defendant not guilty, and so say by your verdict.”
“No. 7. The jury are instructed that if there exists in the minds of the jury any reasonable doubt as to whether the said defendant did at the time alleged in the information, have in his possession more than one cask of beer or more than one cask of malt liquor which was intoxicating, then it will be the duty of the jury to acquit the defendant.”

In the case of Price v. State, 1 Okla. Cr. 358, 98 Pac. 447, 448, this court said:

“Where there is a correct instruction upon a material question in a case, and in another portion of the instructions there is an incorrect statement of the law upon the same question, it cannot be said that tbe law has been clearly and carefully given to the jury, and reversible error has been committed.”

In an unbroken line of decisions since the day Judge Furman laid down the rule in Price v. State, supra, this court has uniformly held that contradictory instructions and instructions that place the burden of proof upon the defendant are erroneous, and that where such instructions are given the cause will be reversed. Davis v. State, 4 Okla. Cr. 512, 113 Pac. 221; Hooper v. State, 26 Okla. Cr. 227, 223 Pac. 209; Jay v. State, 42 Okla. Cr. 32, 274 Pac. 487.

For the reason that instruction No. 6 places the burden of proof upon the defendant, and for the further reason that instructions 6 and 7 are contradictory, the cause is reversed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    N. L. MORELAND v. STATE.
    No. A-6682.
    Opinion Filed Jan. 2, 1930.
    (283 Pac. 1036.)

      Freeman E. Miller, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Payne county on a charge of unlawfully selling one pint of intoxicating liquor, to wit, whisky, and his punishment fixed at a fine of $250 and confinement in the county jail for a period of 30 days. From this judgment he appeals.

The defendant complains, first, that the court erred in overruling his application for a continuance on account of the absence of two witnesses whose evidence, defendant alleged, was material to his defense.

In the case of Herndon v. State, 35 Okla. Cr. 371, 250 Pac. 942, this court said:

“An application for a continuance on account of the absence of witnesses is addressed to the sound discretion of the trial court, and, unless an abuse of discretion is shown, a judgment will not be reversed on appeal.” Boswell v. State, 8 Okla. Cr. 156, 126 Pac. 826; Hill v. State, 17 Okla. Cr. 356 188 Pac. 695; Green v. State, 29 Okla. Cr. 145, 232 Pac. 853; Worley v. State, 42 Okla. Cr. 243, 275 Pac. 398.

If the testimony of the absent witnesses cannot be procured from some other source, this fact should be stated in the affidavit, and, if it can be procured from some other source, the motion should contain a statement as to why it was not so obtained. It appears from the record that the evidence of these absent witnesses was cumulative, and for that reason also the court did not err in overruling defendant’s application for a continuance.

The defendant next complains that the state’s witnesses, Woods and Smith, who testified to purchasing the whisky from the defendant, were employed by the authorities of Payne county to procure evidence, and were paid $10 per day and expenses for such services. These facts were all brought out in the trial, and were all before the jury, together with the testimony of the defendant, and, as the jury found against the defendant and apparently believed the evidence of the witnesses for the state, this court will not weigh the evidence nor consider the question of the credibility of the witnesses. State v. Duerksen, 8 Okla. Cr. 601, 129 Pac. 881, 52 L. R. A. (N. S.) 1013; Loudermilk v. State, 33 Okla. Cr. 146, 242 Pac. 1060; Surrell v. State, 43 Okla. Cr. 94, 277 Pac. 282; Adams v. State, 43 Okla. Cr. 179, 277 Pac. 688.

There are other errors complained of, but they are Avithout merit. For the reasons stated, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


author: PER CURIAM.

text:
    JIM J. ALTENRIED v. STATE.
    No. A-6975.
    Opinion Filed Jan. 4, 1930.
    (283 Pac. 1035.)

      L. F. Robertson, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Woodward county on a charge of having, possession of one quart of whisky, and his punishment fixed at a fine of $250 and confinement in the county jail for 30 days.

The evidence of the state ivas that a search of the premises occupied by the defendant resulted in the finding of a quart of whisky near a fence post about 250 yards from defendant’s house, and that there were tracks leading from the house out to where this whisky was found. The only evidence tending to connect the defendant with the possession of this liquor was that it was found on his premises. The amount of liquor found being insufficient to make a prima facie case, and there being no other evidence in the case tending to connect the defendant with the possession of the liquor, or to establish intent, the trial court should have sustained the defendant’s demurrer to the evidence.

For the reasons stated, the cause is reversed.


text:
    W. P. WALTERS v. STATE.
    No. A-7026.
    Opinion Filed Jan. 4, 1930.
    (283 Pac. 1033.)

      Crowe & Crowe, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Garfield county on a charge of having possession of eight barrels of mash, and his punishment fixed at a fine of $50 and confinement in the county jail for 30 days.

The evidence of the state is that the officers visited the premises of the defendant with a search warrant, and, upon accosting the defendant, he denied that there was any liquor or mash upon his premises. Upon a search, however, the officers found eight barrels of mash down on the creek bank buried under about a foot of earth and covered over with brush and trash. At the time the mash was uncovered the defendant said: “Well, that’s all there is on here,” and later said it had been on the place about a week; that the Popp boys came and offered him $5 a barrel to set some mash on his place; that a day or two-after the Popp boys left he got to hunting around, and found the mash, but made no report of it to the officers. The fact that the mash was found on the premises of the defendant, and that he knew it was there, together with the other circumstances in the case, were sufficient to justify the jury in finding the defendant guilty. The jury were not bound to believe the defendant’s explanation that the mash belonged to other parties who had tried to- bribe him to permit them to set it on his place, and they evidently did not do so, since they found him guilty.

The defendant next contends that the court erred in orally advising the jury. The record discloses that the jury returned in court and inquired of the court if a less penalty could be fixed than 30 days and $50.

“Thereupon the court gave to the jury the following oral instruction: Gentlemen of the jury, you are again instructed that the minimum penalty in this case is a fine of $50.00 and thirty days in the county jail, and the maximum penalty is six months in the county jail and a fine of $500. The verdict of the jury in this matter is final. It cannot be remitted by the court or the judge of the court; it can only go through the regular channels of the Board of Pardons of the State of Oklahoma.
“By Mr. Grower Exception to the remarks of the court, and that the instructions are oral instead of in writing.”

In the case of Bird v. State, 22 Okla. Cr. 263, 210 Pac. 925, in paragraph 2 of the syllabus, this court said:

“If oral explanations by the court are made which do not materially alter the written instructions, and which have no tendency to confuse the jury, the verdict should not be disturbed.”

The oral instruction complained of did not materially alter the written instructions, and had no tendency to confuse the jury, and the giving of the same was not reversible error.

For the reasons stated, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


author: DAVENPORT, J.

text:
    A. PAYNE v. STATE.
    No. A-7042.
    Opinion Filed Jan. 4, 1930.
    (283 Pac. 1030.)
    Morris & Tant, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was charged by information with the crime of unlawfully having possession and under his control approximately one ounce of morphine, was tried and convicted, and his punishment fixed at five years in the penitentiary. The record was perfected, and the defendant has appealed to this court.

The record in this case discloses that the state called B. F. Richards, and he testified to having seen the defendant leave a package in the weeds by the fence on his farm; he got into communication with the sheriffs office, and a deputy came out and got the package; it was taken to the courthouse and turned over to the sheriff’s office; prior to the day of the trial, or on that day, Mr. Richards ivent to the sheriff’s office and was delivered a can looking like the can he and the deputy sheriff delivered to the office several weeks before that he saw the defendant leave by the fence near his farm, bnt witness stated he had not had possession of the can or its contents since he delivered it to the deputy sheriff, A. A. Crossley, on or about the 2d day of July, 1927; the trial was had on the 25th day of September, 1927.

The witness further testified he could not tell whether the can had the same contents it had when delivered to the deputy sheriff, and neither Deputy Sheriff Crossley, nor any one from the sheriff’s office who might know where the can had been kept, were called to testify that the contents of the can were the same contents that were in the can at the time the deputy brought it in from Mr. Richards’ place; the witness Richards testifying to getting the can the morning of the trial and taking it to a chemist to ascertain what its contents were.

The state offered Exhibits 1 and 2 in evidence, as a part of the state’s case in chief, and the defendant objected on the ground that it was irrelevant, incompetent, and immaterial; no proper foundation laid for the introduction of the testimony, there being no evidence in the record connecting the defendant with the exhibits.

The court then said:

“There is a very serious question arises in this case, gentlemen, and that is this; on that objection, and I think it is a matter ought to be determined now, and that is this: up to this time there is no evidence before this court to show that the contents of these exhibits are the same thing’s—same as the contents were then. I think it is necessary to show the contents of this box are the same "things were in the box the time this box was found. I want to say this that I have never tried a dope case yet but what there wasn’t any question about the contents that the man is alleged to have had in his possession, not one single case have I-tried. You ought to bring somebody from the sheriff’s office to show these packages were in the custody and control of the sheriff’s office at the time they were delivered there until they were delivered to Mr. Bichards this morning. I think anybody from the sheriff’s office—Mr. Bichards says he saw the packages put in the safe. I think anybody ought to' be able to testify these packages were in the custody of the sheriff there and have been since that time. I think this case is in this situation: that the witness testified in this case the contents of these packages—the most he can say about it and the most he does say is that they resemble the contents that were in the package the time he saw them out at the farm and in the road. Now in my judgment that puts this law suit in such a situation it is a matter may be submitted to the jury and let the jury determine whether or not the contents that are in this package and that paper are the same as was in them at the time this package was found out on the farm and the box found on the farm and the package picked up in the road, and the jury has got that evidence before it. I will submit that question for the determination of the jury.
“Defendant excepts to the remarks of the court on the evidence.
“The Court: The exception is allowed.
“The defendant excepts to the introduction of the exhibits in evidence.
“The court overruled the objection of the defendant to the introduction of the exhibits, and defendant excepted.
“The state then rests its case.”

At the close of the state’s testimony, the defendant demurred to the evidence introduced by the state for the reason that the same is insufficient to support the charge laid in the information, which demurrer was overruled, and defendant excepted.

The defendant then moved the court to direct a verdict of not guilty, for the reason that the evidence is insufficient to require the defendant to answer the same, and especially for the reason that the state has wholly failed to show the contents of Exhibits 1 and 2 are the same as those found by the deputy sheriff and the witness Richards at the time testified about.

“Mr. Tant: It is a little out of order, but the defendant especially objects at this time and moves the court to withdraw from the consideration of the jury all the memoranda and notations on the respective exhibits 1 and 2 of the state for the reason the same is not identified in any manner with the defendant.
“Mr. Powell: The state only offers in evidence the package and the can and the contents.
“The Court: I only admit that part of the label the chemist testified he put on; what is on the labels will not be considered by the jury.
“Mr. Tant: The defendant will stand on his demurrer and motion for a directed verdict.
“Mr. Powell: I would like the record to show they don’t care to introduce any evidence but rest.
“Defendant objects to the remarks of the county attorney to let the record show we don’t care to introduce any evidence.
“The Court: That is what it means when you stand on your demurrer and directed verdict that you don’t want to introduce any testimony. Let the record show the defendant stands on his demurrer to the evidence and motion for an instructed verdict.
“Defendant excepts to the remarks of the county attorney and as to the court what that means.”

The defendant has filed ten separate errors alleged to have been committed by the trial court. The errors we deem necessary to consider are as follows:

“4. Error of the court in overruling the demurrer to the evidence of the state.
“5. Error of the court in refusing the peremptory instructions requested by the defendant.”
“7. The verdict is contrary to the evidence and is not supported by the evidence.”

These three assignments will he considered together, as they relate to the insufficiency of the evidence to sustain the verdict in this case. After a careful reading and study of the testimony and the statements of the court made from the bench at the close of the state’s testimony, we fail to find any evidence in the record whatever which tends to show that the cans introduced in evidence in this case contained the same substance they did when the witness Richards testified he saw the defendant with one near his farm. Why, we cannot say, hut the state failed to call any one from the sheriff’s office to show where the can had been kept, and that the contents of the cans were the same they were when they were delivered to the deputy sheriff by the witness.

Th defendant in this case may be guilty as charged in the information, but before a judgment of five years is permitted to stand it is the duty of the state to prove ‘him guilty. We do not think the testimony in this case is sufficient to sustain the sentence and judgment. The demurrer of the defendant to the evidence and his motion for a directed verdict and his motion for directed verdict were both well taken and should have been sustained by the court.

There are other errors assigned, but the errors considered are sufficient to dispose of this case, and it is not deemed necessary to consider them. There being no competent testimony to sustain the judgment, the case is reversed.

EDWARDS, P. J., concurs.

CHAPPELL, J., dissents.


text:
    DAN MILLER v. STATE.
    No. A-6958.
    Opinion Filed Jan 4, 1930.
    (283 Pac. 1029.)
    Thomas Norman, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Choctaw county on a charge of having possession of 30 gallons of whisky, and his punishment fixed at a fine of $100 and confinement in the county jail for 30 days.

The evidence of the state was that the premises of the defendant were searched under a search warrant. No liquor was found on defendant’s premises, but just across the road opposite from defendant’s house 30 gallons of whisky were found on a sandy knoll. Fresh tracks led from defendant’s house across the road and up to the liquor. There was a well-beaten path from defendant’s house to the liquor, and a wide place by the side of the road in front of defendant’s house indicating, that cars had been frequently stopped there.

The court instructed the jury that the state relied for conviction upon circumstantial evidence. The instructions of the court fairly submitted the question of the guilt of the defendant under all the circumstances of the case to the jury. The defendant did not take the stand, and offered no evidence. There being competent evidence to support the verdict of the jury and the errors of law complained of being without merit, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    CLYDE STEARNS v. STATE.
    No. A-6999.
    Opinion Filed Jan. 4, 1930.
    (283 Pac. 1028.)
    Dale, Brown & Eloyland, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Logan county on a charge of having possession of intoxicating liquor, and his punishment fixed at a fine of $50 and confinement in the county jail for a period of 30 days.

The defendant was informed against on the 7th day of February, 1927 and on the same day was arraigned, entered his plea of not guilty, and was released on bond. On the 10th day of October, 1927, defendant filed motion to dismiss said cause for failure of the state to bring the defendant to trial at the next term of court as required by section 2913, C. O. S. 1921. This motion to dismiss was not passed on until the 15th day of February, 1928, Avhen the same was overruled. It appears from the record that the defendant was present with his witnesses at the April, July, and October terms of court demanding trial, and that the cause was continued each time over his objections. This court has repeatedly held that the state must either bring the defendant to trial at the next term of court unless the cause be continued by arrangement of the state and the defendant, or unless the said cause is continued upon application of the state for good cause shown. Parker v. State, 7 Okla. Cr. 238, 122 Pac. 1116, 124 Pac. 80; Smith v. State, 27 Okla. Cr. 294, 227 Pac. 901; Clinkenbeard v. State, 40 Okla. Cr. 113, 267 Pac. 485; Harris et al. v. John B. Ogden, 44 Okla. Cr. 418, 281 Pac. 316.

The defendant having made a sufficient showing to entitle him to a dismissal of the cause for failure of the state to bring the case to tidal at the next term of court as required by law, and the state having made no showing to the contrary, it was reversible error for the trial court to overrule the motion to dismiss the case.

For the seasons stated, the case is reversed, with directions to the trial court of Logan county to dismiss the case.


text:
    TOM MOFFITT v. STATE.
    No. A-7030.
    Opinion Filed Jan. 4, 1930.
    (283 Pac. 1027.)
    Hugh A. White, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Hughes county on a charge of having possession of intoxicating liquor with intent to barter, sell, or otherwise dispose of same, and his punishment fixed at a fine of $250 and imprisonment in the county jail for a period of 90 days.

The record discloses that on the same day, and immediately preceding the trial of this cause, the defendant, Tom Moffitt, was placed on trial in the same court upon a charge of having sold a quantity of whisky. At the close of the state’s case the court sustained a motion for a directed verdict of not guilty, on the ground that the state’s witness did not identify the defendant as the man who sold him the liquor.

It appears from the record that five of the jurors who tried the instant case sat upon the jury that tried the former case, and the sixth member of the jury that tried the instant case was in the courtroom during the former trial and heard all the testimony in that case. When the jury was being impaneled, defendant challenged for 'cause each of the six jurors, who returned the verdict against the defendant, upon the ground that each of said jurors had heard the testimony of the former trial, and that the knowledge of these material facts prohibited the defendant from having the fair and impartial jury guaranteed by the Constitution. The court, after questioning the jurors, overruled the defendant’s challenge, and he now assigns this ruling of the court as his first error.

Under the Constitution and laws of this state, it is a fundamental principle that fairness and impartiality are prerequisite qualifications in all jurors who are called upon to try a defendant in a criminal action. Although the trial judge in this case asked the jurors whether what they had seen and heard in the former trial would affect their verdict in this case, and although their answer was in the negative, yet this court cannot say that, in light of all the facts and circumstances as presented by the record, the jurors in this case could have a fair, impartial, and unbiased attitude or opinion in rendering a verdict against this defendant.

In the case of Popp v. State, 44 Okla. Cr. 220, 280 Pac. 478, 479, this court said:

“Where the fairness and impartiality of a juror is called in question, the trial court must be clearly satisfied that the juror is fair and impartial, and any doubt upon that point should be resolved in favor of accused.” Weber v. State, 44 Okla. Cr. 450, 281 Pac. 987.

The mere fact that a juror may be of the opinion that he can try a case fairly and impartially is not alone the test as to his competency. Tegeler v. State, 9 Okla. Cr. 138, 130 Pac. 1164; Temple v. State, 15 Okla. Cr. 176, 175 Pac. 733; Schrimpsher v. State, 32 Okla. Cr. 371, 241 Pac. 201.

The defendant complains of other errors, but it will not be necessary to consider them at this time. For the reasons stated, the cause is reversed and remanded, with directions to the trial court to proceed with the trial of the case before a fair and impartial jury.

EDWARDS, P. J., and DAVENPORT, J., concur.


author: EDWARDS, P. J.

text:
    EVERT McCOLLOCH v. STATE.
    No. A-7235.
    Opinion Filed Jan. 4, 1930.
    (283 Pac. 1026.)

      Joe S. Eaton, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Garvin county on a charge of robbery with firearms, and his punishment fixed at confinement in the state penitentiary for a term of 40 years.

On November 3, 1927, three persons entered the First National Bank of Wynnewood and with firearms held up the officers and employees and robbed the bank of more than $7,000 in cash and something over $25,000 in government bonds. Another person waited outside in a Buick sedan. Defendant was tried separately.

The evidence of the state is that defendant with one W. R. Calloway and one Raymond Wilson were the parties who entered the bank, and that L. L. or Red Calloway waited in a car outside in which the parties escaped after the robbery. Three witnesses positively identified defendant as one of the three persons who entered the bank. A few days subsequent to the robbery, defendant and W. R. Calloway were found together at Tulsa and were apprehended. Prior to the trial of this defendant, W. R. Calloway was tried as one of the participants in the robbery and was sentenced to life imprisonment. He was a witness for the defendant in the trial of this case. The defense was alibi; the testimony by defendant and his witnesses sharply conflicts with that of the state.

The first contention argued is that there is no proof of venue. This contention is not tenable. The evidence upon this point is so conclusive that it may be disposed of without discussion. While it was not proven by direct questions that the offense was committed in Garvin county, yet it is clearly shown that the First National Bank of Wynnewood was robbed at the time as alleged and that the crime was committed at Wynnewood. This is sufficient proof of venue. Ward v. State, 13 Okla. Cr. 81, 162 Pac. 232; Nix v. State, 20 Okla. Cr. 374, 202 Pac. 1042, 26 A. L. R. 1053; Edwards v. State, 25 Okla. Cr. 167, 219 Pac. 427; Groh v. State, 30 Okla. Cr. 396, 236 Pac. 435; Popp v. State, 44 Okla. Cr. 145, 279 Pac. 975.

The next contention is that the court admitted incompetent evidence prejudicial to the substantial rights of defendant. This contention is directed to testimony that two or three days prior to the robbery W. R. Calloway, accompanied by a woman, registered at a hotel at Sulphur under fictitious names, and on November 2, L. L. Calloway and a woman joined them at the hotel and also registered under fictitious names. Late in the afternoon of that day, two men in a Buick car, which car was afterwards used in the robbery, came to the hotel and were seen in conversation with the Calloways. One of these men is identified as Raymond Wilson, one of the parties who went into the bank with defendant and participated in the robbery. The other man in the Buick at the time it came to the hotel was not positively identified. One witness stated defendant greatly resembled this second man, giving it as his best judgment that it was defendant.

It is the state’s theory that defendant was the other man with Wilson in the Buick car, and that the meeting with the Calloways at the hotel at Sulphur was prearranged, and that the parties were in the conspiracy to rob the bank at Wynnewood, and the state contends there is sufficient evidence on this point to make the testimony admissible. It is a well-established principle of law that a conspiracy makes each participant liable for the acts of his coconspirators done in pursuance of the conspiracy; that slight evidence of collusion is all that is required to render competent testimony of the acts and declarations of a conspirator against his coconspirator. Ex parte Hayes et al., 6 Okla. Cr. 321, 118 Pac. 609; Bradshaw v. State, 16 Okla. Cr. 624, 185 Pac. 1102, and authorities cited therein.

See also the more recent cases of Wolfe v. State, 38 Okla. Cr. 412, 262 Pac. 505; Thomas v. State, 40 Okla. Cr. 204, 267 Pac. 1040; Sledge v. State, 40 Okla. Cr. 204, 269 Pac. 385; Elliott v. State, 45 Okla. Cr. 5, 281 Pac. 305.

There is sufficient evidence of conspiracy to make admissible the evidence complained of.

Defendant next argues that the court erred in overruling his motion for a new trial on the ground of newly discovered evidence. This ground of the motion for new trial is supported by an affidavit of one H. H. Martin, in substance that he had been subpoenaed as a witness for the state; that he informed the county attorney that he could not identify defendant as the man whom he saw in company with W. R. Calloway and Wilson on the streets of Wynnewood a few minutes before the bank was robbed; and that he was then discharged by the state. Martin further stated in this affidavit that he saw Calloway and Wilson in the streets of Wynnewood with another man, and that this third man was not defendant. This evidence is material as tending to support the defense of alibi. This witness testified in the trial of the case of State v. W. R. Calloway and the case of State v. Raymond Wilson. His name is indorsed on the information as a witness. An exercise of reasonable diligence would have suggested to counsel for defendant that this witness would be important upon the question of identification; they should have investigated his testimony before, instead of after, the trial. It is well settled that the granting of a new trial on the ground of newly discovered evidence is addressed to the sound discretion of the trial court, arid it is not an abuse of discretion to deny a new trial unléss the claimed newly discovered evidence could not with reasonable diligénce have been discovered before the trial; and further that it is of such character that it would likely change the result should a new trial be granted. Stilwell v. State, 18 Okla. Cr. 10, 192 Pac. 253; Hill v. State, 19 Okla. Cr. 406, 200 Pac. 253; Martin v. State, 34 Okla. Cr. 274, 246 Pac. 647; Carter v. State, 35 Okla. Cr. 421, 250 Pac. 807; Peters v. State, 35 Okla. Cr. 367, 250 Pac. 1032.

Other contentions not herein discussed are set out in the briefs; these have not been overlooked, but have had the attention of the court. The case was closely tried and the cross-examination both by counsel for the state and the defendant were thorough and searching. There are some errors in the record, but we are convinced that none of them are materially prejudicial. On the whole record, defendant had a fair trial, and no reason for a reversal is made to appear.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    ADDIE BARNETT et al. v. STATE.
    No. A-7002.
    Opinion Filed Jan. 4, 1930.
    (283 Pac. 1023.)
    L. C. McLean, for plaintiffs in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Garfield county on a charge of having unlawful possession of intoxicating liquor, and their punishment fixed at a fine of $500 and confinement in the county jail for 6 months for each of them. The defendants were jointly charged, tried, and convicted.

The defendants complain, first, that the court erred in overruling their motion to suppress the evidence taken under the search- warrant. The affidavit filed in the case contains all the necessary allegations of law and fact to authorize the issuance of the search warrant. The motion to suppress the evidence being without merit, the same was properly overruled.

The defendants next contend that the evidence wasi insufficient to support the verdict of the jury. The evidence of the state, in substance, was that the defendant Addie Barnett was in the room where the liquor was 'found and was one of the proprietors of the place; that the defendant Hughes had in his hand a stew kettle containing about a gallon of whisky; that, on seeing the officers, he started to dump the whisky and did succeed in dumping all of it but about a pint. Whisky glasses were found in the room and jugs and bottles smelling of liquor and several intoxicated people in the room.

This evidence was sufficient to support the charge of possession of intoxicating liquor with intent to violate the liquor laws of the state. The defendants complain of other errors, hut they are without merit.

For the reasons stated, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    Ex parte RAYMOND JACKSON.
    No. A-7684.
    Opinion Filed Jan 7, 1930.
    (287 Pac. 786.)

      Heber Finch and W. L. Ransom, for petitioner.
    J. Berry King, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for respondent.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges that he is unlawfully restrained by the sheriff of Seminole county, in the county jail, upon a commitment issued by a justice of the peace; that a complaint was filed in said justice court charging petitioner with forgery and a preliminary hearing had; that there was no evidence showing that petitioner had committed any offense in Seminole county. Attached to the petition is a copy of the record and a transcript of the testimony taken at the preliminary hearing. This) discloses that petitioner is charged with making a certain contract with one Lew Wilder and S. W. Brown, in which he claims to be the owner of certain lands in Seminole county, and contracts with said Wilder and Brown to secure evidence for and to establish his title. This contract was executed before a notary public in Creek county. ■There is no evidence whatsoever that any part of the execution and delivery of the contract took place in Seminole county. In this hearing it was stipulated by the county attorney that the contract in fact wa's executed and delivered in Creek county. The only basis for a prosecution in Seminole county is that, subsequent to the execution and delivery of the contract, the said Wilder and Brown filed the same of record in Seminole county.

The theory of the state is that the petitioner was not the owner of the land in question, and that his pretence of claiming it in the contract and executing a contract in. the name of the owner amounts to forgery. The complaint pleads the contract as the instrument forged.

It is only when the complaint or information upon which defendant is being prosecuted is so fundamentally defective that by no intendment is any crime charged against the party in custody, and it is apparent that the charge cannot be amended to state an offense, that the petitioner will be discharged on habeas corpus. In such case, under the conditions stated, he is entitled to be discharged either before or after conviction. Ex parte Show, 4 Okla. Cr. 416, 113 P. 1062; Ex parte Thornton, 29 Okla. Cr. 382, 234 P. 217; Ex parte Sneed, 38 Okla. Cr. 81, 259 Pac. 156.

Article 2, § 20, of the state Constitution, provides that in criminal prosecutions the accused shall have the right to a speedy and public trial in the county in which the crime shall have been committed. Where an accused is charged with forgery, the venue is in the county where the forgery was actually committed. 26 C. J. 929. It is obvious that, where a complaint upon its face shows that the offense was committed in some other county, the court is without jurisdiction to put the accused on trial. See Egan v. Knewel (D. C.) 298 F. 784; Ex parte Brinkman, 93 W. Va. 351, 116 S. E. 757; Scott and Roe, Habeas Corpus, 290. Where an accused is charged with an offense in a court having general jurisdiction of the offense charged, this court will not discharge him on habeas corpus, unless the complaint on its face discloses that the court is without jurisdiction in the particular case, as where it is undisputed that the offense charged was outside the territorial jurisdiction of the court; that is, that it is undisputed that the offense charged was not committed in the territorial jurisdiction of the court in which the prosecution is being conducted.

In 29 C. J. 67, 54b, it is said: “But a prisoner held under indictment or information may be discharged on habeas corpus where the court in which he is held to answer or the grand jury finding the indictment had no jurisdiction of the particular offense charged, as where the offense charged was not committed within the territorial jurisdiction, or where the process was issued in a case not allowed by law, or where the indictment was found without any legal evidence, or where the grand jury had no legal evidence, or where the grand jury had no legal existence.”

Here the complaint shows that the offense, if committed, was committed in Creek county. It appearing from the complaint and being further stipulated that the acts constituting the offense were done in Creek county, it is therefore apparent that the venue is not in Seminole county but in Creek county, and that, as the crime charged was not committed within the territorial jurisdiction of the court, the court is without jurisdiction to try the petitioner for the alleged offense.

The writ is therefore awarded and the petitioner discharged.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    DORAN PLASTER v. STATE.
    No. A-6715.
    Opinion Filed Dec. 14, 1929.
    Rehearing Denied Jan. 11, 1930.
    (283 Pac. 805.)
    Morris & Wilhite, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was informed against jointly, with Judge Morris and Charley Baldwin, charged with the crime of rape in the first degree; was tried separately and convicted of rape in the first degree; and his punishment fixed at confinement in the state penitentiary for one year. Motion for new trial was filed, considered, and overruled, and exceptions saved, and the case appealed to this court.

The testimony on behalf of the state, in substance, is as follows;

Madeline Finley, called as a witness, testified:

“I am a married woman, married on the 30th day of ' October, 1926; I am 16 years of age; I know Doran Plaster, Judge Morris and Charley Baldwin; before we moved to Binger I lived five miles north and west of Oney with my father and mother; on the 12th day of September, 1926, I lived up there; I went to Swan Lake Church that night with my father and mother in a wagon; the church is a mile and three-quarters from our home; after church Judge Morris asked to take me home; we started home in a Ford roadster; I don’t know who was the owner of the car; we started home about 10 o’clock at night; my father and mother got home before I did; Morris drove a mile and three-quarters north and a half mile east and stopped the car; after he stopped I asked him to go on, and he said he was not in any hurry; about that time the Baldwin boy and Doran Plaster came up to where we were; Doran Plaster jumped out of the car and brought a wagon sheet up to where we were; he threw the wagon sheet down in front of the car and came to the car and told me to get out, and I told him I was not going to do it, and he said he would make me do it; he pulled me out of the car, he and Judge together; they forced me out in front of the car, I caught hold of the braces, and they pulled me away and tripped me; after he tripped me he pulled my clothes down; he took my dress up before I was on the ground; while the defendant was pulling my clothes down, Judge and the Baldwin boy was standing there; after he got my clothes down, he got on top of me, and when he got through he held me for Judge; the defendant had sexual intercourse with me at that time; Judge had intercourse with me, and after he got through the Baldwin boy also had intercourse with me; I was not agreeing to it, I was fighting and crying and begging them to let me alone; I used what force I could; when they got through the Baldwin boy and Judge took me to the corner and the Baldwin boy took me down to the house, and I turned the lights out and took the keys and gave them to Daddy; Judge Morris got out of the car first; it was not quite a quarter of a mile from our house, Charley Baldwin went down to the house with me, and when I turned the lights out and took the key I went into the house and delivered it to my, daddy and told him the boys had insulted me; my father ran out, but the Baldwin boy had gone; I don’t know who came for the car. This occurred in Caddo county, Okla.”

On cross-examination witness stated: They went to church that evening—

“I did not talk to any one outside the church; we left the church house after the services were over; I left with Judge Morris; I first saw Judge Morris outside the church; I did not see any one Avith him; he was close to the church and every one was coming out; I had known him for two or three months; I saw him pretty often; we left the church in a Ford roadster; I did not see Doran Plaster and the BaldAvin boy at church; we did not pass? any one on the road going over to where Morris stopped the car; he stopped the car Avithout saying anything about it; I said, ‘Let’s go on,’ and he said ‘we are not in any hurry;’ Ave had been there just a little Avhile when the other boys drove up; I did not get out of the car until Doran Plaster came up and pulled me out; when Doran came up to the car, he said for me to get out, and I told him I was not going to dO' it, and he got hold of my hands and arms and jerked me while Judge was pushing; then Judge got out; after they got me out of the car, they puled me around in front of the car and tripped me; I got hold of the fender brace, and he pulled me loose from it, got hold of my hands and pulled my dress up while I was standing; I do not know what time I got home that night; the first one that had intercourse with me was Doran Plaster on the wagon sheet; the lights had been turned out on the car; I never saw Harve Johnson that evening; the Plaster boy and Baldwin boy were down there by the road waiting and watching; I was fighting and kicking and Doran told me to be still; we stayed on the ground about five minutes; after he left me he just stood there by the road; he held me while Judge Morris was on me; he held my hands and I was hollowing and crying; after Judge Morris got through he held my hands while the other boy got on me; I knew Harve Johnson, and if he had been present I Avould have seen him; I had never had intercourse with any one before that night; when I went home I told Daddy the boys had insulted me, that I knew tAvo of them, but did not know the other boy; I felt bad when I left where the boys had me; Judge Morris is the one that suggested that we come home after they had me down on the road; the Baldwin boy drove the car, and I sat in the middle; I did not talk with them on the way home, nor did I tell them I was going to tell Father; I told my father.”

Will Miller, the father of the prosecutrix, testified as did the prosecuting Avitness Avith reference to going to church, and his daughter starting home with Judge Morris, and Avhat took place at home when she came in, and Martha Miller, the stepmother of the prosecutrix, testified in substance the same as did her husband, Will Miller.

C. H. Haup testified to seeing the car, and arresting the defendants, Doran Plaster, Charley Baldwin, and Judge Morris; and to seeing some fruit jars in the back of the car; he had a talk with the Morris boy; did not have any conversation with Plaster.

Bill Sullivan testified to being at church that night and talking to the father of the prosecutrix, being present when she asked if Judge Morris could take her home:

“I did not see them leave; I went home with Mr. Miller in the wagon; we got home before Madeline came; when she came in she was crying and ran into the house and told her papa she had been abused; when Madeline came in she began talking to her father; I was in the room and so was his wife; I did not hear her father scolding her about being out late; when she came in she was crying, and that ivas proof to me she had been hurt.”

Ada Sullivan, the wife of Bill Sullivan, testified in substance the same as her husband.

This is in substance the testimony offered by the state.

At the close of the testimony the defendant moved the court to' dismiss the case for the reason that the testimony introduced by the state did not state sufficient facts to constitute an offense against the laws of the state of Oklahoma; and, second, that the demeanor of some of the people that were in the courtroom had been disadvantageous to the defendant. The motion was overruled and exceptions saved.

The defendant called as a witness Judge Morris. He stated he had known the prosecuting witness Madeline Finley, formerly Madeline Miller, about three months; he was at church at Swan Lake on the 12th day of September, 1926; that during the services the prosecuting witness asked him to take her home that evening; she was sitting in a car outside the church:

“She asked me to get two or three boys to come on with me; she never said why she wanted them; later she said she Avanted to come up the road there, and wanted me to wait until they came along; after she talked to me, I asked Doran Plaster, Charley Baldwin, and Harve Johnson; I think Harve Johnson is here now; we drove down the road apiece and had stopped four or five minutes when the other boys came up; the prosecuting witness; first suggested stopping; she did not ask me to take her home before the boys came; after Madeline got out of the car, Harve got out; Madeline and Harve stood there laughing and talking a few minutes; after they all got out of the car, Madeline and I went up the road about a hundred yards; Madeline first suggested that we go up the road; she wanted to go up the road and jazz, and I agreed and went with her; when we got up the road a piece, she laid down on the ground and I got on top of her and jazzed her; I used no threat or violence; she volunteered that we go up there; she never told me to quit or said anything; when I got through she told me to tell one of the other boys to come up there; when I left her and Avent to where the other boys were, she was lying on the ground; she was not crying or anything; I told Doran Plaster, and he went up to where she was; I remained at the car where Doran had been; I could not see what took place when Plaster went up to where Madeline was; they were lying down; Doran was gene about three or four minutes, and when he came back he told Charley Baldwin to go up to where Madeline was; he said the girl said for the boys to come up there; Charley went and stayed about three or four minutes; when he came back he said Madeline said for Harve Johnson to come; Harve went up to Avhere she was, but he is not charged in this case; he stayed four or five minutes; Harve and Madeline came walking back to the car ,and when they got back I asked her if she was ready to go, and she said, ‘yes’; there were no threats or inducements made to lead her to believe we were threatening her or using force to compel here to have intercourse with any of the parties there.”

On cross-examination witness stated:

“I saw the prosecutrix, Madeline Miller, sitting in a Ford touring car outside the church; some boy and girl were in the ear with her; she asked me to take her home from church; after church she asked me if I was ready to go; I got a car from Doran Plaster and was standing down by the filling station; when she asked if I had a car, I told her no, but I thought I could get one, and she said for me to get two or three boys and tell them to come on behind our car; I did not think anything strange about her request, nor did I ask her why she wanted them to go behind us; I drove two miles north and a quarter of a mile east of Swan Lake church and stopped the car and waited until the boys came; we did not talk any during the time we were waiting; when we stopped I never asked her anything about jazzing; just as quickly as the boys stopped the car and killed the engine, Harve Johnson got out of the car, he went up to where Madeline was, and she and. Harve went off and talked; we went to the south side of the car; we did not go up the road east; the other boys were standing by the side of the car at the time; Madeline called to me and said, ‘Let’s go up the road a little piece’: I got out of the car and went up the road a piece with her, and she asked me where would be a good place tO' jazz; we had no 'blanket or anything; I told her that would be a good place, and she lay down; I had not said a Avord about jazzing; we were up the road a short while, as quickly as I could walk up there and jazz and come back; she was still lying there when I left; I told Doran Plaster, and he Avent'up to where she was; he was gone about the same length of time I was, and when he returned he said Madeline said for Charley to come up; when he returned, he said Madeline said for Harve to come, and Harve went up and was gone about as long a^ the others; Madeline then asked me if I was ready to go; it was my first trip out with her; Charley drove the car, and I got out at the corner; she said her father did not like for two fellows to come in with her; there was nothing said between us going from the place to the Miller home.”

Charley Baldwin testified, in substance, the same asj Judge Morris, as to what occurred at the church house and what took place where the prosecutrix alleged the rapé was committed. In fact, the language used by the two Avitnesses was practically the same; the witness admits he drove the car to the home of the prosecutrix after the alleged offense had taken place.

The defendant then called Akeless De Laney, Avho testified he kneiv the prosecutrix and had had sexual intercourse Avith her; that the prosecutrix had asked him to have intercourse Avith her. Earl Robinson also testified he had had sexual intercourse Avith the prosecutrix; he had met the prosecutrix in the road near her home, and she had asked him to jazz her, and he walked off into the brush with the prosecutrix, and she stripped off naked and he had intercourse with her.

Harve Johnson testified for the defendant, and stated he Avent out with the defendant Doran Plaster and Charley Baldwin, and that Madeline was with them:

“I talked with them a while, and finally got out of the car; Doran Plaster and Madeline Avent up the road .first; they Avere gone about ten minutes; all the boys went up the road, and I finally went up there; I did not have intercourse with Madeline. When we drove up, Jud Morris and Madeline were in the car; Madeline got out just as we got there; Doran and Madeline went up the road; I could not see them and could not tell what they were doing; when Plaser returned, one of the other boys went up the road.”

The defendant in his own behalf testified, in substance, the same as Charley Baldwin, Jud Morris, and Harve Johnson. He denied there was any force used. His testimony, in substance, is the same as Morris’ and, Baldwin’s as to what took place at the time the alleged rape took place. From a reading of the record it would seem that they had all thoroughly rehearsed their testimony because of their fixed time they claim they were out there with the,prosécutrix being almost exactly the same. The defense also called as a witness Mr. McDaniels, whose first name does not seem to be in the record, who testified he had a conversation with Madeline Miller, with reference to a man by the name of Clark that worked for her father; the conversation took place four or five years ago ; Madeline told him her father hired Clark to work for him, and the way he payed him was by Clark sleeping with her. The testimony is remarkable, to say the least, for at the time this record was made it showed the age of the prosecutrix to be a little more than 16 years of age. This would have made her, according to the testimony of the witness, 11 or 12 years of age at the time he claims she made this statement.

The defendant called a witness by the name of Floyd Meeks, who testified the prosecuting witness had told him she had a venereal disease and she wanted him to get her some medicine, and that he got it for her some time in October, but the year is not given.

The defendant called Mrs. R. V. Perkins, who detailed a conversation with Madeline, in which Madeline said she might be pregnant; this conversation was about three years before, according to the record, which would have occurred about the time she was 13 years of age. The foregoing is, in substance, the testimony in the case.

The defendant has assigned seven errors alleged to have been committed by the trial court: First, the trial court erred in overruling the motion of plaintiff in error for a new trial. Second, the court erred in overruling the supplemental motion for a new trial. Third, the court erred in failing to instruct the jury upon the whole law of the case. Fourth, the court erred in giving instructions Nos. 8 and 9. The defendant contends in Ms fourth assignment of error that instructions 8 and 9, given by the trial court, were such an error as to entitle him to a reversal of this case.

Section 2739, C. O. S. 1921, is as follows: “Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty.”

Section 2740, C. O. S. 1921, says: “The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.”

It is earnestly urged by the defendant that instructions 8 and 9, given by the court, which in substance told the jury they may convict the defendant of a lesser degree of rape than that charged in the information, was error, for the reason that the information did not contain the words, “previous chaste and virtuous character.”

The information in this case properly charged the crime of rape in the first degree. The defendant went to trial upon that charge without questioning the sufficiency of the information, and the trial progressed and defendant joined issues with the state upon the question of rape in both the first and second degrees, going as far as to call witnesses to disprove the fact that the prosecutrix was a girl of previous chaste and virtuous character, by having witnesses testify that they on different dates had sexual intercourse with the prosecutrix. It is shown by the state the prosecutrix was under the age of 18 years and more than 16 years. The defendant in this case by his own admission had intercourse with the prosecutrix at the date alleged in the information. The only question then to be considered is the question of whether or not the prosecutrix was of previous chaste and virtuous character. The testimony of the state shows she was. The defendant attempted to break that down by calling witnesses who testify they had had sexual intercourse. with the prosecutrix previous to the alleged offense. The question of sustaining a conviction of a defendant tried upon an information charging him with rape in the first degree, and convicted of a minor offense, lias been considered by this court in several cases.

In Pittman v. State, 8 Okla. Cr. 58, 126 P. 696, in the first paragraph of the syllabus the court said: “The offense of assault with intent to commit a rape is included in an indictment for statutory rape.”

In Hallmark v. State, 22 Okla. Cr. 422, 212 P. 322, in the third paragraph of the syllabus, the court said: “In cases where the statutes define a crime in two degrees, and the trial court, without objection, instructs the jury they must ‘find the degree of the crime of which defendant is guilty’, and, under such instruction, defendant is convicted of a lower degree than the law and evidence warranted, the error is such that defendant may not be heard to complain on appeal.”

Under the evidence in this case, the jury might have found the defendant guilty of the crime of rape in the first or second degree, the issue having been clearly joined on both degrees and testimony introduced by the defendant to show the character of the prosecutrix previous to the alleged offense in order that he might be acquitted of rape' in the second degree.

The instructions 8' and 9, given by the court, were fair to the defendant, and his objection thereto is without sufficient merit to justify a reversal of this case on that point.

The defendant in Ms tMrd assignment contends that tbe court erred in failing to instruct the jury as to the whole law applicable to the essential elements of the crime for which the defendant was convicted. After a careful examination of the record, we fail to find wherein the defendant requested the court to give further instructions upon the law applicable to the different elements of the crime of which he was convicted. If the defendant desired' instructions from the court further defining the facts necessary to warrant a conviction of the defendant for rape in the second degree, he should have prepared the instruction and submitted it to the court and requested him to give it, or refuse to give it, and save his exceptions should the court refuse to give the same. Failing in that, we hold that instructions 8 and 9 given by the court, sufficiently stated the law applicable to the facts on the question of the conviction of rape in the second degree.

There are other errors assigned by the defendant, but they are not of sufficient merit to require a reversal of this case. After a careful consideration of the record, we hold that the court correctly advised the jury as to the law; that the defendant was accorded a fair and impartial trial.

Finding no fundamental or prejudicial errors in the record, the judgment is affirmed.

EDWARDS, P. J., concurring.

CHAPPELL, J., absent, not participating.


text:
    JAMES M. HAMIL v. STATE.
    No. A-6987.
    Opinion Filed Dec. 21, 1929.
    Rehearing Denied Jan. 11, 1930.
    (283 Pac. 803.)
    D. K. Cunningham and Lee M. Gray, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Kingfisher county on a charge of having possession of intoxicating liquor and home brew, with the unlawful intent to barter, sell, give away, or otherwise, dispose of same, contrary to the prohibition laws of the state of Oklahoma, and was sentenced to pay a fine of $300 and cost, and be imprisoned in the county jail for 90 days; from which sentence and judgment the defendant has appealed to this court.

The testimony on behalf of the state tends to show that on the 21st day of December, 1927, Clay O. Oakes, undersheriff of Kingfisher county, went to the home of the defendant armed with a search warrant, and broke open the lock of a cellar or smokehouse in the yard, and found a considerable quantity of home brew in bottles; that the home of the defendant was locked, and he went in one of the windows, and found three-fourths, of a gallon of what the witness say was corn whisky. The defendant was not at home, and in making the search the bed had not been made since some one slept in it, and there were some dirty dishes, indicating some one had prepared a meal at the house in the last few hours. The state called a witness, who testified that the defendant left previous to the time the house was searched, saying he was going to Kansas. The testimony further shows that the defendant did not stay regularly at this place, but it was the place defendant considered his home; the defendant was going back and forth to different places from his home place.

The defendant testified in his own behalf, and denied any knowledge of the home brew being in the cellar or smokehouse, or any knowledge there was any whisky in the house; that he left home several days before the search was made, and returned home the night following the day he learned the search was made. He denied any ownership of any of the things alleged to> have been found by the officers in making the search of his premises. The defendant had lived in or near this place since 1889.

The defendant called eight witnesses, who had lived near him for several years. All testify to the defendant’s previous good character, and that his reputation in that Community as being a law-abiding citizen was good. The testimony shows that the home brew was in the cellar or smokehouse, and the whisky was in defendant’s house; the defendant testifying he had been gone, had nothing to do with placing it where it was found, did not know it was going to be put there, and had no ownership ox-control over it.

Eighteen separate errors have been assigned by the defendants; the first being, there is no evidence in the record to sustain the judgment and sentence; the seventeenth, that the court erred in overruling the motion in arrest of judgment, and for new trial; and, eighteenth, the verdict of the jury and judgment of the court is not sustained by the evidence, and is contrax*y to the law and the evidence. These three assignments relate to the competency and sufficiency of the evidence. The record discloses that, after the defendant had filed his motion for a continuance, which motion had been overruled, he was on the 15th day of February, 1928, allowed to withdraw his plea of guilty, for the purpose of filing and presenting his motion to dismiss said cause, which motion was considered by the court and overruled, and defendant excepted.

The defendant urges that the testimony was insufficient to sustain a conviction, for the reason that the affidavit upon which the search warrant was based was made by Oakes, the undersheriff, without any knowledge of the facts stated in the affidavit for a search warrant, and in the hearing upon defendant’s motion to dismiss, and in the trial of the case the defendant sought to show by the witness Oakes that he had no knowledge of the facts stated in the affidavit to procure a search warrant. An examination of the affidavit upon which the search warrant was based shows that the statements in the same are positive, and not made on information and belief. As to whether or not the affiant had any knowledge of the facts stated in the affidavit is not a question in the trial of the case, where the statements in the affidavit are positive. It may be the witness making the affidavit made a positive statement without having any knowledge of the truth of the same, yet that is not a question to be considered in the trial of this case. !

In Phillips v. State, 34 Okla. Cr. 52, 244 Pac. 451, in the second paragraph of the syllabus, the court said:

“The truth of an affidavit to procure a search warrant, positively sworn to, is not an issue in the trial of a case in which evidence procured by such search warrant is offered.” Borthick v. State, 41 Okla. Cr. 147, 271 Pac. 953.

The court did not err in overruling defendant’s; motion to suppress the testimony, and the motion for a new trial and in arrest of judgment. This court has repeatedly held that, where there is any competent testimony to sustain the verdict of the jury, though the testimony may be conflicting, it will not disturb the verdict. In this | case the testimony of the state is positive as to the quantity of whisky and home brew found, and the amount found is prima facie evidence of an intent on behalf of the defendant to violate the prohibitory laws. The deniál of the defendant of any knowledge of the whisky and home brew being in the house or smokehouse or cellar raises a conflict in the testimony, which was for the jury to harmonize; having decided the same against the defendant, this court will not disturb the verdict.

There are other errors assigned by the defendant, bnt upon an examination of the record they do not possess sufficient merit to warrant this court in reversing the judgment. The instructions of the court substantially stated the law, and the rights of the defendant were not prejudiced thereby. Finding no errors in the record prejudicial to the rights of the defendant, we hold that the testimony was sufficient to sustain the conviction.

The case is therefore affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    JOSEPH RYAN v. STATE.
    No. A-6941.
    Opinion Filed Dec. 7, 1929.
    Rehearing Denied Jan. 11, 1930.
    (283 Pac. 890.)
    Bristow & Johnson, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith ,C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called defendant, was by information charged with the crime of murder, was tried and convicted of manslaughter in the second degree, and was sentenced to be confined in the state penitentiary for a period of four years From which judgment and sentence the defendant has appealed to this court.

The testimony on behalf of the state tends to show that on the 26th day of December, 1925, the defendant, while driving on the highway near Anadarko, in Caddo county, while intoxicated, struck a buggy in which Amanda Campbell was riding with such force that it threw her from the buggy and killed her. The testimony further tends to show that at the time and immediately thereafter when defendant went to a neighbor’s house to get him to pull his car out of the ditch, he was intoxicated and, while in the yard of the party to whom he had gone to get him out of the ditch, fell. The defendant denies being drunk; he admits striking the buggy in which the deceased, Amanda Campbell, was riding, but says he was not drinking, and that he had not been drinking anything for the last few hours before he started home. He called two or three witnesses in his own behalf who testified to having seen him on the street before he left town, and one or two whose places he claims he was in, and they said that if he was drinking they could not tell it from his actions or his talk; neither of them testified positively that he was not drinking.

The testimony further tends to show that after the accident occurred a son of the defendant came to his car and told him to come and help him do something for his .mother, and he sat in his car without answering the son or doing anything to ascertain how serious the injuries of Amanda Campbell were. The defendant says the son of the deceased came to his car and cursed him and threatened to kill him, and he was afraid to get out of the car or try to do anything.

The only question in this case is: Was the defendant intoxicated and driving upon the public highway, and while in an intoxicated condition struck the buggy in which the deceased was riding and killed her?

Errors alleged to have been committed by the trial court are as follows:

“Said trial court erred in overruling the motion for a new trial.
“Said trial court erred in overruling the defendant’s demurrer to the information herein.
“Said court erred in refusing to grant the motion for a new trial.
“The verdict is not sustained by sufficient evidence.
“Error of the court in refusing to> grant a new trial on account of the bias and prejudice of the juror Boston.”

For convenience we are going to consider the assignment of errors in a group as they relate to the question of the insufficiency of the evidence to sustain the conviction. From an examination of the defendant’s brief we find that in his argument he discusses the question of the action of the court in overruling his motion for a continuance, on the ground that the testimony of certain witnesses, Avhom the defendant claimed to be residents of Caddo county, and for whom subpoenas had been issued and a return made that the witnesses could not be found in that county. A motion for continuance is addressed to the sound discretion of the trial court, and unless that discretion has been abused this court will not reverse the case upon the ground that the court overruled a motion for continuance. If the witnesses for whom the subpoena had been issued had been present and testified to the facts the defendant alleged in his motion he could prove by them, the evidence would be cumulative, and in some instances contradictory to the evidence given by the defendant himself. This court has repeatedly held that it is not error to deny a continuance where it is shown that the evidence would be merely cumulative. Litchfield v. State, 8 Okla. Cr. 164, 126 Pac. 707, 45 L.R.A. (N.S.) 153; Hunter v. State, 23 Okla. Cr. 125, 212 P. 1014.

This court has further held that it is not error to refuse a continuance where the affidavit shows no probability of the witnesses appearing at any further date. Queen v. State, 23 Okla. Cr. 146, 212 Pac. 1021.

If these witnesses were residents of Caddo county and their attendance could not be obtained at the trial for the term of court the motion for continuance was filed, there was no reason to believe their attendance could be secured at a future trial, and the court did not err in overruling defendant’s motion for continuance.

It is next contended by the defendant that the court erred in overruling his motion for a new trial on the ground that, Joe Boston was an incompetent juror and that he deceived counsel at the time of his voir dire examination, and for that reason a new trial should be granted. We have examined with considerable patience and care the testimony of Joe Boston taken by defendant in support of his motion for a new trial on the ground that he had deceived the counsel ■ in his answers to his qualifications as a juror, when being examined on his voir dire. After an examination of the record, we are thoroughly convinced there is no merit in this assignment. There is nothing in the record to show that the juror, Joe Boston, was disqualified, and the contention of the defendant in this case that his motion should be sustained on the ground of the disqualification of Joe Brown is without merit.

The next assignment urged by the defendant is that the evidence is insufficient to show that the defendant was| intoxicated. The question of the intoxication of the defendant was a question for the jury. The testimony upon behalf of the state tends to show the defendant was intoxicated at the time the deceased was killed. The testimony of the defendant tends to show that he was not intoxicated. This question is a question for the jury under all the testimony submitted to it. There is no complaint made to the instructions of the court, and we hold they correctly stated the law as applied to the facts in this case. The jury are the sole and exclusive judges of the weight of the evidence and the credibility of the witnesses, and where there is any competent testimony, though contradictory, to sustain the verdict, this court will not reverse the case on the ground of insufficient evidence.

Finding no fundamental or prejudicial errors in the record, the judgment of the lower court is affirmed.

EDWARDS, P. J., concurring.

CHAPPELL, J., absent, not participating.


text:
    EARL H. OATMAN v. STATE.
    No. A-7252.
    Opinion Filed Jan. 11, 1930.
    (287 Pac. 788.)

      John L. Gilson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Texas county on a charge of forgery in the second degree and was sentenced to serve a term of five years in the state penitentiary.

The evidence discloses that at the time charged, defendant, having a valid check in the sum of $4.70, raised the same to $40.70. An examination of the entire record discloses no substantial error and no reason for a reversal.

We are of the opinion, however, that the punishment assessed under all the circumstances shown is excessive, and that justice requires that the judgment be modified by reducing the imprisonment assessed from five years to three years, and as modified the case is affirmed.


author: EDWARDS, P. J.-

text:
    GEORGE E. MURRAY v. STATE.
    No. A-6815.
    Opinion Filed Jan. 11, 1930.
    (287 Pac. 834.)

      Melton & Mlelton, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.-

The plaintiff in error was convicted in the district court of Grady county on a charge of robbery with firearms, and was sentenced to serve a term of -five years in the state penitentiary.

The judgment in this case was rendered on May 3, 1927, and the appeal was lodged in this court November 4, 1927, more than six months from the date the judgment was rendered. Section 2808, Comp. Stat. 1921, in part reads:

a* * * pn felony cases the appeal must be taken within six months after the judgment is rendered.”

The statute fixes the time for appeal, and this court is without power to extend the terms of the statute, and when, as in this case, the appeal is filed after the expiration of the six-month period, this court does not acquire jurisdiction, and the attempted appeal must be dismissed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    DAVE HENRY et al. v. STATE.
    No. A-7007.
    Opinion Filed Jan. 17, 1930.
    (287 Pac. 789.)
    Cochran & Wilkinson, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiffs in error, hereinafter called defendants, were convicted in the district court of McCurtain county upon a charge of having possession of intoxicating liquor and were each sentenced to pay a fine of $250 and to serve a term of six months in the county jail.

The case was tried in January, 1928, and the appeal lodged in this court May 2, 1928. Extensions of time to file briefs were made, but last extension has long since expired, and no briefs have been filed, nor was there any appearance for oral argument at the time the case was submitted.

Where an appeal is prosecuted to this court upon conviction for a felony, and no briefs in support of the appeal filed, and no appearance for oral argument made, this court will not search the record to discover some error upon which to predicate a reversal, but will examine the record for jurisdictional or fundamental errors, and if none appear, and the evidence reasonably supports the verdict, the judgment will be affirmed. We have done this, and find that the evidence supports the verdict and no jurisdictional or fundamental error is apparent.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    E. A. FOURT v. STATE.
    No. A-7656.
    Opinion Filed Jan. 17, 1930.
    (287 Pac. 787.)
    Walter Mathews, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State. '
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Payne county on a charge of having possession of intoxicating liquor and was sentenced to pay a fine of $150 and to serve one hundred and twenty days in the county jail.

The judgment was rendered on August 24,1929. The appeal was lodged in this court November 20,1929, eighty-nine days after the rendition of the judgment. By section 2808, Comp. Stat. 1921, an appeal from a conviction for a misdemeanor must be taken in sixty days from the rendition of the judgment. By that section the court is' authorized to extend the time for a further period not to exceed sixty days. On September 23, 1929, the court extended the time for filing an appeal an additional twenty days, which with the time allowed by law allowed eighty days within which to file the appeal. The appeal not having been filed within the time fixed by law, nor the extension of time made by the court, this court does not acquire jurisdiction.

The attempted appeal is dismissed.