text:
    LOREN JOHNSON et al. v. STATE.
    No. A-2999.
    Opinion Filed December 7, 1918.
    (176 Pac. 256.)
    1. APPEAL AND ERROR — Conduct of Trial Court — Necessity of Objection and Exception. Where it is contended that the trial court prejudiced the substantial rights of the defendants by conducting in part the examination of one of the state’s witnesses, proper objection should be made and exception taken to the court’s action in the lower court. The trial court should be afforded an opportunity to correct any mistakes made during the progress of the trial, and, where such an opportunity is not given the trial court, the alleged misconduct must amount to a deprivation of some constitutional or statutory right guaranteed to the defendant before judgment of conviction will he set aside upon such ground, where the alleged error is first_urged in this court.
    2. TRIAL — Admission o/ Evidence — Motion to Strike — Prejudice. Where evidence is competent and material to the issues involved in the trial, it is not error to overrule a motion to strike the same from the consideration of the jury on the ground that such evidence is prejudicial and damaging to the defendant.
    3. APPEAL AND ERROR — Exclusion of Evidence — Presentation of Error. Where the defendants ask a reversal on account of an alleged error in refusing to admit evidence offered, the record must show what the witness would have testified had he been permitted to answer the question, so that this court can determine whether or not the defendant was injured by the exclusion of evidence..
    4. APPEAL AND ERROR — Assignments of Error — Record. Assignments of error must be clearly supported by the record; otherwise this court may not consider the same.

      Appeal from Superior Court, Pottawatomie County; Leander G. Pittman, Judge.

    Loren Johnson and Ed Wilder were jointly tried and convicted in the superior court of Pottawatomie county of the crime of conjoint robbery, and punishment fixed at imprisonment in the state penitentiary for a term of ten years each, and each appeals.
    Judgments affirmed.
    Loren Johnson and Ed Wilder were jointly charged and convicted of the crime of conjoint robbery committed in Pottawatomie county on or about the 29th day of January, 1916.
    The evidence on the part of the state is, in substance, as follows:
    The defendants appeared about 11:30 on Saturday morning, the 29th of January, 1916, at the McComb State Bank, a banking institution located at the town of Mc-Comb, in Pottawatomie county, Okla., of which bank one John Tripp was the cashier and was in charge of the institution at the time the robbery occurred.
    According to the testimony of Tripp, Wilder first appeared at the cashier’s window, and asked if a fellow by the name of Fox had been in the bank that day, and upon receiving a negative reply, started to turn around, and, when about half way turned, Wilder pulled a revolver out of his pocket, pointed it at Tripp, and ordered him to throw up his hands. Tripp dropped beneath the counter of the bank for the purpose of procuring a pistol, which was hanging on a nail under the counter, and as soon as Tripp did this Johnson ran around and opened a small gate in the banking fixtures, which permitted him to see inside of the business counters, and also pointed a pistol at Tripp, when he (Tripp) was in a stooping position, and ordered him to throw up his hands, with which request Tripp complied.
    At this. time Johnson was wearing an improvised mask made of a blue colored handkerchief, which mask persisted in dropping from his face, and Johnson would repeatedly place it back again; but the mask finally dropped down, and Johnson, seeing that it was useless to try to keep his face covered with it, just let it hang over his shoulder, so that his entire face was exposed to view.
    Tripp was compelled, through fear and by means of the force employed, to go into the vault of the bank, and bring out the bank’s money, to which Wilder and Johnson helped themselves to the extent of $1,767, mostly in gold and small bills, after which they compelled Tripp to open the back door of the bank, out of which they fled and escaped. Tripp, however, followed them to the door, after having procured his pistol, and fired several shots at them, none of which took effect, although after one shot Johnson was seen to fall.
    Tripp’s son, who was also in the bank, procured a small revolver out of the vault, anfi also followed the robbers quite a distance, and fired several shots at them. The robbers, however, succeeded in eluding their pursuers, and were traveling in a westerly and northerly direction when last seen.
    Posses were immediately formed and started in pursuit. Andy Johnson, a brother of Loren Johnson, was arrested, but was afterwards released, when Tripp stated positively that he was not one of the robbers. On Monday evening following the robbery on Saturday night, the defendant Loren Johnson was arrested at the home of his brother, Dave Johnson. Tripp was a member of the arresting party, and at that place and time positively identified Loren Johnson as one of the robbers. Wilder was arrested the next day or two after the arrest of Loren Johnson, and was brought to the jail at Tecumseh, where he was afterwards positively identified by Tripp. Between §500 and $700 in money was found in the possession of each of these defendants at the time of their arrest.
    Johnson’s defense was an alibi. Wilder introduced no evidence whatever in his défense.

      George A. Outeelt and W. L. Chapman, for plaintiffs in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

(after stating the facts as above). One of the assignments of error relied upon for reversal of this judgment is stated as follows:

“That the court committed error prejudicial to the rights of the defendants in its examinations of state’s witness John Tripp, after the county attorney had completed his examination of said witness, and which examination by the court over the objection of defendants had a tendency to, and did, prejudice the jury against these defendants, and it was error on the part of the court to' overrule • defendant’s motion • to strike the questions and answers from the consideration of the jury, to all of which defendants excepted at the time.”

In connection with this assignment of error, it is strenuously argued in this court that the action which most prejudiced the defendants in the trial court was the examination by the trial judge of the witness John Tripp.

After a careful examination of the record, -we"-find that counsel for the defendants neither objected notf took exception to the court’s conduct in the examination of the witness Tripp as being prejudicial. The conduct of the court in this examination was not mentioned' • in:'1 the motion for- a new trial, and the first time it is urged-'as grounds for reversal of this judgment is in this court. It is too late to first urge such an objection here. In order to save such a question upon appeal, counsel should promptly object to the court’s action in asking questions which they deem prejudicial to the substantial rights of their client. If the court overruled such objection, then exception should be taken to the court’s action at the time, and, further, such a ground should be submitted and relied upon for a new trial in the court below.

By such a course of conduct, counsel afford the trial court an opportunity to correct any mistakes he may have made during the progress of the trial; but it is not fair to the trial court to totally ignore the court’s conduct in the lower court, and first urge misconduct of the trial court as grounds" for reversal in this court. Where it is first relied upon as grounds for reversal in this court, such conduct must amount to a deprivation of some constitutional or statutory right guaranteed to the defendant before a judgment of conviction will be set aside upon this ground alone.

We find that the only action taken by counsel for the defendants in the lower court was a motion to strike from the consideration of the jury all the answers given by the witness Tripp to. the court’s questions, on the ground that they were prejudicial and damaging to the defendants. The trial court sustained an objection to this motion, to which couhsel for the defendants excepted.

An examination of the record shows that the questions asked and answers given by the witness Tripp were competent and material to the issues involved. , The answers were damaging to the defendants, in that evidence was elicited tending to prove the guilt of the defendants, but the mere fact that the evidence was damaging to the defendants is not ground for striking the same, if it is otherwise competent and material. We see no error in the court’s action in overruling the motion to strike.

The witness John Tripp was a very important witness to the state, being the cashier of the bank, and the person in charge of the money of the bank at the time of the robbery, and the conviction of these defendants depends largely upon his ability to positively identify them, and part of the testimony given by the witness in response to the court’s questions was a positive identification of each of these defendants. This is the part of the witness’ testimony most complained of, and it is contended that it tended to show to the jury that the court was greatly interested in the conviction of these defendants, because the trial court demonstrated that fact in the course of the examination given the witness John Tripp.

There might be some force to this argument had not the witness, previous to the trial court’s examination, positively identified these defendants as the guilty parties. We find, however, that upon direct examination by the county attorney, and upon cross-examination by each of two counsel for the defendants, prior to the examination made by. the court, the witness John Tripp was equally positive in his- identification of these defendants.

The trial court was unusually fair to counsel representing the defendants in this case, having permitted the witness John Tripp to be subjected to most grueling cross-examinations by two able attorneys representing different defendants, and these cross-examinations were directed largely to the witness Tripp’s means and opportunity for identifying these defendants. We are impressed with the fact that the trial court was unusually fair and impartial to both defendants in permitting two counsel to cross-examine this witness, and we see nothing in the trial court’s action, in connection with the examination of the witness John Tripp, which would justify us in reversing this judgment.

It is also contended “that the court committed error in refusing to admit competent testimony offered by the defendants, and to which action of the court exception was taken at the time.” We quote from the brief of the counsel for defendants the argument advanced in connection with this assignment of error:

“It had been shown by the testimony of the witness Jno. Tripp that there was found quite a large sum of money in the possession of the defendant Johnson at the time of his arrest. The testimony was offered as an incident tending to establish guilt of the defendants.
“The witness was asked if he identified any of the money found as money taken from the bank by the robbers and if he had not brought suit to recover the same. This question was objected to by the county attorney, and the court sustained the objection, and the defendants saved an exception to the ruling of the court.
“That the proof of the possession of this money was introduced by the state, and intended to be a strong circumstance tending to show the guilt, is evident, and the court let this testimony go to the jury.
“The identification of the money taken from Johnson as money taken from the bank, or that it was not money from the bank, was not only competent, but very material.
“This witness was unfriendly, and one is forced to the conclusion that the answer of the witness would have been favorable to the defendant.
“Suppose that the answer of the defendants had been that the money found in the possession of the defendant Johnson was not the money taken from the bank by the robbers, it would have had great weight with the jury in determining the question of guilt.”

Where it is contended that the court errfed in refusing to admit competent evidence offered by the defendants, there must be some showing as to what the witness would have testified to had he been permitted to answer the question. Counsel argue, “Suppose the answer of the witness had been favorable to defendant.” This court cannot deal in suppositions in connection with the alleged errors of this kind. The burden is upon the appellant to show that he was prejudiced by the court’s action; the rule in this jurisdiction being that injury is not presumed because of error, but that the burden is upon the appellant to show not only error,' but injury resulting therefrom.

The following cases are in point: Fain v. State, 14 Okla. Cr. 556, 174 Pac. 296; Warren v. State, 6 Okla. Cr. 1, 115 Pac. 812, 34 L. R. A. (N. S.) 1121; Stouse et al v. State, 6 Okla. Cr. 415, 119 Pac. 271; White v. State, 4 Okla. Cr. 143, 111 Pac. 1010.

In connection with this assignment of error, also the following excerpt is copied from the record:

“A. Currency and gold. I don’t know whether they got any silver or not. I could not say; I don’t think they got any.
“Q. Can you tell this jury whether you identified any of this money? You brought a suit to recover this money.
“Mr. Friend: Object to the suit—
“The Court: Sustained.

Redirect Examination.

“Q. What denomination were these currency bills? A. Well, I could not say to that; there 'was nothing larger than a twenty, and probably most of it fives and tens.
“Q. That is all.

Recross-Examination by Mr. Outcelt.

“Q. I want to ask you this question: Isn’t it a fact the bank registers certain bills they have; how small is the smallest bill a bank keeps a registration of it? A. We don’t keep any. This is a state bank.
“Q. Did not keep any records of that- kind? A. No, sir; no, sir. It is just registered as currency.
“Mr. Outcelt: That is all.”

It will be noted from the foregoing excerpt that the objection made by the county attorney to the question propounded did not go to that part of the question which called the witness’ attention to whether or not he could identify any of the money found as part of that stolen, but merely the objection was directed to whether or not the witness had brought a suit to recover the money. The court very properly sustained an objection to that part of the question, and no exception was taken thereto. Certainly counsel did not consider the court’s action either erroneous or prejudicial at the time the objection to the question was sustained, or else exception'would have been taken, or at least an effort made to reform the question so as to eliminate the part which the court clearly indicated to be objectionable.

Other assignments of error set up in the petition in error as ground for reversal have been abandoned, and are not now urged by counsel representing appellants as ground for reversal of these judgments.

The entire transcript of the evidence, together with the instructions given by the trial court, has been carefully read and considered, and the conclusion is reached that the defendants were clearly proven guilty of the crime charged in the information, and were afforded a fair and impartial trial, and no error occurred during the progress of the trial sufficiently prejudicial to authorize this court to grant a new trial.

The judgments of conviction are affirmed as to each defendant.

DOYLE, P. J„ and ARMSTRONG, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    EDNA KIGGINS v. STATE.
    No. A-3051.
    Opinion Filed December 14, 1918.
    (176 Pac. 413.)
    CRIMINAL LAW — Instruction—Reasona le Doubt. An instruction in the following language: “The court instructs the jury that if, after •hearing ail the evidence introduced, you entertain a reasonable doubt as to the guilt ‘or innocence’ of the defendants, you must give defendants the benefit of the doubt and acquit them” — is error.

      Appeal from County Court, Payne County; Wilberforce Jones, Judge.

    Edna Kiggins was convicted of petit larceny, and she appeals.
    Reversed.

      Freeman E. Miller, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Edna Kiggins, and Rebecca Couch were jointly informed against for the offense of petit larceny. They were jointly tried. The jury rendered their verdict finding Rebecca Couch not guilty and finding Edna Kiggins guilty as charged and assessing her punishment at a fine of $50. From the judgment rendered on the verdict, she appealed by filing in this court on June 15, 1917, a petition in error with case-made. The Attorney General has filed a confession of error in part as follows:

“Two errors occurred in the trial of the cause that we think, under the former holdings of this court, should and will reverse the same. The first one is the denial of the court to give to the jury instructions Nos. 5 and 6 requested by defendant. These instructions go to the fact that there might have been an accident or a misunderstanding that caused the hotel’s property to be packed in that of the moving defendant. The other one is because the court told the jury, in instruction No. 6, that if they had a reasonable doubt as to the guilt ‘or innocence’ of the defendant they must acquit. This instruction is contrary to the law as laid down by this court in a number of cases, the last being Findley v. State, 13 Okla. Cr. 130 [162 Pac. 680], The burden must not be put upon the defendant. Recurring to the first exception herein, which we allow, we say that to have gotten said property mixed up by accident was the only theory within reach of the defendant, and she should have had the benefit of it. See Payton v. State, 4 Okla. Cr. 316 [111 Pac. 666]; McIntosh v. State, 8 Okla. Cr. 474 [128 Pac. 735],” etc.

From a careful examination of the record, we are satisfied that the confession of error is well founded.

The judgment is therefore reversed.


author: ARMSTRONG, J.

text:
    NATHAN BYARS v. STATE.
    No. A-2314.
    Opinion Filed December 7, 1918.
    (176 Pac. 253.)
    WITNESSES — Credibility of Defendant — Cross-Examination — Other Offenses. For the purpose of affecting the credibility of a defendant as a witness, it is prejudicial error for the court to require the defendant to answer, on cross-examination, as to his having been charged with other offenses.

      Appeal from District Court, Greer County; G. A. Brown, Judge.

    Nathan Byars was convicted of selling whisky to a minor, his motion for new trial was overruled, and he appeals.
    Reversed and remanded.

      Carpenter & Mills, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

Plaintiff in error, Nathan Byars, hereinafter styled defendant, was indicted by the grand jury of Greer county for “unlawfully, willfully, and feloni-ously selling, bartering, and giving away whisky to a minor,” convicted of selling to a minor, and sentenced “to be confined in the state reformatory at Granite, Okla., at hard labor for a period of- one year from the date which he shall be delivered to the warden of said reformatory, and to pay a fine of fifty dollars and costs of this action.” The defendant’s motion for new trial having been overruled, he prosecutes this appeal to this court.

We deem it unnecessary to recite any of the evidence in this case, other than the following part of the cross-examination of the defendant by the county attorney:

“Q. You have been charged with bootlegging. A. No, sir; I have never been convicted.
“Q. But quite a number of charges have been preferred against you, at one time, weren’t they ? A. A number.”

To each of said questions the defendant objected, and the court overruled said objection, saying, “The fact of the charges is admissible; if he has been convicted that is admissible.” To the overruling of said objections to the questions propounded to the defendant the defendant duly excepted.

The object of said question was, of course, to affect the credibility of the defendant as a witness, which might legally be done by his cross-examination, showing that he had been convicted of any crime; but it was prejudicial error to require the defendant to answer as to his having been charged with bootlegging or other crimes, as is held by this court in an unbroken line of decisions.

In Slater v. United States, 1 Okla. Cr. 275, 98 Pac. 110, it is held:

“For the purpose of affecting the credibility of a witness, he may be asked, on cross-examination, if he has been convicted of a felony or of any crime which involves want of moral character, but it is improper to ask such witness if he has been indicted, arrested, or imprisoned, before conviction, for any offense whatever.”

In Nelson v. State, 3 Okla. Cr. 468, 106 Pac. 647, it is held:

“For the purpose of affecting the credibility of a witness he may be asked, on cross-examination, if he has been convicted of a felony, or of any crime which involves moral turpitude; but it is prejudicial error to ask such witness if he has been indicted, arrested, or imprisoned for a misdemeanor, or if he has been charged -or arrested or imprisoned, before conviction, for any offense whatever.”

Slater v. United States and Nelson v. State, supra, have been followed and approved in the following cases: Crawford v. Ferguson, 5 Okla. Cr. 377, 115 Pac. 278, 45 L. R. A. (N. S.) 519; Musgrave v. State, 3 Okla. Cr. 421, 106 Pac. 544; Lowry White v. State, 4 Okla. Cr. 143, 111 Pac. 1010; Philip Hendrix v. State, 4 Okla. Cr. 611, 113 Pac. 244; Charles Keys v. United States, 2 Okla. Cr. 647, 103 Pac. 874; Dan Price v. United States, 1 Okla. Cr. 291, 97 Pac. 1056; Porter v. State, 8 Okla. Cr. 64, 126 Pac. 699; Smith v. State, 14 Okla. Cr. 348, 171 Pac. 341.

In the Smith Case, supra, it is said:

“Our statute permits the proof of a prior conviction of a defendant in a criminal case for the purpose of affecting his credibility. Section 5046, Rev. Laws. This proof may be made either by the record or by the cross-examination of the defendant, and cross-examination as to other separate and distinct transactions and offenses is not permissible, unless such testimony tends to prove the commission of the offense charged, and should in general be limited to matters pertinent to the issue, or such as may be proved by other witnesses.”

It follows that for the errors pointed out this case must be reversed and remanded.

DOYLE, P. J., concurs.


author: DOYLE, P. J.

text:
    WILL ERVIN v. STATE.
    No. A-3350.
    Opinion Filed December 7, 1918.
    (176 Pac. 255.)
    APPEAL AND ERROR — Abatement of Appeal — Death. In a criminal action the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death.

      Appeal from District Court, Pittsburg County; Mark L. Bozarth, Judge.

    Will Ervin was convicted of manslaughter in the first degree, and he appeals.
    Ordered that proceedings abate.

      Harris & Lackey and W. J. Hulsey, for plaintiff in error.

      R. McMillan'Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Will Ervin, was indicted for the murder of one John Davis, and convicted of manslaughter in the first degree, and sentenced to serve a term of 15 years in the penitentiary. An appeal was perfected by filing in this court May 8, 1918, a petition in error with case-made.

Motion to abate by reason of the death of the plaintiff in error is made, and showing that one T. O. Davis has been informed against in the district court of Pittsburg county for. the murder of Will Ervin, plaintiff in error. In a criminal action, the purpose of the proceedings being to punish the defendant in person, the action must necessarily abate upon his death.

It is therefore considered and adjudged that the proceedings in the above-entitled cause, and especially under the judgment therein rendered, have abated, and that the district court of Pittsburg county enter its appropriate order to that effect.

ARMSTRONG and MATSON, JJ„ concur.


text:
    JOHN D. MURPHY v. STATE.
    No. A-3123.
    Opinion Filed December 14, 1918.
    (176 Pac. 417.)
    WITNESSES — Credibility—Cross-Examination. It. is prejudicial error for the court, on cross-examination of a witness, to sustain objections to any question as to the witness’ social connections and manner of living, or any question which tends to explain, contradict, or discredit any testimony given by the witness in chief, or to show that the witness has been convicted of crime, for the purpose of affecting the credibility of the witness.

      Appeal from- District Court, Washita County; Thomas A. Edwards, Judge.

    John D. Murphy was convicted of rape in the second degree, his motion for a new trial was overruled, and he appeals.
    Reversed and remanded.

      Swan C. Burnette, for plaintiff in error.

      S. P. Freeling, Atty, Gen., and R. McMillan, Asst Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error* John D. Murphy, hereinafter styled defendant, was informed against in the district court of Washita county for the offense of “rape in the second degree,” convicted, and sentenced to the penitentiary for three years and six months. Defendant’s motion for a new trial being overruled, he appeals to this court.

The undenied evidence is that on the 21st day of February, 1915, defendant went to the home of Eosa Fromcke, accompanied by Mrs. -Sylvia Viniti, and asked Eosa Fromcke to go to a dance with them, which was to be given at Ben Stout’s; that said named parties, with Jake Gorging as driver, got into a car, and proceeded first to “the Dam,” and thence to Ben Stout’s place, where they remained about one hour, and then, about midnight, proceeded to the hotel of the defendant in Bessie,. when they all got out of the car and went into the said hotel; that the said Eosa Fromcke was a well-developed woman at the time of the trial, which was held on the 23d day of February, 1917; that in going to and returning from the dance said Sylvia Viniti and the defendant rode in the same seat in the car, and Eosa Fromcke and Jake Gorging rode in the same seat in the car, and that the said Eosa Fromcke and Jake Gorging, at the said dance, continually danced together, and Sylvia Viniti and the defendant, at' said dance, danced together; and that one of said women and one of said men retired to a private room, and that the other of said women and the other of said men retired to a private room, where sexual 'intercourse was indulged in, and that each of said women was a prostitute. The evidence is in conflict as to whether Eosa Fromcke retired and had sexual intercourse with the defendant, or retired and had sexual intercourse with Jake Gorging, at the time alleged in the information.

Upon the cross-examination of Eosa Fromcke, the prosecuting witness, the defendant propounded to her the following questions, to which said questions the county attorney interposed objections, which were sustained by the court, and exceptions saved:

(1) “Now, as a matter of fact, Rosa, you have been selling your body to whoever would pay the price?”
(2) “Now, Miss Rosa, ip the case of State of Oklahoma v. R. E. Elam, in which you appeared as prosecuting witness, didn’t you say, in answer to the question of Mr. Smith, that Mr. Elam had had intercourse with you from the 1st day of February, 1915, until July, 1915, and that he paid you $2 for every time he had intercourse?”

Upon sustaining objections to said questions, the court said:

“I want to admonish counsel that the court is ruling that the previous chaste character of the prosecuting witness is immaterial, if the jury find that her age is under 16, and you will conduct your examination accordingly.”

Sylvia Viniti testified, as witness for defendant, that she, and not Rosa Fromcke, on the night of the dance at Mr. Stout’s, and after the dance, and at the hotel of defendant in Bessie, slept with the defendant; that on that night she, the witness, did not occupy a room with Jake Gorging.

There are several errors assigned, but we deem it unnecessary to review any other errors than the action of the court in sustaining the objections of the county attorney to the questions hereinbefore set out and propounded by the defendant, upon cross-examination of the prosecuting witness, Rosa Fromcke, and the action of the court .in overruling the objection of the defendant to the questions propounded to the defendant’s witness, Sylvia Viniti, by the county attorney.

The vital question involved in this case is: Did the defendant have sexual intercourse with the prosecuting witness, Rosa Fromcke, as charged in the information in this case? And the evidence of the defendant being in direct conflict, as to such sexual intercourse, with the evidence of said prosecuting witness, it was important to the defendant, if he could, to show a want of credibility on the part of said prosecuting witness, and this he could legally do by propounding to the prosecuting witness these questions, on cross-examination, to which the court sustained objections of the county attorney, and in so doing committed prejudicial errors.

In Hopkins v. State, 9 Okla. Cr. 104, 130 Pac. 1101, Amn. Cas. 1915B, 736, it is held:

“On cross-examination of a witness, as a general rule, the party cross-examining should be confined to the matters concerning which the witness has been examined in chief; but this rule should be liberally construed, so as to permit any question to be asked on cross-examination which reasonably tends to explain, contradict, or discredit any testimony given by the witness in chief, or to test his accuracy, memory, veracity, character, or credibility. This must necessarily include impeaching questions, although they may relate to matters independent of the questions testified to in chief.”

In Musgraves v. State, 3 Okla. Cr. 421, 106 Pac. 544, it is held:

“It is permissible on cross-examination to inquire into the occupation, social connections, and manner of living of a witness. These matters, being voluntary on his part, may be shown for the purpose of affecting his credibility.”

The ruling in Musgraves v. State, supra, and in Hopkins v. State, supra, finds support in many decisions of this court.

Upon authorities hereinbefore cited, the court did not err in overruling the objections of the defendant to the questions propounded, on cross-examination, to the defendant’s witness Sylvia Yiniti. The same rule of law applying to all the witnesses, it is difficult to determine why the court sustained objections of the county attorney, and overruled objections of defendant, to the same class of examination, involving in each the same question of law.

For errors’ pointed out, this case must be reversed and remanded.

DOYLE, P. J„ and MATSON, J., concur.


author: MATSON, J.

text:
    STATE v. Wm. S. McCRAY.
    No. A-2744.
    Opinion Filed December 14, 1918.
    (176 Pac. 418.)
    1. INDICTMENT AND INFORMATION — Sufficiency—Destruction of Written Instrument — “Maliciously.” For information held sufficient to state an offense under section 2784, Rev. Laws 1910. see body of opinion.
    2. FORGERV — Definition. “Forgery” is an attempt to defraud a person of his property, whether real or personal, by making of a false or fraudulent written instrument of title, or a false evi dence of indebtedness and the like.
    8. MALICIOUS MISCHIEF — Elements of Oifense — “Destroyed.” The word “destroyed,” as used to describe the offense denounced by Rev. Laws 1910. sec. 2784. making a person who destroys a written instrument owned by another, the false making of which would be forgery, punishable as for forgery', means totally obliterated and done away with.

      Appeal from District Court, Creek County; Ernest B. Hughes, Judge.

    William S. McCray was charged by information with the crime of unlawfully and maliciously destroying a written instrument, the property of another. Demurrer to amended information sustained, and the state appeals.
    Reversed.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State..

      O’Meara, Bush & Moss, Biddison & Campbell, W- P. Root, and James H. Sykes, for defendant in error.
   MATSON, J.

On the 30th day of September, 1915, there was filed in the district court of Creek county, state of Oklahoma, an amended information against the defendant, W. S. McCray, which said information is as follows:

“Amended Information.
“The State of Oklahoma v. William S. McCray, Defendant.
“In the District Court of Creek County.
“In the name and by the authority of the state of Oklahoma, now comes Roy T. Wildman, the duly qualified and acting county attorney, in and for Creek county, state of Oklahoma, and upon his oath of office gives the district court of Creek county, state of Oklahoma, to know and be informed that William S. McCray did, in Creek county, state of Oklahoma, on or about the 31st day of March, in the year of our Lord one thousand nine hundred and fourteen and anterior to the presentment hereof, commit the crime of unlawfully and maliciously destroying a written instrument then and there the property of another, in the manner and form as follows, to wit:
“That the said defendant, William S. McCray, on the date and in the county and state aforesaid, did unlawfully and maliciously destroy a certain written instrument, to wit, a deed in writing, conveying to Frank P. Smith an undivided one-third interest in and to the following described lands, situated in Creek county, Oklahoma, to wit:
“The southeast quarter of the northeast1 quarter, and the northeast quarter of the southeast quarter in section thirty-five (35), and the southwest quarter of the northwest quarter and the northwest quarter of the southwest quarter of section thirty-six (36), all in township nineteen (19) north, range seven (7) east, containing 160 acres, more or less.
“The said deed theretofore, to wit, on the 18th day of March, 1914, was executed, acknowledged, and delivered by the said William S. McCray to Frank P. Smith, for a valuable consideration theretofore paid to said William S. McCray by the said Frank P. Smith; the said William S. McCray being the party grantor named in said deed, and the said Frank P. Smith being the party grantee, named therein, and the said deed being then and there on the 31st day of March, 1914, unrecorded, and the said deed then and there being- the property of the said Frank P. Smith, and the evidence and muniment of his title to said interest in said premises, and said deed then and there being such an instrument that the false making of which' would be forgery — contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state. Roy T. Wildman, County Attorney.
“State of Oklahoma, Creek County.
“I, Frank P. Smith, being duly sworn, on oath state that I have read the above and foregoing information, and know the contents thereof, and that the allegations and statements therein made and contained are true.
“Frank P. Smith.
‘ ‘Subscribed and sworn to before me this 30th day of September, 1915.
“[Seal.] Jessie M. Houston, Notary Public.
“My commission expires Jan. 25, 1919.”
Indorsements: “Names of witnesses: Frank P. Smith, R. B. Thompson, Jessie M. Houston.”

Thereafter in said court there was filed in said cause a demurrer to the said amended information, by the said defendant, which said demurrer, omitting the title of the cause and caption, is as follows:

“Demurrer to Amended Information.
“Comes now the defendant above mentioned and demurs to the information herein for the following reason, to wit:
“I. The said information does not substantially conform to the requirements of the Code of Criminal Procedure of the state of Oklahoma in the following particulars, to wit:
“(A) The acts charged as the offense are not clearly and definitely' set forth in clear and precise language in such a manner to enable a person of common understanding to know what is meant.
“(B) The acts charged as the offense are not stated with such a degree of certainty as to enable the court to pronounce judgment upon a conviction according to the right of the case.
“(C) The said information is not definite and certain as to the offense charged, nor as to the particular circumstances of the offense charged as far as is necessary to charge a complete offense.
“II. The facts stated in the information do not c®n-stitute a public offense.
“Biddison & Campbell and
“W. P. Root,
“Attorneys for Defendant.”

On the 21st day of February, 1916, the said cause coming on to be heard on the demurrer of the defendant to the said information, the court sustained the demurrer and entered the following order:

“This cause comes on to be heard on this 21st day of February, 1916, on demurrer to the information; defendant present in person and by his attorney, and the state present by its attorney, Roy T. Wildman. The court, after hearing all the arguments and being fully advised in the premises, sustains said demurrer, to which the state of Oklahoma excepts, and exceptions allowed. Whereupon the state of Oklahoma prays an appeal to the Criminal Court of Appeals of the state of Oklahoma, and appeal granted; 30 days given in which to prepare a case-made, ten days to suggest amendments, and five days'to settle.”

This is an appeal by the state from a judgment of the district court of Creek county sustaining demurrer to the foregoing amended information.

A motion to dismiss the appeal was interposed by the defendant in error, on the ground that this court had no jurisdiction to entertain the appeal, for the reason that the state is not authorized to appeal from any judgment of the trial court sustaining a demurrer to an information. The motion to dismiss the appeal was overruled, without any formal opinion having been written. That this court will entertain appeals by the state from the action of the lower court in sustaining demurrers to indictments, or in-formations, is expressly decided in the case of State of Oklahoma v. Earl Vaughn, 15 Okla Cr. 187, 175 Pac. 731.

The statute upon which this prosecution is based is section 2784, Rev. Laws 1910, which provides:

“Any person who maliciously mutilates, tears, defaces, obliterates, or destroys any -written instrument being the property of another, the false making of which would be forgery, is punishable in the same manner as the forgery of such instrument is made punishable.”

The defendant in error contends that the foregoing information is deficient-in law to state an offense under .said section for substantially the following reasons: First, because it is not alleged that the deed was destroyed with intent to defraud the owner or any other person; second, the information fails to allege or set out the manner in which the instrument was destroyed; third, the information alleges that the deed destroyed by the defendant was a deed executed by the defendant himself; and, as the defendant could not falsely make his own deed, such a deed is not the subject of forgery, and therefore the destruction of such a deed is not within the terms of the statute.

In our opinion, neither of these contentions is meritorious. The information alleges the offense substantially in the language of the statute. Among other things, if is alleged that the deed was maliciously destroyed by the defendant. The use of the word “maliciously” implies an intent to injure. It is not necessary, in order to constitute this offense, that the intention be the same as in the forgery of the deed, that is, “to defraud,” but only an intention to injure any person in his property rights.

Section 2822, Kev. Laws 1910, defines the term “maliciously,” when employed in the chapter relating to crimes against the property of another, to “import a wish to vex, annoy or injure another person, established either by proof or presumption of law.” The allegation that the deed was maliciously destroyed is sufficient to inform the accused that the act of destruction was done with intent to injure the owner of the deed in his property rights. Its use in this connection imports the wrongful and unlawful intent required in charging this offense.

This crime is to be distinguished from, forgery, however, in that forgery is an attempt to defraud a person of his property, whether r'eal or personal, by the making of a false and fraudulent written instrument of title, or a false evidence of indebtedness and the like. Here the Legislature was making provision against the malicious destruction of the written evidence of property rights, not the making of false evidence of such rights.

The contention urged that the prosecution will not lie because the instrument alleged to have been destroyed by the defendant was one which he made and delivered himself, and therefore was one which he could not have himself forged, is clearly without substantial merit. In other words, the contention is advanced that, before the defendant could be guilty of the offense set forth in section 2784, supra, it must also appear from the allegations of the information, or indictment, that the instrument “mutilated, torn, defaced, or destroyed” by him was such an instrument as he himself could have forged.

The instrument which the defendant destroyed was a deed, and such an instrument, if falsely m^de, is forged, and it is only necessary to determine whether or not the instrument itself was one capable of being forged, and not whether the defendant was capable of forging the particular instrument which it is alleged he destroyed.

. Such is not the language of the statute. The language used is “the false making of which would be forgery,” showing conclusively that the Legislature intended to make the malicious destruction of an instrument, which could be the subject of forgery if falsely made by any person; a-felony, and punishable in the same manner and to the same extent as if it had been falsely made. The crime does not consist of the malicious destruction of evidence of forgery, but in the malicious destruction of an instrument such as is capable under any circumstances of being forged.

Nio one would contend that a person could falsely make a deed to real property the ownership of which was in himself, yet it is equally clear that, after having made a deed and delivered the same to another for a valuable consideration, the subsequent malicious destruction of such a deed is fully as injurious to the purchaser in his property rights, if destroyed by the original maker, or by some other person.

The allegations that the deed was the property of another, was unrecorded, had - been delivered for a valuable consideration, and was thereafter maliciously destroyed, are sufficient; it being unnecessary to allege the manner in which the instrument was destroyed. Such matters constitute evidence of the crime, but are not required in charging the offense. The word “destroyed” has a well-defined meaning, and is used in this statute in the sense that the instrument was totally obliterated and done away with, as distinguished from the terms “mutilated,” “torn,” and “defaced.”

While we do not recommend this amended information as a model pleading defining the crime' set forth by section 2784, supra, yet we believe it to be sufficient under the requirements of section 5746, Rev. Laws 1910, which among other things provides that an indictment or information is sufficient if “the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended,” and “with such a degree of certainty as to enable the court to pronounce judgment upon a conviction according to the right of the case.” For the reasons stated, the judgment of the district court, sustaining the demurrer to the information, is reversed. ■

It is not necessary in this proceeding to .pass upon the question of whether or not the defendant can be again prosecuted for this same offense. The state,,..in taking this appeal, is entitled to have decided the proposition of law as to the sufficiency of the information.

The trial court made no order authorizing or directing a new information to be filed charging the offense. For a discussion of the proposition as to the finality of the trial court’s judgment sustaining the demurrer to the information, and the right of the state to further prosecute, in the absence of an express authorization or direction to that effect by the trial court, see opinion in State v. Vaughn, supra.

DOYLE, P. J„ and ARMSTRONG, J., concur.


text:
    FENDER POLK v. STATE.
    No. A-2676.
    Opinion Filed December 14, 1918.
    (176 Pac. 538.)
    1. INDICTMENT AND INFORMATION — Verdict—Assault with Dangerous Weapon — Included Offense. Section 2836. Rev. Laws 1910, contains two provisions. Under the first provision of said section, to sustain a conviction, it must l)e shown thar the defendant shot, shot at, or attempted to shoot another, with intent (o kill; while, to sustain a conviction under the second provision of said section 2330, it must be shown the defendant committed an assault and battery by means of a deadly weapon, or by such other means or force as is likely to produce d'\nth; and a verdict of guilty of an assault with a dangerous weapon is not responsive to any issue involved in an information based upon said section 2330, Rev. Laws 1910.

      2. ASSAULT AND BATTERY — Conviction of Assault with a Dangerous Weapon — Construction of Verdict — Sentence. A verdict finding a defendant guilty of an assault with a dangerous weapon K in law. a finding that the defendant is- guilty of an assault, and under such verdict the trial court is without jurisdiction to sen-ience the defendant to hard labor in the xienitentiary.
    3. . TRIAL — A?erdict—Responsiveness—Motion in Arrest of. Judgment. AVliere the jury returns a verdict upon an issue not submitted to them, or makes a finding that the defendant is guilty of an offense not charged or included in the information in the case, the. court, on timely motion, should arrest judgment on such verdict.

      Appeal from District Court, Grady County; Will Linn, Judge.

    Fender Polk was convicted of assault with a dangerous weapon, his motion for new trial was overruled, and he appeals.
    Reversed and remanded.

      Holding & Herr, for plaintiff in error.
    .S', P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Fender Polk, hereinafter styled defendant, was informed against for willfully, unlawfully, and feloniously assaulting Hodge Bailey with intent to kill him, convicted of “assault with a dangerous weapon,” and sentenced “to be confined, at hard labor, in the state penitentiary at McAlester, Okla., for ai period of one year and one day and to pay the costs of this prosecution.” Defendant’s motion for a new trial having been overruled, he appeals to this court.

The information, omitting caption and signature, is as follows:

“Now comes John H. Venable, the duly qualified and acting «county attorney, in and for Grady county, state of Oklahoma, and gives the district court of Grady county, state of Oklahoma, to know and be informed that Fender Polk, did, in Grady county and in the state of Oklahoma, on or about the 17th day of June, in the year of our Lord one thousand nine hundred fifteen, and anterior to the presentment hereof, commit the crime of assault with intent to hill in the manner and form as follows, to wit: That on said day and date, and in the said county and state, the said Fender Polk, then and there being, did then and there willfully, unlawfully, and feloniously make an assault upon and against and shoot at one Hodge Bailey, with a certain pistol then and there loaded with leaden bullets and gunpowder, then and there held in the hands of him, the said Fender Polk, to kill and murder him, the said Hodge Bailey, said pistol then and there being a deadly weapon, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Oklahoma.”

The evidence was in irreconcilable conflict; but there was sufficient evidence in the case to show, if believed by the jury, that the defendant shot at Hodge Bailey with a pistol, at the time and place alleged in the said information.

The jury returned a verdict, which, omitting its caption and signature of its foreman, is as follows:

"We, the jury drawn, impaneled and sworn in the above-entitled cause, do upon our oaths find the defendant, Fender Polk, guilty of an assault with a dangerous weapon •and submit his punishment to the court.”

After the verdict had been returned by the jury, and received and entered by 'the court, against the objection and exception of the defendant, the defendant made a motion in arrest of judgment, which motion, omitting caption and signature, is as follows:

“Comes now the above-named defendant and moves the court to arrest judgment in the above cause, for the reason that the verdict is not responsive to the issues, and is too indefinite and uncertain to authorize the court to pronounce judgment on the same.”

—which motion the court overruled, and the defendant excepted.

There are numerous errors assigned, but we do not think it necessary to consider any other of said errors assigned than the action of the court in overruling said motion in arrest of judgment.

Section 5923, Rev. Laws 1910, provides:

“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 therefore appears in the instant case that the controlling question to be answered is: .“Is an assault with a dangerous weapon necessarily included in the information filed in this cause?”

In Cochran v. State, 4 Okla. Cr. 379, 111 Pac. 974, it is said:

"That the jury has no power to convict a defendant of any offense, unless it is necessarily included in the offense with which he is charged in the’ information or indictment,' or of an attempt to commit such offense.”

The information in this case is undoubtedly for a violation of the first provision of section 2336. Section 2336 contains two provisions. The first provision is violated by one who “intentionally and wrongfully shoots, shoots at, or attempts to shoot at another with any kind of firearm, air gun or other means whatever with intent to kill any person.” The second provision of said section 2336 is violated by one who commits “any assault and battery upon another by means of any deadly weapon, or such other means or force as is likely to produce death, or in resisting the execution of any legal process.”

Under the first provision of said section 2336, there must be a shooting, a shooting at, or the attempt to do so, with the intent to kill; while under the second provision of .¡said section 2336 there must be an assault and battery I upon another by such means or force as is likely to produce |death. See Love v. State, 12 Okla. Cr. 1, 150 Pac. 913.

It therefore clearly appears that the question heretofore propounded must be answered: That an assault with a dangerous weapon is not necessarily included in the information in this case, and the verdict is not responsive to the information, and the court committed prejudicial error in receiving it over the objections of the defendant.

Again, if it be admitted, which we do not hold, that the information in this case is framed under section 2344, Rev, Laws, the verdict is not responsive to said section, because it omits to find that the acts charged were done with the intent to do bodily harm and without justifiable or excusable cause, and the finding of the jury that the defendant is guilty of “an assault with a dangerous weapon” is, in law, finding the defendant guilty of an assault, a misdemeanor, an issue not submitted to the jury by the instruction of the court, and the verdict is not responsive to the issues involved in this case.

The verdict of the jury being not only indefinite, but also not responsive to the information charged, and the finding of an issue not submitted to them, the court committed prejudicial error in not sustaining the motion of the defendant in arrest of judgment on the verdict rendered.

For the errors pointed out, the case is reversed and remanded.

DOYLE, P. J„ and MATSON, J„ concur.


text:
    FRANK ANTHONY v. STATE.
    No. A-2818.
    Opinion Filed December 28, 1918.
    (176 Pac. 764.)
    LARCENY — Re utfal — Evidence—Intent. In a prosecution for larceny of a cow, the xiroperty of one N. J., the defendant testified that he believed the cow taken by him belonged to Mrs. W., by whom he was then employed as manager of her ranch; that, if he took a cow belonging to N. J., he did so by honest mistake, in good faith, believing at the time that the animal belonged to Mrs. W. Held, any evidence tending to show guilty knowledge and felonious intent on the part of the defendant in the taking of the particular cow, the x>roperty of N. J., became pertinent and material in rebuttal.

      Appeal from District Court, Cherokee County; John H. Pitchford, Judge.

    Frank Anthony was convicted of larceny of live stock and sentenced to serve a term of two years in the penitentiary, and he appeals.
    Affirmed.

      J. Berry King and S. M. Rutherford, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan„ Asst. Atty. Gen., for the State.
   MATSON, J.

The plaintiff in error, Frank Anthony, was convicted in the district court of Cherokee county of having stolen a certain dark red cow, the property of Nora Jameson, and his punishment fixed at a term in the penitentiary for a period of three years. From this judgment of conviction he has appealed, and reliance is placed for reversal of the judgment upon one ground of alleged error.

. The said Frank Anthony appeared as a witness in his own behalf, and it is contended that the trial court erred in permitting the said defendant to be impeached by the testimony of one W. T. Hudson, in rebuttal, by permitting the said W. T. Hudson to testify relative to a' conversation had between the said Anthony and the said Hudson some four or five months before the trial (and before the said cow was alleged to have been stolen by defendant), in which conversation the said Anthony discussed with the- said Hudson the purchase of the particular cow, the property of Nora Jameson, which it was alleged was afterwards stolen by the said Anthony.

The ground forming the basis of this alleged error on the part of the trial court is that no sufficient foundation was first laid by the state to permit the details of the alleged conversation to be submitted to the jury.

On cross-examination of the defendant, Anthony, he was, asked if he ever had “a conversation with W. T. Hudson four or five months ago, along in the summer, at his (Hudson’s) home in Cherokee county, in which you (Anthony) discussed with him the purchase of this cow.” The defendant answered as follows: “No, I did not.” No further details of the conversation were propounded to" the defendant in the form of interrogatories. The witness W. T. Hudson was placed upon the stand in rebuttal, and was permitted over objection and exception of the defendant to "testify that he did have a conversation with the defendant, Anthony, at the time and place indicated, in which Anthony discussed with witness the purchase of the cow afterwards alleged to have been stolen by Anthony, and the witness Hudson was also permitted to give certain details of this conversation, the substance of which was that Anthony appeared at the home of the witness, and that the witness inquired of him (Anthony) what he was doing, and Anthony replied that he “was gathering up fat cattle,” and the witness then informed Anthony that Mrs. Jameson had a fat, dark red cow on the range, which would make good beef, and Anthony replied that he had offered $40 for the cow,- but that the owner wanted $50, and he could not buy her at that price.

It is strenuously contended in the brief filed in behalf of-the plaintiff in error that the apparent contradictions between the witness Hudson and the defendant, Anthony, inspired the verdict of guilty, and that the details of such conversation were erroneously admitted in evidence without the proper foundation having first been laid for admission as impeaching evidence.

When a witness in his own behalf, the defendant, Anthony, had testified that he was gathering up cattle belonging to a widow by the name of West; that he was the foreman employed by Mrs. West on her ranch, and had acted in that capacity both before and after the death of Mrs. West’s husband, which occurred some time prior to the time of this alleged theft; that the deceased, West, had purchased a red cow some time before his death from a man by the name of Christy; that, in gathering up the cattle on the particular occasion in which it is alleged that the Jameson cow was stolen, he thought he had gathered up the red cow that West had bought from Christy; and that, if he took the Jameson cow at that time, it was purely by mistake and without any criminal intent on his part. It is apparent therefore that after the defendant, Anthony, had testified in his own behalf, it became material to the issue then presented by his testimony as to whether or not he, in good faith and by honest mistake, gathered up the cow belonging to Nbra Jameson, in place of the cow belonging to Mrs. West, or whether with full knowledge of the fact that Mrs. Jameson was the owner of the cow, and after having made an effort to purchase said cow, he feloniously appropriated the said animal to his own use or to the use of Mrs. West. Any evidence tending to show guilty knowledge and intent on the part of Anthony in the taking of this particular cow then became pertinent and material in rebuttal. It is the opinion of this court therefore that such evidence was clearly admissible in rebuttal of the defendant Anthony’s testimony without the laying of any foundation whatever for the purpose of impeaching him as a witness. Chambers v. State (Tex. Crim.) 65 S. W. 192; Turner v. State, 102 Ind. 425, 1 N. E. 869.

For the reason that the evidence complained of was proper to be introduced in rebuttal of the defendant’s testimony, the question of whether or not a proper foundation ,was laid to impeach the defendant by statements made out of court variant to those .made as a witness is not discussed, nor necessary to a decision in this case.

The judgment is affirmed.

DOYLE, P. J„ and ARMSTRONG, J., concur.


text:
    CHAS. H. GARNETT v. STATE.
    No. A-3406.
    Opinion Filed December 2, 1918.
    (176 Pac. 769.)
    PRELIMINARY EXAMINATION — County Judge — Jurisdiction—Change of Venue. A county court or judge exercising jurisdiction as an examining magistrate loses jurisdiction of a cause when the defendant, or some one for him, files an affidavit; that he lias reason to believe and does believe that he. cannot have1 a fair and impartial examination before said county judge. Ilis duty in the canse thereafter is purely ministerial, and he can only enter a proper order transferring the cause to another r .agistrato as I he statute provides.

      Appeal from District Court, Payne County; John P. Hickman, Judge.

    Charles H. Garnett was convicted of obtaining money by false pretenses, and he appeals.
    Reversed, and cause remanded, with directions.

      Lydick & Lydick, Robert A. Lowry, and Chas. H. Gar-nett, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Charles H. Gar-nett, and W. F. Bland, G. C. Wisdom, J. Greely Jones, J. Dawson Mathews, and H. R. Evans were by information jointly charged with obtaining money by false pretenses from the Oklahoma State Bank of Cushing, Okla. A severance was demanded and granted, and upon his separate trial the plaintiff in error was convicted, and his punishment fixed at a fine of $500. To reverse the judgment rendered on the verdict he appeals.

In seasonable time plaintiff in error moved to set aside the information on the ground that he had no preliminary examination and did not waive the same, in that, in due time, as provided by law, this plaintiff in error filed in the county court and before the judge of said court his .application for a change of venue, on the ground of the bias and prejudice of the county judge and his affidavit averring that he had reasons to believe and did believe that he could not have a fair and impartial examination before said county judge, and setting forth a correct and certified copy of said application and affidavit, and the order of said judge as the committing magistrate denying the same; that by reason thereof said county judge was deprived of any and all jurisdiction in said proceeding against this defendant, except to grant such change of venue and to transfer said cause to some other magistrate as by law provided.

The action of the trial court in overruling the motion to set aside the information is the first error assigned, and the Attorney General confesses that this assignment of error is well founded, as follows:

. “Under section 17, art. 2, of our Constitution, he was entitled to be prosecuted for the felony charge against him, either under an indictment or by information after preliminary had before an examining magistrate. There was no grand jury sitting. He was carried before the county judge as an examining magistrate. Before anything was done there he filed an affidavit for a change of judge under section 6149, Revised Laws. This particular section is one that is contained in the Harris & Day Revised Laws; and before that we had had in this state a similar act passed in 1908.
“All along in our judicial trials, wherever a man has been accused of a crime, he has always been ready to swear the judge off the bench if it would assist him in any way. So such men have unhesitatingly made affidavit as to the prejudice of judges, and there was no means in the world of catching and convicting them where they had committed a perjury. The abuse of these statutes has been marked and wonderful. This court has noticed this abuse more than one time. See Lewis v. Russell, 4 Okla. C. 131 [111 Pac. 818]. But the fact that men take advantage of this means of blocking the game by no means argues that judges should not sometimes be disqualified. After this affidavit was filed we think that the county judge, sitting, as a committal magistrate, lost jurisdiction. Section 5816, Revised Laws; Rea v. State, 3 Okla. Cr. 276 [105 Pac. 384, 139 Am. St. Rep. 954]; Ex parte Ellis, 3 Okla. Cr. 228 [105 Pac. 184, 25 L. R. A. (N. S.) 653, Ann. Cas. 1912A, 863]; Cress v. State, 14 Okla. Cr. 521, 173 Pac. 854. See, also, on this subject, State v. Brown, 8 Okla. Cr. 40 [126 Pac. 245, Ann. Cas. 1914C, 394]; Simmons v. State, 4 Okla. Cr. 490 [114 Pac. 752; Ex parte Hudson, 3 Okla. Cr. 393 [106 Pac. 540, 107 Pac. 735]; Titsworth v. State, 2 Okla. Cr. 271 [101 Pac. 288]; Clary v. State, 6 Okla. Cr. 596 [115 Pac. 1126]; Johnson v. Wells, 5 Okla. Cr. 599 [115 Pac. 375]; Kelly v. Ferguson, 5 Okla. Cr. 316 [114 Pac. 631], etc. After a judge has lost jurisdiction, any trial by him is a nullity and is void.
“In the instant case the record shows that the trial judge positively refused to disqualify, and went on and tried this case. This amounted to having no preliminary under section 17, art. 2, of our Constitution.
“Knowing the effort of the officers of Payne county to carry out the law, we regret to have to make this confession. By reading the entire record in this case it will be seen that somebody was guilty of something. Of all men in the world lawyers should be the most prudent and honest.
“But, under any circumstances, where the Constitution is violated, and that constitutional provision being of the most vital and fundamental character, we say that a verdict obtained after such a violation should be set aside. It would not be under our harmless error statute itself (Rev. Laws, sec. 6005), so we make this confession.”

An examination of the record discloses that the confession of error should be sustained.

Bill of Rights, sec. 6, declares :

“The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall he administered without sale, denial, delay, or prejudice.”

Section 17, art. 7, of the Constitution provides:

“County courts shall also have and exercise the jurisdiction of examining and committing magistrates in all criminal cases.”

And section 17 of article 2 provides:

“No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination.”

Section 6149, Rev. Laws 1910, provides that a defendant brought before a magistrate for a preliminary examination on a complaint charging a felony may at any time before any subpcenaes are issued have a change of venue “when he or some one for him files an affidavit that he has reason to believe and does believe that he cannot have a fair and impartial examination * * * before the justice or county judge, whereupon the county attorney, or some one for him, may file an affidavit alleging the same disqualification against any one justice to whom it is proposed to send the cause for further proceedings, and thereupon the cause shall be sent to the next nearest justice,” and also provides that “the parties may agree upon a justice, whereupon the cause shall be sent to that justice.” Said section further provides that “no witnesses shall be subpsenaed for either party until after the defendant has been brought before the justice, and been offered an opportunity to change the venue

Section 5668 provides:

“That at any time before the examination is begun, a change of venue may be had, for the same causes and in the same manner, and be transmitted to another justice, as in cases finally triable before a justice of the peace.”

The framers of our Constitution guarded with special care our judiciary and tried to place it above suspicion of unfairness, passion, or prejudice, so that public confidence in our courts would not be shaken, and provided that right arid justice should be administered without prejudice. Under the constitutional provisions and the statutes quoted, the filing of a proper affidavit for a change of venue before an examining magistrate deprives him of further power or authority in the cause, and he can only transfer, the cause to another justice of the peace or county judge, and such magistrate is vested with no discretion as to whether such change shall be granted, nor is he authorized to determine the truth of the averments of the affidavit for a change of venue. The statute provides the manner of procedure by which a change of venue may be had. The duty to be performed by him is ministerial, and the duty is absolute. See Cross v. State, 14 Okla. Cr. 521, 173 Pac. 854.

Por the reasons stated, the county court or county judge exercising the jurisdiction of an examining magistrate was without authority to hold the preliminary, examination and to order the defendant to be held for trial before the district court. It follows that the trial court erred in overruling the motion to quash and set aside the information filed in this case.

The judgment appealed from is therefore reversed, and the cause remanded, with direction to proceed in accordance with law.

ARMSTRONG and MATSON, JJ., concur.


author: GALBRAITH, Special Judge.’

text:
    CECIL PROCTOR v. STATE.
    No. A-2331.
    Opinion Filed December 28, 1918.
    (176 Pac. 771.)
    X. CONSTITUTIONAL LAW — Intoxicating- Liquors — Due Process of Law — Equal Protection of Law. The legislative act making it a crime “for any person * * * to keep a place with the intent of or for the purpose of manufacturing, selling, bartering,, giving or malt liquors, or compounds whatever." * * is condemned away, or otherwise furnishing, any .spirituous, vinous, fermented by the constitutional provisions guaranteeing due process of law and the equal protection of the law.

      2. CRIMINAL LAW — Guilty Intention — Punishment. A guilty intention, unconnected with an overt act or outward manifestation, cannot be made the subject of punishment under the law. .
    3. SAME — Intent to Violate Law. An unexecuted intent to violate (he.law amounts to no more than a thought, and is not punishable as a crime.
    4. SAME — Crime—Acts and Guilty Intent. An act and a guilty intent must combine to constitute a crime, and must generally concur in point of time.
    5. INTOXICATING LIQUORS — Violation of Law — Overt Act. An information that charges a person with “keeping- a place”vwitli the unlawful intention and inirpo.se of bartering, selling, or giving away intoxicating- liquors fails to charge all the essential elements of a crime, in that it does not charge an overt act, resulting from the unlawful intent to violate the law, and a. demurrer thereto on the ground that it failed to charge a crime was well taken and should hare been sustained.

      Appeal from District Court, Oklahoma County; Geo. W. Clark, Judge.

    Cecil Proctor was convicted of keeping a place with intent and for the purpose of unlawfully selling, bartering, and giving away intoxicating liquors, and he appeals.
    Reversed and remanded, with direction to trial court to discharge the accused.

      McAdams & Haskell, Harris & Ntowlin, W. H. Wick, ■John F. Curran, Robt. A. Lowry, Mark Goode, Giddings &. Giddings, J. M. Springer, and E. C. Patton, for plaintiff-in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty Gen., Chas. West, Atty. Gen., and Smith C. Matson. and Jos. L. Hull, Asst. Attys. Gen., for the State.
   GALBRAITH, Special Judge.’

The plaintiff in error was charged by information filed in the district court of Oklahoma county, tried and convicted of “keeping a place, to wit, a two-story brick building, with the intent and for the purpose of unlawfully selling, bartering, and giving away spirituous, vinous, fermented and malt liquors,” etc.

To the iñformation a demurrer was interposed upon the ground that the information fails to charge a public offense under any law of the state of Oklahoma, and that section 4 of chapter 26, Session Laws of Oklahoma 1913, on which said informtion is based, is unconstitutional and void.

The statute under which the charge was laid (section 4 of chaper 26, Session Laws 1913) reads as follows: '

“Sec. 4. It shall be unlawful for any person to rent to another or keep a place with the intention of, or for the purpose of manufacturing, selling, bartering, giving away, or otherwise furnishing/ any spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor, or any liquors or compounds whatsoever, whether medicated or not, which contain as much as one-half of one per centum of alcohol, measured by volume, and which is capable of being used as a beverage, except preparations compounded by any licensed pharmacist, the sale of which' would not subject him to the payment of the special tax required by the laws, of the United States. Any person violating any provision of this section shall be punished by a fine of not less than fifty ($50.00) dollars, nor more than two thousand ($2,000.00) dollars, and by imprisonment of not less than thirty (30) days in the county jail, nor more than five (5) years in the state penitentiary.”

It is alleged upon this appeal that the demurrer to the information was improperly overruled.

It is argued that the above statute is in excess of the power vested in the Legislature, in this, that it makes a mere intention, unexecuted, and not connected with any overt act, a crime, and that this is an impossible thing in organized society under a constitutional government. It is further argued that the ownership of property, namely, “the keeping a place,” is an entirely lawful act, and that, when this lawful act is accompanied with an unlawful intent to violate the law at some future and indefinite time, that cannot be declared by statute to .be a crime, so long as the unlawful intent is not connected with some overt act, to place the unlawful intent into operation by possession of intoxicating liquors or by actual “sale or barter”; that this statute runs counter to the first and fundamental principles of law and is absolutely inoperative and void.

It is admitted on behalf of the state that ownership of property, that is, “the keeping a place,” is an innocent and lawful act, but-it is contended that this statute was enacted in the exercise of the police power, and that, if the Legislature determined that “the keeping a place” with the purpose' and intent of selling, bartering, and giving away of intoxicating liquors was detrimental to the good morals and public welfare, or was essential in the enforcement of the prohibitory law, it was within the legislative power to declare such use of property to be criminal and an offense against the law; that the statute itself does not run counter to the fundamental principles of the law; and that it does not condemn the ownership or use of property, a mere “keeping of a place/' but, when property is kept or used with unlawful intent to violate the law, it is within the condemnation of the statute and is properly denominated a crime; that the keeping a place connected with an intent to violate the law constitutes an overt act and may properly be declared to be an offense against the law. The following excerpt from the Attorney General’s brief will render his position clear:

“Can it be said that the Legislature intended to make that punishable which is absolutely incapable of proof? An 'unexecuted intent’ to do a thing amounts merely to a thought, and thoughts without action cannot be punished and were never intended to be punished. But it may be said that, if a person shall establish a building or place without having possession of liquor, and thereafter should say to several of his friends that some time in the future he intended to sell liquors in that particular building or place, what is to prevent his punishment under the laws?
“Here we have the keeping of the place and his voluntary statements that he intends to use such place unlawfully in the future. Our answer is that there must exist a present keeping and a present intent, and this keeping and intent, coupled, constitute the overt act. The intent is a question of fact, not of law. No intent, however felonious, unless coupled with some overt act, is criminal.”

It will be observed that here is a clear admission on the part of the state that the information in the instant case was insufficient, inasmuch as the unlawful intent was not connected directly with some overt act, and therefore that the demurrer thereto was well taken. It cannot be true that “the keeping a place,” coupled with the present intent to violate the law, constitutes an overt act. It is admitted that “the keeping a place” is an innocent thing, and that an unexecuted criminal intent is not punishable as a crime, therefore that no crime is charged.

The possession or ownership of liquors is not alleged in the information, nor is it alleged that the. liquors were manufactured, bartered, or given away in the place kept. The information does not attempt to charge an overt act or any attempt to place the unlawful intention into execution. As it stands, the information upon its face charges: First, the keeping of a place, an admittedly lawful act; and, second, the possession of an unexecuted unlawful intent to barter, sell, or give away liquor. And it is admitted that this unlawful .intent, so long as unexecuted, amounts merely to" a thought, and is not subject to punishment. In the language of Mr. Justice Sherwood, of the Supreme Court of Missouri:

•‘With a mere guilty intent unconnected with an overt act, or outward manifestation, the law has no concern.” (Ex parte Smith, 135 Mo. 223, 36 S. W. 628, 33 L. R. A. 606, 58 Am. St. Rep. 576.)

So in the instant case the information merely charges an innocent act, “the keeping a place,” and the possession of an unlawful, unexecuted intent, and attempts to make that a crime. There is no overt act charged in the information in connection with the unlawful intent.. It is true the charging part of the information is in the language of the statute, and would be sufficient if the statute defined a crime, but the statute itself fails to define a crime, inasmuch as it attempts to make an innocent act, namely, “the keeping of a place,” accompanied with an unlawful and unexecuted intent to violate the law, a crime. This the Legislature had no power to do, whatever may have been its intention in enacting the statute under consideration. To constitute a crime there must be someómis-sicfn or commission.

An intent to commit a crime is not indictable; and, although the intent is, in general, of the very essence of a crime, some overt act is the only sufficient evidence of the criminal intent. Kelley’s Crim. Law & Prac. par. 5; 4 Blackstone Comm. 21; Howell v. Stewart, 54 Mo. 400; State v. Painter, 67 Mo. 84. The essential elements necessary to constitute a crime under the law are enumerated in Blackstone Comm. book 4, p. 20, as follows:

“An involuntary act, as it has no claim to merit, so neither can it induce any guilt; the concurrence of the will, when it has its choice either to do or to avoid the fact in question being the only thing that renders human action either praiseworthy or culpable. Indeed, to make a complete crime cognizable by human laws, there must be both a will and an act. For, though, in foro conscientiae, a fixed design or will to do an unlawful act is almost as heinous as the commission of it, yet, as no temporal' tribunal can search the heart, or fathom the intentions of the mind, otherwise than as they are demonstrated by outward actions, it therefore cannot punish for what it cannot know. For which reason, in all temporal jurisdictions, an overt act, or some open evidence of an intended crime, is necessary in order to demonstrate the depravity of the will, before the man is liable to punishment. And, as a vicious will without a vicious act is no civil crime, so, on the other hand, an unwarrantable act without a vicious will is no crime at all. So that to constitute a crime against human laws there must be, first, a vicious will, and, secondly, an unlawful act consequent upon such vicious will.”

To the same effect Mr. Bishop, in his work on Criminal Law, vol. 1, announces the rule applicable to the question under consideration as follows, in section 204:

“Now the state that complains in criminal causes, does not suffer from the mere imaginings of men. To entitle her to complain, therefore, some act must have followed the unlawful thought. This doctrine is fundamental, ,and, in a general way, universal; but slight differences in its common law applications appear in the books, and now and then a statute is enacted departing from, judicial precedent.”

In section 206:

“Sec. 206. From the foregoing views results the rule established in the legal authorities that an act and evil intent must combine to constitute in law a crime.”

And in section 207:

“Sec. 207. And generally, perhaps always, the act and intent must, to constitute an offense, concur in point of time.”

A case in point is that of Ex parte Smith, 135 Mo. 223, 36 S. W. 628, 33 L. R. A. 606, 58 Am. St. Rep. 576, where the first and second paragraphs of the syllabus are as follows: '

“A municipal ordinance making it a crime for ‘any one knowingly to associate with persons having the reputation of being thieves, burglars, pickpockets, pigeon droppers, bawds, prostitutes, or gamblers, or any other person, for the purpose or with the intent to agree, conspire, combine, or confederate to commit any offense, or to cheat or defraud any person of any money or property,’ is unconstitutional as being an invasion of the rights bf personal liberty.”
“Guilty intention, unconnected with an overt act or outward manifestation, cannot be the subject of punishment under statute.”

Mr. Justice Sherwood, in the course of the opinion in the above case, says:

.“This ordinance is now attacked on the ground of its unconstitutionality in that it invades the right of personal liberty by assuming to forbid that any person should knowingly associate with those who have the reputation of being thieves, etc. And certainly it stands to reason that, if the Legislature, either state or municipal, may forbid one to associate with certain classes of persons of unsavory or malodorous reputations, by the same token it might dictate who the associates of any one may be. But if the Legislature may dictate who our associates may be, then what becomes of the constitutional protection to personal liberty, which Blackstone says ‘consists in the power of locomotion, of changing situation, or moving one’s person to what-sover place one’s own inclination may direct, without imprisonment or restraint, unless by due course of law’? 1 Blackstone’s Commentaries, 134. Obviously there is no difference in point of legal principle between a legislative or municipal act which forbids certain associations and one which commands certain associations. We deny the power of any legislative body in this country to choose for our citizens whom their associates shall be.
“And as to that portion of the eighth clause which uses the words, ‘for the purpose or with the intent to agree, conspire, combine, or confederate, first to commit any offense,’ etc., it is quite enough to say that human laws and human agencies have not yet arrived at such a degree of perfection as to be able, without some overt act done, to discern and to determine by what intent or purpose the human heart is actuated. So that, did we concede the validity of the former portion of the eighth clause, which we do not, still it would be wholly impracticable for human laws to punish or even to forbid improper intentions or purposes. For with mere guilty intention, unconnected with overt act or outward manifestation, the law has no concern. Howell v. Stewart, 54 Mo. 404.”

We quite agree with Justice Sherwood that:

“Human laws and human agencies have not yet arrived at such a degree of perfection as to be able without some overt act done to discern and to determine by what intent or purpose the human heart is actuated.”

The purpose of the Legislature in the enactment of the statute is not clear, since it makes the intent to do the forbidden act a felony, and does not attempt to repeal the statute (section 3610, Rev. Laws 1910) which makes it a misdemeanor to keep a place for the sale of intoxicating liquors, the evil presumably intended to be suppressed. These statutes present the strange anomaly, the one denominates the completed act, keeping a place where intoxicating liquors “are received and kept for sale” as a misdemeanor, while the other condemns “the keeping a place” with intent to sell, etc., as a felony and makes it punishable as such, thus penalizing the intent to do the act as a felony, while the act when done is penalized only as a misdemeanor. In any view of the case this statute is condemned by the due process of law provision of the Constitution.

We conclude that “the keeping a place” with the unlawful purpose and intent to sell, barter, or give away intoxicating liquors cannót be declared to be a crime, for the reason that such an act, although connected with an unlawful intent, still lacks an essential element necessary to constitute a crime under the law, in this, that the statute fails to connect such unlawful intent with any overt act, as a result or consequence, and further fails to charge the possession of the liquors, the very means essential to the consummation of the unlawful purpose to violate the prohibitory law, and therefore the statute under consideration does not define a crime, and that the information in the instant case did not charge an offense, and the demurrer thereto was well taken, and should have been sustained.

It is therefore ordered that the judgment of conviction be vacated, and the cause remanded, with direction to the trial court to discharge the accused.

DOYLE, P. J., and ARMSTRONG, J., concur.

Note. Judge SMITH C. MATSON, a member of this court, having briefed the constitutionality of the act on which the charge is based while an Assistant Attorney' General, disqualified himself to sit, and this fact having been certified to the Governor of the state, C. A. GALBRAITH, Esq., was duly appointed and commissioned a special judge of the Criminal Court of Appeals to sit in his place.


text:
    ROSS MULLINS v. STATE.
    No. A-2779.
    Opinion Filed December 28, 1918.
    (176 Pac. 765.)
    1. RECEIVING STOLEN GOODS — Conviction — Knowledge. To sustain a conviction of receiving property recently stolen, knowing it to have been stolen, it must be shown by direct or circumstantial evidence, beyond a reasonable doubt, that at the time defendant received such property he knew it had been stolen.
    3. TRIAL — Proof of Elements of Crime — Directed Verdict. When ■the evidence fails to show every essential element of a crime charged, the court, on proper motion, should direct a verdict for defendant.

      Appeal from,■ District Court, Garvin County; F. B. Swank, Judge.

    Ross Mullins was convicted of receiving stolen goods, and he appeals.
    Reversed and remanded, with instructions.

      Stanley & Osborn, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State. ,
   ARMSTRONG, J.

The plaintiff in error, Ross Mullins, hereinafter called defendant, was informed against in the district court of Garvin county for the offense of “feloniously and fraudulently receiving property that had been stolen, knowing that the same had been stolen,” convicted, and sentenced to serve 18 months in the State Reformatory at Granite, Okla. The defendant’s motion for a new trial being overruled, he brings error to this court.

The uncontradicted evidence is that, among other things, a pair of boots were stolen from a store in Lindsay, in the county of Garvin, by one Searcy Hawkins; that said Hawkins carried said pair of boots to the home of the defendant’s father in said county, where the defendant, a boy of 18 years of age, resided; that the sheriff of said county, under a search warrant, searched the home of défendant’s father, and found the stolen boots in the bottom of a box containing meal, with which the boots were covered, which box was in the kitchen of defendant’s father; that when the boots were found defendant claimed that the boots belonged to him, “that he had bought them from Searcy Hawkins and paid $5 for them,” and defendant was then asked by the sheriff, why he, the defendant, had not told this before, and the defendant gave as his reason therefor that “he did not want to lose the boots.” Searcy Hawkins, who was at the time serving sentence in the penitentiary, testified that, after stealing two pairs of boots from a store in Lindsay, he carried these boots to the home of the defendant’s father, where he (witness) spent a day and night; that the boots laid around the house and were tried on by several persons at the house; that one pair of boots were sold; that he did not know what became of the other pair; that he did not know whether or not the defendant knew that the boots had been stolen; that he did not know that he knew the defendant; that he could not say that he had ever seen him before; that he had never sold or given the defendant any boots.

There is no evidence, or evidence from which a reasonable inference might be drawn, that the defendant at the time he got the boots knew that- the boots had been stolen.

The foregoing being substantially all the material evidence, at its conclusion the defendant requested the court to instruct the jury to find the defendant not guilty, which the court refused to do, and to such action of the court the defendant duly excepted.

We deem it unnecessary to review any of the several errors assigned other than the refusal of the court to instruct the jury to acquit the defendant.

Evidence of the unexplained possession of property recently stolen is not of itself sufficient to sustain a conviction, Defendant could not be legally convicted of receiving the boots knowing them to be stolen, unless he knew at the time he received them, or had reason to believe, that the boots were stolen. State v. Rountree, 80 S. C. 387, 61 S. E. 1072, 22 L. R. A. (N. S.) 833; 34 Cyc. 515, and authorities there cited.

The want of evidence, direct or circumstantial, showing beyond a reasonable doubt that the defendant knew at the time he bought or received the boots which were stolen that the same had been stolen, is fatal to a conviction in this case, as section 2664, Rev. Laws 1910, requires the defendant to have received the property wth knowledge at the time he received it that such property had been stolen, and the court committed prejudicial error in refusing to instruct the jury to find the defendant not guilty.

■ It may be that the hiding of the boots in the box of meal is sufficient to raise a suspicion that the defendant had knowledge of the theft when he received the boots. Suspicion is not proof, and to sustain a conviction of crime every material element thereof must be supported by evidence. Hamil v. State, 8 Okla. Cr. 119, 126 Pac. 591.

This case is reversed and remanded, with instructions to proceed in another trial in accord with the viéws expressed in this opinion.

DOYLE, P. J„ and MATSON, J., concur.