text:
    JOHN GLENN v. STATE.
    No. A-9785.
    June 4, 1941.
    (114 P. 2d 192.)

      George L. Sneed, of Madill, and Newman & Phillips1, of Durant, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Jess L. Pullen and J. Walker Field, Asst. Attys. Gen., for defendant in error.
   JONES, J.

The defendant, John Glenn, was charged in the district court of Marshall county with the offense of embezzlement, was tried, convicted and sentenced to serve three years in the State Penitentiary, and has appealed toi this court.

The various assignments of error will be discussed in the order in which they are presented in the brief of defendant.

It is first contended by the defendant that the county judge, sitting as a committing magistrate, erred in transferring the case from the county court to the justice of the peace court at Kingston upon the affidavit for a change' of venue filed by the defendant for the reason that the nearest justice of the peace was at Madill.

The preliminary complaint was filed before the county judge of Marshall county at Madill. Upon the filing of the affidavit for change of venue, the court made an order granting the change of venue, and the court clerk transi-mitted the papers in the case to the justice of the peace at Kingston. It is stipulated in the record that the Kingston justice of the peace district is an adjoining district to the city of Madill.

It is provided in the Oklahoma Constitution, sec. 17, art. 7, Okla. St. Ann. Const.:

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

Section 3335, O. S. 1931, 39 Okla. St. Ann. § 501, provides:

“In criminal proceedings a change of place of trial may be had in a cause triable before a justice under the provisions of this article, or upon which a preliminary examination may be held, at any time after the defendant appears, and before any subpoenas are issued, when he or some one for him files an affidavit that he has reasons; to believe and does believe that he cannot have a fair and impartial examination or trial, as the case may be, 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 who is in no way related to the defendant or prosecuting witness or party injured who, is not a witness andi has not been an attorney in the cause, and who may not bel absent or physically be unable to act. * *

It is contended that the justice of the peace district at Madill, being in the same city in which the county court is located, is the nearest justice of the peace, and where no objection is filed by the county attorney that the papers should have been sent to that district.

The proof shows that prior to this time, a case had been filed before the justice of the peace at Madill charging the same offense upon which the defendant was later’ convicted. That this case was later dismissed before the justice of the peace.

The county attorney who filed the complaint herein did not participate in the preliminary proceedings, and later filed his disqualifications with the district judge, and a special prosecutor was appointed by the district judge. In addition, the Attorney General also appeared for the state. _ At the time the affidavit for a change of venue was filed, there was no one appearing before the county court for the state. For this reason there was no one to object in accordance with the statute on behalf of the transferring- of the case to the justice of the peace in iMadill. Apparently, from the record, the county judge felt, that the justice of the peace a,t Madill was disqualified from proceeding with an examination in said cause, and accordingly had the papers transferred to the adjoining' justice of the peace district at Kingston. Objection to proceeding before this justice of the peace was made and overruled at the beginning of the preliminary examination.

Later, when the defendant challenged the jurisdiction of the district court upon arraignment for the reason that he had not had a preliminary examination as required by law, it was admitted by the prosecution that H. F. Keller, the justice of the peace at Madill, was the nearest justice of the peace to the county court at Madill, and that he was not disqualified under the statute.

Under this statute, section 3335, supra, it is mandatory upon the examinating magistrate to- transfer the cause immediately upon the filing of proper affidavit for a change of venue. As to whether the magistrate has any discretion in determining who is the nearest justice of the peace, as- contemplated by the statute, this court has never 'had occasion to- decide. It will be noted that there are certain limitations in section 3335, supra, requiring that the nearest justice of the peace be qualified, which would seem to vest, in the magistrate the judicial discretion of determining who is the nearest qualified justice of the peace. He may not arbitrarily refuse to send a transcript to the nearest justice of the peace; but if there are facts before the magistrate- indicating that the nearest justice of the peace is disqualified, he is vested with the discretion of refusing to- send to that justice of the peace and should send the papers to- the next nearest justice of the peace who is qualified under the statute. Here it appears that the county judge was under the mistaken impression that the justice of the peace at Madill was the same justice of the peace before whom a hearing had formerly been held on a similar charge of embezzlement against the defendant.

All that either the state or defendant is entitled to. is a fair and impartial examination before a disinterested and impartial magistrate. A complete transcript of thel record taken before the committing magistrate has been made a paid of the record herein. The evidence introduced! by the state at the preliminary hearing was substantially the same as that introduced upon the .trial in the district court. There has never been any contention made before the committing magistrate who conducted the examination, before the district court or in this court that the magistrate who conducted the preliminary proceedings was unfair or disqualified in any manner. On the other hand, the transcript of the proceedings showed that the rulings were fair and that there was an abundance of evidence to .support the order of the court binding, the defendant over to the district court for trial.

If we should assume that the county judge erred in not transferring the papers in said case to the justice of the peace at Madill, still such error would only be a technical violation of a directory provision of the statute and, in the absence of any showing of injury, is not of such importance a,si to. require a reversal of this case.

It is well settled that it is not error alone that reverses judgments of conviction of crime in this state, but error plus injury; and the burden is upon the defendant to establish the fact that he was prejudiced in his substantial rightsi by the commission of error. Murphy v. State, 71 Okla. Cr. 1, 112 P. 2d 438; Newman v. State, 35 Okla. Cr. 296, 250 P. 554; Starr v. State, 7 Okla. Cr. 574, 124 P. 1109.

It is next contended that the court erred in permitting the state to endorse the name of C. P. Strother as a witness on the information and permitting him to testify over the objection of the defendant during the trial and in refusing to delay the case to give defendant an opportunity to investigate the matters testified to by this witness.

In considering this assignment, it is necessary to set forth the substance of the evidence relied upon by the state. The state introduced in evidence the letters of guardianship, the oath, and the bond of the defendant when he was appointed guardian of Tom Lewis, am Imdian minor. The appointment was made on May 1, 1928. The minor was a young Indian boy who had inherited a small interest in some land, but whose principal estate consisted of certain moneys to be paid him as the proceeds of a policy of war risk insurance on the life of his father, a deceased veteran of the World War. The said minor, Tom Lewis, upon becoming 17 years of age, filed a petition in the county court of Marshall county praying for the removal of the defendant as his guardian and nominating one Frank Stowers to be appointed to succeed the defendant as guardian. On February 17, 1936, an order was made by the county court of Marshall county removing the defendant as guardian of the person and estate of said minor and directing the defendant to file his final account in said guardianship proceedings on or before March 9, 1936; and in the same order Frank Stowers was appointed guardianship of the person and estate of said minor. The proof further shows that immediately after said order was made, the said Frank Stowers qualified as such guardian and assumed the duties as guardian.

There was introduced an exhibit identified as the final account of the guardian, the same being the account of the defendant, John Glenn, duly sworn to' by the defendant, which was filed in the county court of Marshall county on March 16,1936. In this final account the guardian set forth certain funds which had been received since the filing of the previous! annual report, and asked for certain credits for disbursements which he had made, leaving a balance due to the said ward, according to said final account, in the sum of $921.24. Later upon the hearing concerning the approval of the final account, the county court found that the defendant wasi indebted to the minor in the sum of $7,496.58, and directed the defendant as guardian to pay said sum to Frank Stowers as successor guardian of said minor. No appeal was ever taken from this order of the county court. The findings of the court as set forth in the order were properly held inadmissible as heresay.

Frank Stowers testified that he had received no money from the defendant after the filing of his final account. That on November 29,1937, he served a written demand on the defendant to pay over to him as guardian of said minor the sum of $7,496.58. He further testified that subsequent to the making of this formal written demand upon the defendant, the defendant still had made no payments to' ■him as guardian of said minor, and that up to the time of the trial of this case he had never paid nor offered to pay any of the money owing to' said ward.

There was also' introduced in evidence proof of the sale of certain real estate from which the defendant acquired money belonging ,to said ward, for which no' accounting had been made, in the sum of $400, in the year 1935.

At the conclusion of this testimony, the state asked and was granted permission to endorse the name of C. P. Strother on the information and to use him as a witness in said case, which ivas done over the objection of the defendant. This Avitness was an officer of the bank at Madill where the defendant had carried his guardianship account, and his testimony was limited to an identification of the account, showing the deposits and Avithdrawal'si by the defendant as guardian during the period of his guardianship. So far as the state was concerned, his testimony was not necessary to a conviction and could only be cumulative.

As shall be later shown, the defendant did not take the witness stand, and the only defense interposed in this case is the contention of the defendant that the statute of limitations has barred any action against the defendant.

The only fact in evidence which in any manner tends to> support this contention of the defendant is the bank account of the defendant, identified by the witness, Strother. Instead of being an aid to the prosecution, the testimony of the witness, Strother, injected into the case the only serious question for disposition, to> wit, the statute of limitations. The bank accounts exhibited by this Avitness showed that the defendant had made various deposits over a long period of time but had made repeated withdrawals from this fund; but according to this record, the account was closed and no Avithdrawal of funds had been made by the defendant during the three years immediately preceding the filing of the criminal complaint, except for certain items which were set forth in the final account and! which admittedly were for the benefit of the ward. These items consisted of one $150 check payable to Stowers asi successor guardian, pursuant to the order of the court, pending the filing of the final account, and two checks in the sum of $25 each for groceries for the ward.

It has been the uniform holding of this court that the matter of permitting the county attorney to endorse the name of an additional witness on the information, even after the trial has begun, is a matter addressed to> the sound discretion of the trial court, and that this court will not interfere with the action of the trial court unless the record clearly shows an abuse of discretion. Heglin v. State, 56 Okla. Cr. 364, 40 P. 2d 41; Stockton v. State, 5 Okla. Cr. 310, 114 P. 626; Vance v. Territory, 3 Okla, Cr. 208, 105 P. 307.

When this man Avas called as a witness, the defendant asked the court for a reasonable time to talk to the witness to ascertain the facts about which the witness intended to testify. In accordance with this request, the court gave the defendant and his counsel 25 minutes to talk to the witness. Under the record, since the testimony given by this witness was favorable to the defense of the defendant and could not have affected any of his substantial rights, Ave do not find any error in the action of the trial court in permitting the Avitness to be used.

There Avas no effort made by the defendant at the close of the witness’ testimony to show that they had been surprised in any particular manner or that his testimony Avas of such a nature that it would require a postponement of the trial to enable them to prepare to defend against .the evidence shown by this witness. For this additional reason, even though the defendant did formally ask for a continuance because of the introduction of this evidence, the court did not err in denying this request.

When the case was called for trial, the defendant, through his counsel and in the absence of the defendant, filed a motion for continuance because of the illness of the defendant. A doctor testified in support of this motion that he had examined the defendant that morning’ and found him suffering from nervous indigestion, and that under ordinary circumstances it would be the following day before he could proceed with the trial. That the defendant did not have any temperature and that the fact that he was charged with a crime had probably tended to malee him very nervous. After this testimony was introduced, the court postponed the hearing until 1:30 on that day, and directed counsel to have the defendant in court at that time, ready to proceed with the trial. At 1:30 the defendant appeared in court and through his counsel again asked that the case be continued because of the illness of the defendant. One of the counsel for the defendant, Mr. Newman, suggested that they proceed to select the jury that afternoon, at which time the court made this ruling:

“By the Court: I think Judge Newman’s suggestion is proper. We will proceed. I am not going to force this» man to sit there when he is not able. We will go. ahead and get the jury and get the case started, and then if Mr. Glenn is not feeling like it, we can take a recess. You are entitled to have all the accommodation that I can allow you. I will not continue this case. I will try it. We must get rid of it. We will go ahead and gelt' the jury and Mr. Glenn, if you need to from time toi time, and if you feel like it, that you have to' get out, why you let me know, and I will accommodate you. Tell the jury to come in, the motion will be overruled.”

After the jury was impaneled and sworn to try the case, a short recess' was taken. At the conclusion of the recess, without any objection on the part of the defendant, the state proceeded with the introduction of their evidence. Later in the afternoon some legal questions arose during the trial of the case, and the court adjourned court until ¡the following morning to allow counsel time to present certain authorities to the court upon legal questions which had arisen and to. which the objection of the! defendant was later sustained by the court. These matters, not being admitted in evidence and not going before the jury for their consideration, are not included in the record and not before this court on appeal. After the state commenced the introduction of their evidence, there was no further request by the defendant for a continuance or recess on account of his sickness.

In Nix v. State, 20 Okla. Cr. 373, 202 P. 1042, 26 A.L.R. 1053, this court held that continuances based on mental or physical condition of accused or the application therefor are addressed to the discretion of the trial court, and the court may properly deny a continuance asked on such ground in the absence of a showing that proceeding with the trial will operate to the substantial prejudice of the accused or endanger his life or health. Morrison v. State, 35 Okla. Cr. 311, 250 P. 543; Cole v. State, 46 Okla. Cr. 365, 287 P. 782; Murphy v. State, supra.

It is evident that there was no abuse of discretion in overruling the motion for a continuance.

Lastly, it is contended that the court erred in refusing to give the jury certain instructions requested by the defendant. This assignment of error is directed to the proposition that the prosecution of the defendant is barred by the statute of limitations.

The defendant requested several instructions concerning the statute of limitations, each of which would have had the effect of instructing the jury to have returned a verdict of not guilty for the reason that the proof of the state showed that the criminal action was barred by the statute of limitations.

The court gave the following instructions:

“The exact time the offense is alleged to have been committed is immaterial. Proof of the commission of the offense at any time within three years prior to the 28th day of January, 1939, the date of the filing of the complaint herein, is sufficient as to the time.”

The defendant urges that the case of Synnott v. State, 38 Okla. Cr. 281, 260 P. 517, is identical with the facts in the instant case, and should control in the disposition of this question. In the Synnott Case, the defendant was appointed guardian on November 26,1920, and as such guardian received $1,330 of his ward’si money. In December, 1920, these funds were used to purchase stock in a company, which stock was taken in the name of the guardian. The complaint was filed February 9, 1925. This court held that the proof of the state affirmatively showed the conversion of funds to the guardian’s own use more than three years prior to the filing of the complaint and wate, therefore, barred by the statute of limitations.

In this case there is no such similar proof by the state.

The state shows withdrawals of funds from the bank account of the guardian at various intervals, but it is not •shown what disposition was made of these moneys. The defendant did not testify and offered no proof to show that these withdrawals were conversions to the use and benefit of the defendant. The defendant as guardian was under no order of the court nor obligation in any manner to keep the funds in a certain bank or to keep them in any bank.

Under section 1436, O. S. 1931, 58 Okla. St. Ann. § 776, every guardian appointed in the State of Oklahoma accepts his appointment as guardian under certain conditions named in said statute, among which it is provided that the guardian shall: “render an account on oath of the property, estate and moneys of the ward in his hands, * * * and of the management and disposition of the same, * * * and at the expiration of his trust to settle his accounts with the county judge, or with the ward, if he be of full age, or his legal representatives, and to pay over and deliver all the estate, moneys * * * remaining in his hands, or due from him on such settlement, to the person who is lawfully entitled thereto.”

There is nothing in the record to show that the guardian was obligated to keep the funds of the ward in any bank. His obligation under the trust, which he assumed was to faithfully conserve the estate of said ward and to pay over to his legal representative, after he was discharged as guardian, the moneys and estate in his hands. It is earnestly contended by the defendant that since the bank account identified by the witness, Strother, was admitted in evidence and that the last unexplained withdrawal in said account occurred in December, 1935, that that date should be! used as the date from which to compute the running of the statute of limitations. However, the state does not show the disposition of the funds as was: done in the Synnott Case. If the state had shown that the defendant withdrew the' funds in December, 1935, and had used them in buying stock in his own name or for some other purpose inconsistent with the best interests of the ward and for the private! interest of the guardian, then he would have a comparable situation to> the facts as shown in the Synnott Case.

There are no Oklahoma, cases where the factual situation is parallel to the case at bar. One of the closest cases in point is the case of Waide v. State, 13 Okla. Cr. 165, 162 P. 1139, 1141, which case was reversed because of the failure of the state to prove the corpus delicti; that is, the state wholly failed to prove any embezzlement.

However, in that case the court used the following language:

“It is essential to the legal conviction of the defendant in this case of the offense of the embezzlement charged that the money alleged to- have been embezzled belonged to the estate of his ward, and came into his hands as guardian of said ward, and that the said money was misappropriated or was nsed in some way other that in the due and lawful exercise of his trust as guardian. * * *
“We are of the opinion, and so hold, that the trial court did not err in admitting in evidence the records of the county court showing the application of the defendant for the sale of the lands of his ward, the order to sell the same, the report of the sale of said lands, and the confirmation of said sale, together with the said report of thé defendant of his receipts and disbursements as such guardian, and that by said records it was made to appear beyond a reasonable doubt that the money alleged to have been embezzled came into the hands of the guardian for the use of said ward, which it was his duty not to convert to any purpose other than in the lawful exercise of his trust as such guardian.
“The uncontradicted evidence also shows that no adjudication of said report was made by the county court, that the defendant was not removed as guardian, or that any one having authority so to do ever made a demand on the defendant for the payment of said funds or any part thereof, and that the defendant did not properly respond to such demand if made. Indeed, so far as is shown by any evidence in the case, the money alleged to have been embezzled or any part thereof is not shown to have been in any manner used or disposed of by the defendant, and the confession insisted upon by the state as contained in the said transcript of the examination of defendant by the county judge was improperly admitted in evidence, even if there was any evidence therein tending to show the commission of the crime charged, until other evidence than such confessions had been introduced of the corpus delicti.
“Defendant did not testify in his own behalf, and, so far1 as the evidence in this case discloses, all the money alleged to have been embezzled by him may have been at the time of his trial and conviction in defendant’s hands or on deposit in some safe place subject to* his order.”

By inference it follows that if the defendant in the Waide Case had been removed as guardian and a demand was made for payment of the funds to the person lawfully entitled thereto' and payment was refused, that such circumstances would have been sufficient to support the conviction. The preliminary complaint was filed herein on the 28th day of January, 1939. On March 16, 1936, and within three years prior to filing of the complaint, the defendant filed his final account, duly sworn to by the defendant, in which he states that he has a balance on hand due to' the said Indian ward in the sum of $921.24. Although the proof shows a much larger sum owing to the ward, it is this amount that he is charged with embezzle-ing in the information filed herein. His successor as guardian under the statutes of Oklahoma was the person to whom he was under obligation to pay this money. A written formal demand was made on the defendant for payment, and payment was refused, and up to the time of the trial no payment, of this balance was ever made nor any part thereof.

This prosecution was instituted under the provisions of section 2043, O. S. 1931, 21 Okla. St. Ann. § 1454, which is as follows:

“If any person being a trustee, banker, merchant, broker, attorney, agent, assignee in trust, executor, administrator or collector, or being otherwise entrusted with or having in his control property for the use of any other person, or for any public or benevolent purpose, fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement.”

It is apparent that, under the provisions of section 1436, supra, the defendant in the lawful execution of his trust became obligated to pay to his successor as guardian the sum acknowledged by the defendant in his final account to> be due to said ward, and any other sum actually owing to said minor, and his failure upon demand so' to do constitutes an act of embezzlement.

In the case of Blake v. State, 12 Okla, Cr. 549, 160 P. 30, L.R.A. 1917B, 1261, it is held:

“A fraudulent conversion is an essential element of the crime of embezzlement, and such conversion must be shown by proof that the embezzler appropriated the money to his own personal use or that he placed it to some other' use than the purpose for which it was received by him, or that he failed to account for and pay over the same on proper and lawful demand.”

See, also, Choate v. State, 12 Okla. Cr. 560, 160 P. 34, L.R.A. 1917A, 1287.

In the case of Colvin v. State, 127 Ind. 403, 26 N. E. 888, it is stated :

“An information for embezzlement, which charges that defendant, as guardian, collected certain moneys of his ward at a certain time, and that at a certain subsequent time the ward, having meanwhile become of age, demanded an accounting and payment, but that the guardian failed and refused to' make payment, and converted the money to his own use, is sufficient where the last-mentioned date is within the period of limitation though the first date is not.”

The theory of the defendant is based upon the fact that the bank account which was introduced in evidence shows a continuous withdrawal of funds throughout the guardianship, but none for more than three years prior to filing of the complaint. In the eyes of the law these withdrawals are only circumstances which could be considered, together with other facts and circumstances, which taken together might be sufficient to show an unlawful conversion. The act of withdrawing the funds on deposit, standing alone, is not a criminal- act, and by itself does not- show a criminal intent to embezzle the money. He may have intended to deposit the money in some other bank or to invest it in safe securities. The checks written by the defendant in making the withdrawals were evidently not available to the state, and were not introduced in evidence. If the only proof the state had introduced had been the ’bank account showing the deposits and withdrawals, of course, the case would have had to have been dismissed for lack of proof of the corpus delicti. The state had already established a prima facie case of embezzlement against the defendant before the introduction of the testimony of the witness, Strother.

Since, as stated above, the withdrawals, standing alone, would not have been sufficient to show an unlawful conversion, the running of the statute of limitations does not begin from the date of the last unexplained withdrawal of the funds.

It is our opinion in the instant case, where no specific act of conversion to his own use is shown by the state, that the statute of limitations commences to run at the time the-defendant was removed as guardian and Frank Stowers was appointed to succeed him as guardian of the Indian minor. That was the date which, in accordance with the statutes and the trust obligation assumed by the defendant, he became obligated toi pay the legal representative! of said minor the funds which he showed by his final account to' be due to> said ward.

In making this ruling, we are not overruling Synnott v. State, supra; and if the evidence in this case had showed that on a specific date a conversion of funds was made to the use and benefit of the defendant or to a purpose not consistent with his obligations under the trust agreement as guardian, then the statute of limitations would have commenced to have run from the specific date, regardless of the fact that the conversion might not have become known to the ward or his legal representative until after the criminal action against the guardian had become barred by reason of the statute of limitations. The instruction given by the court was proper under the record.

There are other assignments in the petition in error which were not briefed and are not of sufficient merit to require discussion.

Here the proof of guilt is conclusive. If the defendant were given a new trial, no reasonable jury under this evidence could do other than find the defendant guilty.

The defendant was a former sheriff of Marshall county. A large number of the best citizens of that county, including the former county attorney who filed the charge of embezzlement, testified to the good character of the defendant. It is evident that defendant has many friends and that he has a good reputation as an honest, lawabiding citizen in that county. The surety on defendant’s bond has settled with the guardian for their liability for the alleged shortage. The jury, in passing upon the case, could not agree upon the punishment which should be given, and the same was left to the judgment of the trial court. The punishment could have been as low as one day or as high! as five years in the State Penitentiary. The trial court in the exercise of his judgment sentenced the defendant to three years in the State Penitentiary. In consideration of the age of the defendant and the excellent reputation he has enjoyed in the past, including his years of service as a peace officer, we feel that the interests of justice will be met by reducing the sentence imposed upon the defendant from three years in the State Penitentiary to a term of one year in the State Penitentiary.

It is therefore ordered that the judgment of the district court of Marshall county be modified by reducing the sentence assessed against the defendant from three years in the State Penitentiary to a term of one year in the State Penitentiary, and the judgment and sentence, as thus modified, is hereby affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., absent.


source: Caselaw Access Project

author: BAREFOOT, P. J.

license: Public Domain

text:
    CLYDE CAMPBELL v. STATE.
    No. A-10018.
    June 4, 1941.
    (114 P. 2d 179.)
    Mac Q. Williamson, Atty. Gen., and O. E. Enfield, Co. Atty., of Arnett, for the State.
    L. H. Clark, of Arnett, for defendant.
   BAREFOOT, P. J.

Defendant Clyde Campbell was charged jointly with Bob Haynes with the larceny of an automobile in the district court of Ellis county on the 19th day of September, 1940, was tried, convicted and sentenced to serve a term of five years in the penitentiary, and has! appealed.

The, record reveals that this defendant was unable to give bond pending appeal, and is now confined in the penitentiary, and for this reason his case has been advanced and decided at this time.

Counsel for defendant was appointed by the court and has performed his services well and without compensation. Defendant was tried before the court without the intervention of a jury. The case-made has been filed, but counsel for defendant has not filed a brief for the reason that the only question involved is whether under the evidence defendant is guilty of the crime charged. No questions of law are involved.

The defendant and his codefendant Bob Haynes were charged jointly with the larceny of an automobile, the property of L. R. Bidders, at Shattuck, Ellis county, on the 19th day of September, 1940. The car was1 stolen from the sales ground in Shattuck about 2:30 p. m. The evidence is that the defendant and Bob Haynes^ his codefendant, were tramping over the country. The defendant lived in St. Louis, Mq., but had recently been in California and was riding freight trains on his way back to St. Louis. On the morning of the 18th of September, 1940, he arrived in Woodward on a freight train and met there for the first time his codefendant Bob Haynes, who- came in on the same train, and they went together to a cafe and had breakfast. They remained together during the day. That night this cafe was burglarized and certain cigarette vending machines and music boxes were pilfered. Money of the denomina,tion taken from these machines was found on the person of defendant. The codefendant Bob Haynes admitted this burglary, but denied that defendant was present. He returned to the boxcar where defendant was, but did not mention to- him about the burglary,. On the morning of the 19th of September, 1940, they rode together a freight train into the town of Shattuck. They left the train and went up town and visited a pool hall, drinking beer. The defendant testified that they then made inquiry as- to freight trains passing through the town, and that about 1 or 1:30 he decided he could not catch a train and left his codefeudant and went out on the highway and caught a ride to Rosston, which is about 32 miles from Shattuck.

Haynes testified that about 2:30 he stole the automobile of L. R. Sidders and left there going to Ro-sston where he saw defendant standing by the side of the road and picked him up, and they drove on to Mineóla, Kan., where they stopped at a filling station to have a, tire repaired, and were picked up by the local officers when they could not give explanations about the car in which they were driving, and had no license to drive and could not identify themselves. Bob Haynes claimed that the car belonged to his uncle in Oklahoma and that he had told the defendant this, and the defendant did not know it was stolen. The car was identified as the one stolen from Mr. Sidders of Shattuck, who with the officers of Ellis and Woodward counties went to Mineóla and identified the automobile. Bob Haynes finally admitted to the officers that; he had stolen the car. The defendant was returned to Woodward, and his codefendant was taken to- Ellis county. These charges were afterwards filed in Ellis county.

The evidence revealed that defendant had previously been convicted of burglary and larceny of an automobile. He was sentenced to a term of seven years on the burglary charge but was afterwards pardoned, and served a. two-year sentence in the theft case. His codefendant Bob' Haynes had been convicted and had served sentences in the penitentiary four different times. He had been released from the Texas, penitentiary on the 23rd day of August, 1940. The state also offered in evidence the testimony of Albert Ripple, an automobile salesman, who testified to seeing the defendants together at about 11 a. m. in Shat-tuck on the morning the car was stolen, and again about 1:30 p. m. going toward the sale yards where the car was stolen about 2 or 2:30.

Reinhard Meyer, a, traveling salesman, testified that he met an automobile which he described as the one stolen going north on the highway about eight or ten miles from Shattuck on the date the car was stolen between 2:30 and 3 o’clock p. m., and the car had two' parties in it whom he could not identify.

Sheriff Quickel of Woodward testified the defendant told him on the way back from Kansas that he left Shattuck with his. codefendant Bob Haynes. Mr. Shirley, who¡ owned the cafe that had been burglarized in Woodward, also corroborated the sheriff’s testimony as to this statement by defendant. Further circumstances were testified to which it is: not necessary to mention.

This case was tried without the intervention of a jury. Under the law the findings of the court are as binding as if a jury verdict had been rendered. From the above statement of the. evidence we are of the opinion the court was amply justified in finding the defendant was jointly guilty with his codefendant of the larceny of the automobile as charged. He evidently came to the conclusion that the codefendant Bob Haynes, who testified at the trial, was attempting to assume all the responsibility in an effort to release this defendant. We are of the opinion the evidence justified this belief.

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

JONES, J., concurs.. DOYLE, J„, absent.


author: JONES, J.

text:
    CECIL GRAGG v. STATE.
    No. A-9818.
    June 11, 1941.
    (114 P. 2d 491.)
    Jim Barnett, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Cecil Gragg, was charged in the court of common pleas of Oklahoma county with unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve a term of 30 days in the county jail and to pay a fine of $50, from which judgment and sentence he appeals to this court.

Defendant placed his car in a parking lot in Oklahoma City. Officers procured a John Doe search warrant which described the car by license number. The car was locked when the officers started their search. Upon a threat toi break the door handle, defendant unlocked the car. One quart and 21 pints of whisky were found in the automobile. Defendant admitted to the officers that the whisky belonged to> him.

At the close of the state’s case, counsel for defendant asked that the charge be dismissed for the reason there was no competent evidence to show that defendant was guilty of any offense; that the affidavit and search warrant were illegally issued; that the affiant knew the name of the party upon whom he wished the warrant to be served; and that affiant had no information as to what was contained in the car which he wished to be searched.

Defendant offered no testimony.

The only contention urged upon appeal is that the search and seizure were illegal and for that reason the charge should have been dismissed at the conclusion of the state’s evidence.

No motion toi suppress the evidence was made by defendant. No objection was made to a single question asked by the county attorney in his. presentation of the state’s case. Defendant’s counsel cross-examined officers at length; and it was not until after the state had rested its case that the defendant, through his counsel, moved that the charge be dismissed for the reason there was no competent evidence to show that defendant was guilty of any crime, and argued that the search was illegal.

This court held in Fields v. State, 31 Okla. Cr. 121, 238 P. 633, that if the search is in fact illegal, the accused should make prompt and timely objections to its introduction when the evidence soi obtained is offered.

In Brooks v. State, 32 Okla. Cr. 75, 240 P. 138, it is Stated:

“Objections to the admission of evidence, claimed to have been obtained by an illegal search and seizure, to be available, must be timely.”

In Brooks v. State, 32 Okla. Cr. 72, 240 P. 136, 137, the court said:

“It has been held that to' make such objection available, it must be interposed at the first opportunity presented. * * * It should have been made, either at the beginning! of the trial, by a motion to suppress or reject such evidence, or in the course of the examination, so' soon as it became apparent that the state would rely upon it. Otherwise, defendant waives his right to be heard on this question. '
“A defendant will not be permitted to speculate on the outcome of evidence said to have been procured by an illegal search and seizure, without objection thereto’, and then when it later appears that such evidence operates to his prejudice seek to take advantage of his right to- make such objection for the first time.”

See, also, Rosser v. State, 55 Okla. Cr. 185, 26 P. 2d 769.

Under the holdings, in the above cases, the defendant having waived his right to be heard on the question of the claimed illegal search and seizure, such question is not properly before this court on appeal. We are, therefore, of the opinion that the evidence in this case, admitted without objection by defendant, is sufficient to sustain the conviction.

The case is accordingly affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., absent.


text:
    JOHNNY WHITWELL v. STATE.
    No. A-9819.
    June 11, 1941.
    (114 P. 2d 489.)
    R. K. Robertson, of Sapulpa, for defendant.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Everett S. Collins, Co. Atty., of Sapulpa, for the State.
   BAREFOOT, P. J.

Defendant, Johnny Whitwell, was charged in the superior court of Creek county with the unlawful possession of intoxicating liquor, to wit, three pints of gin and twenty and one-half pints, of tax-paid whisky; was tried, convicted and sentenced to pay a fine of $100 and to serve JO days in the county jail, and has appealed.

For a proper disposal of this case it is only necessary to pass upon two of the errors assigned. They are, first:

“That the court erred as a matter of law and right in denying the defendant the right to have his motion to suppress search warrant and all evidence obtained thereunder to be set for hearing, and the defendant be given an opportunity to present evidence in support of his motion.”

And second:

“That the court erred in giving its instructions to the jury, particularly instructions No. 1, 2, 3, and 4, and all of said instructions when taken as a whole do not correctly state the law of the case and are erroneous.”

On the 22nd day of November, 1939, defendant filed a motion to suppress the evidence on the ground that the search warrant issued was illegal and void and in violation of the constitutional rights of the defendant. On this date, which was the day set for hearing of pleas in criminal cases, counsel for defendant appeared before the court and asked that a time be set for the hearing of said motion, and that he be permitted to offer testimony of witnesses in support thereof. The court upon hearing said request stated:

“By the Court: Let the record show that after* examining the affidavit upon which the motion is based, the ■court finds that the affidavit is good upon its face and shows grounds for the issuing of search warrant, and the court finds that nothing can be gained by the hearing of testimony on said motion, and denies the request.”

It will thus be seen that the court denied the defendant the right to be heard upon the motion to suppress the evidence and an opportunity to offer testimony in support thereof. It will also be noted that the case was- not set-for trial until December 8, 1939, and was tried on that day. The refusal of the court to give the defendant an opportunity to be heard on the motion to suppress the evidence secured by the search warrant and an opportunity to submit evidence in support thereof was, in our opinion, a denial of a substantial right and one that constitutes reversible error. Oklahoma Statutes 1931, section 3235, O. S. A. title 22, see. 1235; Gore v. State, 24 Okla. Cr. 394, 218 P. 545; Terrell et ux. y. State, 43 Okla. Cr. 388, 279 P. 365. See, also, Harkline v. United States, 8 Cir., 4 F.2d 526. Certainly the defendant had a right under the law to submit evidence in support of his motion. This is the very procedure which this court has outlined as the best practice in raising the question of the illegality of a search warrant. The motion was filed 16 days before the case was called for trial. We are of the opinion that the court erred in refusing the request of defendant that he he permitted to introduce evidence in support of his motion to suppress.

The second assignment to be considered is that the court erred in giving certain instructions to the jury. It is unnecessary to fully quote these instructions. The court instructed the jury under Oklahoma Statutes 1931, section 12625, O. S. A., title 37, sec. 32. This section refers to the! possession of more than one gallon of liquor in or about one’s place of residence. This statute is no longer in force and effect, having been superseded by the Session Laws of 1933, chapter 153, sec. 3, O. S. A., title 37, sec. 82. This statute provides the keeping in excess of one quart of intoxicating liquor in or about one’s place of business or residence, or place of amusement or recreation, or any public resort or clubroom, shall be prima facie evidence of an intention to convey, sell or otherwise dispose of such liquors. This law was adopted by a vote of the people of this state at the time of the adoption of the amendment to the Constitution permitting the sale of 3.2 per cent beer, and is now the law. For a full explanation and history of these statutes, see the case of Morse v. State, 63 Okla. Cr. 445, 77 P. 2d 757. The court in his instructions to the jury instructed only upon the question of the possession of liquor and at no place instructed the jury it was necessary to prove in addition to the possession of the same that it should be had for an unlawful purpose. This court has often held that it was necessary to prove that the liquor was had with an intent to sell, barter or give away, or for an unlawful purpose. Possession alone is not sufficient. Smith v. State, 62 Okla. Cr. 33, 69 P.2d 671; Dean v. State, 63 Okla. Cr. 385, 75 P. 2d 900; Stites v. State, 44 Okla. Cr. 92, 279 P. 911; Walton v. State, 53 Okla. Cr. 24, 3 P. 2d 212; Wilson v. State, 11 Okla. Cr. 510, 148 P. 823.

For the reasons above set forth, the judgment of the superior court of Creek county is reversed.

JONES, J., concurs. DOYLE, J., absent.


text:
    LUTHER J. NEMECEK v. STATE.
    No. A-9795.
    June 11, 1941.
    (114 P. 2d 492.)

      Sam S. Gill, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Luther J. Nemecek, was on October 1, 1938, charged in the district court of Oklahoma county with the offense of attempting to' obtain money under false pretenses, was tried, convicted and sentenced to' serve a term of one year in the state penitentiary, from which judgment and sentence he appeals to this court.

On appeal the defendant makes 27 assignments of error; however, this court, finds that it is necessary to consider only one contention of defendant, to wit:

The court erred in overruling defendant’s demurrer to the state’s testimony and in refusing to. direct the jury to return a verdict of not guilty.

The charging part of the information is as follows:

“On the 7th day of August, A. D., 1938, in Oklahoma County, State of Oklahoma Luther J. Nemecek whose more full and correct name is to your informant unknown, then and there being, did then and there Avillfully, unlawfully and feloniously commit the crime of attempting to obtain money under false pretenses in the manner and form as follows to wit: That is to say, tbe said defendant in the county and state aforesaid, and on the day and year aforesaid, then and there being, did then and there willfully, unlawfully, designedly and feloniously attempt to obtain from St. Paul Fire & Marine Insurance Company, a corporation authorized to do business in Oklahoma, ‘¡1600.00 good and lawful money of the United States of America, by means and use of false and fraudulent representations, that is tO' say, the said defendant represented and stated to the said St. Paul Fire & Marine Insurance Company that on August 7, 1938, a certain residence located at 236 Southeast 54th street in Oklahoma County, Oklahoma, was destroyed by fire without the fault or procurement of the said defendant; defendant did then and there represent that as a result of said fire as above described, there was then and there destroyed the following property to wit: One small type Hartford upright piano of the value of f92.50; one Kenmore carpet sweeper of the value of f46.45; and one 9 x 15 Axminister rug of the value of $75.50, all the personal property of the said defendant, then and there insured with the St. Paul Fire & Marine Insurance Company, all of which statement's! by said defendant, as above set out, were made by said' defendant with the intent to obtain $600.00 good and lawful money of the United States of America from the St. -Paul Fire & Marine Insurance Company, and the said defendant was; prevented from obtaining the $600.00 by . reason of the said refusal of the said company to pay said $600.00 to¡ said defendant, upon the discovery that said 'defendant did not then and there possess the above de- ; scribed property at the said address, and the fact that ; said articles were not destroyed by fire, all of which state- - meats were false and untrue, all of which the said defendant well knew, and the said defendant knowingly •made each and all of said false and fraudulent representations with the unlawful, willful, designed, fraudulent and felonious intent to1 cheat and defraud the said St. Paul Fire & Marine Insurance Company of said $600,00 asj aforesaid, contrary to' the form of the statutes in such case made and provided against the peace and dignity of the State of Oklahoma.”

This action was brought under section 2086, O. S. 1931, 21 Okla. St. Ann. § 1541, which in part states:

“Every person who, with intent to cheat and defraud, shall obtain ornffempt to obtain from any * * * corporation, any'money, property, or valuable thing, of the value of [more than] Twenty (f20.00) Dollars * * * by mean.! or by use of any trick or deception, or false or fraudulent representation, or statement or pretense, or by any other means or instrument * * * shall be deemed guilty of a felony and shall be punished by imprisonment in the State Penitentiary, for a term not exceeding seven (7) years, or by a fine not to exceed Five Hundred ($500.00) Dollars, or by both such fine and imprisonment.”

The proof of the state showed that defendant took out a fire insurance policy with the St. Paul Fire & Marine Insurance Company on his household furniture in the sum of $600 on June 25, 1938. That his home was destroyed by fire on August 7, 1938; and he reported the loss by telephone. L. H. Wahl, an adjuster for the company, checked the scene of the fire and asked defendant if he had made up a list of his loss. Defendant said that he had not, but on the next day submitted to Mr. Wahl at his office a claim listing the articles purported to. have been lost in the fire. Defendant stated that the list had been made up with the help of his wife. On this list were the articles claimed to have been burned, their value, and their date of purchase!. Among the many items listed was a piano valued at $92.50, a carpet sweeper valued at ¡$46.45, and a 9 x 12 rug valued at $75.50. Wahl again examined the ruins of defendant’s home and failed to find anything that appeared to be the remains of a piano.. About ten days after the fire, defendant called Mr. Wahl to inquire about his policy and was told that the loss was still being investigated. Some two or three weeks later defendant called again and stated that he was not going to wait much longer; he wanted some action.

Mr. Wahl testified that he did not give the defendant a proof of loss to fill out. That where a claim is submitted, and upon investigation is found to be correct, an agreement is made as to the amount of the loss; that amount is put in a proof of loss, and the list first submitted is used as a supporting paper for the proof of loss. The proof of loss is sworn to by the claimant and acknowledged. No money is paid to the claimant until the proof of loss is sworn to and acknowledged.

The proof of the state further showed that defendant made a sworn statement in the State Fire Marshal’s office that the loss he sustained included a small Hartford piano, which cost either $75 or $95, and he believed he bought it from the O. K. Furniture Co.

In a statement made in the county attorney’s office, defendant at first maintained that the pianoi was burned, then admitted that it was not in the house at the time of the fire. He also admitted that the sweeper was not in the house.

There is no contention by the state that any proof of loss was filled out or that the defendant had received! any of the insurance money.

At the close of the state’s case, defendant’s attorney demurred to the evidence for the reason that it was’ insufficient to establish the crime attempted to be charged, and moved the court to direct the jury to' return a verdict of not guilty, which was overruled by the court.

Section 2243, O. S. 1931, 21 Okla. St. Ann. § 1662, /which states: “Every person who presents * * * any false Í or fraudulent claim * * * upon any contract of insurance, j for the payment of any loss * * * is punishable by im-f prisonment in the penitentiary not exceeding three years, j or by a fine not exceeding one thousand dollars, or both,” was enacted to cover such a situation as is herein set out.'This action properly should have been brought under this ; section; however, the county attorney elected to. attempt ] to make a case under sec. 2086, supra, which carries a j maximum penalty of seven years imprisonment.

Section 10557, O. S. 1931, 36 Okla. St. Ann. § 244, states that the standard form of fire insurance policy shall contain the following language:

“If fire occur the insured shall give immediate notice of any loss thereby in writing to this company, * * * make a complete inventory of the same, stating the quantity and cost of each article and the amount claimed thereon; and within sixty days after the fire * * * shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured, and of all others in the property; the cash value of each item thereof and the amount of loss thereon * *

The defendant in this case gave immediate notice by telephone; the company sent an adjuster to. examine the ruins; defendant filed an inventory which stated the quantity and cost of each article. Further proceedings were stopped by the insurance company. The state proved that defendant had included a.t least two items in the inventory submitted, which he knew had not been destroyed by the fire.

In Ex parte Turner, 3 Okla. Cr. 168, 104 P. 1071, 1073, an attempt to commit a crime is defined as being the compound of two elements: (1) The intent to commit it; and (2) a direct ineffectual act done towards its commission. It is further stated that an attempt is an intended, apparent, unfinished crime. This court went on to say:

“Therefore the acts must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation. It must be not merely preparatory. In other words, while it need not be the last proximate act to the consummation of the offense attempted tO' be perpetrated, it must approach sufficiently near to it to stand either as the first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made.”

The overt act must be something more than mere preparation or planning the crime. It must he something done, some step taken beyond preparation, that directly moves toward the crime and brings the accused nearer to its commission than mere acts of preparation or of planning. It must be such act or acts as will apparently result, in the usual and natural course of events, if not hindered by extraneous causes, in the commission of the crime itself. State v. Thomason, 23 Okla. Cr. 104, 212 P. 1026; Becker v. State, 45 Okla. Cr. 350, 283 P. 796.

In Rhodes v. State, 58' Okla. Cr. 1, 49 P. 2d 226, 231, this court held:

“To constitute the crime of obtaining property under false pretenses the essential elements are: A false statement of past or existing facts by one person to another with intent to defraud; such statement must be reasonably calculated to deceive that other. It must be so designed as to induce such other toi part with his property, and such design must be accomplished, by means of the false pretenses made use of for that purpose.”

It is stated in Smith v. State, 7 Okla. Cr. 136, 122 P. 732:

“While it is not necessary that the false pretenses should be the sole inducement which moved the prosecuting witness to part with his money, it is necessary to show that they materially contributed to' that end, and that without such false pretenses he would not have parted with his money.”

This court said in Taylor v. Territory, 2 Okla. Cr. 1, 99 P. 628, 629:

“To constitute the crime [of obtaining money under false pretenses] under our statute, three things are essential : First, a false representation as to> an existing fact; second, a reliance on that representation as true; and, third, it must be the moving cause which induced the owner to part with his property. * * *
“In order to justify a conviction upon the trial of an indictment for false pretenses;, it must appear that the prosecutor parted with his money by reason of some of the pretenses set forth in the indictment, or, if not solely by reason of such pretenses, that they at least materially influenced his action.”

Before an accused has attempted to obtain money by false pretenses, he must have made a false statement reasonably calculated to deceive another, which statement is so designed as to induce the other to part with his prop-' erty in reliance upon the false statement, and if not hindered by extraneous circumstances accused would have obtained said money from such other person, if not solely by reason of the false pretenses, at least because they would have been the moving cause or a material influence through which he would have received the money.

The state showed that defendant made at least two false statements in the inventory which he submitted, which were calculated to deceive the insurance company. The proof further showed that the fire destroyed all of the household furnishings of the defendant, which were valued far in excess of $600. The inventory filed by the defendant listed their value as $1,591.47. The false items were only a very small part, of the total loss. The state has wholly failed to show that these false items were so designed as to. cause the insurance company to pay to defendant the $600 on his policy on account of them, or that if the company had relied upon them instead of finding them false, that these particular items would have been the moving cause or material influence by which defendant would have collected the money due on the fire insurance policy for the loss of all of his household furniture. It is conceded by the state in their argument, and the proof shows, that regardless of the false items which were included in the inventory filed by the defendant, he had sustained an actual loss in such an amount that he was entitled to recover the $600.

In 22 C. J. S., Criminal Law, § 74, p. 138, it is stated:

“Neither can one be convicted of an attempt to com- - mit a crime unless) he could have been convicted if his attempt had been successful; thus, where the act, if accomplished, would not constitute the crime intended, as a matter of law, then there is no indictable attempt.”

In re Schurman, 40 Kan. 533, 20 P. 277, 282, held:

“With reference to attempt, it has also been said that ‘if all which the accused person intended would, hadi it been done, constitute no substantive crime, it cannot be a. crime, under the name “attempt,” to do, with the same purpose, a part of this, thing.’ ”

So, an accused cannot be found guilty of an attempt i to commit an act which would not have been a crime if j it had been accomplished. It is necessary to have more than a specific intent to- commit a crime. There must be ; an overt act that would, if uninterrupted, amount to the \^first step toward the accomplishment of the crime. The statute under which the charge in this case is brought does not make the intent to obtain money by false pretenses a crime; nor does it make a futile and dishonest gesture, coupled with such intent, a crime. There must, be an overt act, coupled with the intent, thatwilLat least start the consummation of’ a crime. .

The defendant cannot be held on this charge of attempting to obtain money by false pretenses, even though there is evidence showing his dishonesty; and whether or not he acted overtly with criminal intent, the state has wholly failed to show that had defendant collected money on his fire insurance policy he would have been guilty of obtaining money under false pretenses, and thus have been guilty of a crime. **

At the close of the state’s case, the jury should have been instructed to acquit defendant.

In view of the fact that the county attorney may elect to commence a prosecution under section 2243, supra, we feel that it is proper to discuss one other assignment of error made by the defendant in order to prevent a repetition of certain proof introduced by the state, which in case of a conviction might require a reversal on appeal.

Evidence was admitted over objection of defendant to show that in 1937 he had a fire in his home which destroyed certain clothing and furniture to an extent that he collected $300 insurance; that in April, 1938, a 19 months old child of defendant’s was burned to death andl defendant collected $200 insurance; that defendant’s automobile had burned many years before, which was insured; that the defendant was a bigamist and had been involved in other sordid marital affairs.

The court instructed the jury that evidence of other fires and claims by the defendant against insurance companies was to be considered only in the nature of circumstances tending to show a plan or scheme on the part of defendant to instigate or procure fires or collect or attempt to collect insurance, to which instruction the defendant excepted. It is not clear in the record as to why the evidence concerning the marital affairs of the defendant was admitted.

It should be borne in mind that the defendant is charged with the crime of attempting to obtain money by false pretenses. If he had been charged under section 2242, O. S. 1931, 21 Okla. St. Ann. § 1661, which states:' “Any person who willfully burns * * * any property whatever, which is, at the time, insured against loss or damage by fire, * * * with intent to defraud or prejudice the insurer, * * * is punishable by imprisonment in the penitentiary not less than One (1) year, nor more than Five (5) years,,” instead of the false pretenses statute, there would have been some basis for the admission of the testimony as to the other fires and the collection of other insurance for the purpose of showing the criminal intent. Here there is no contention by the state that the defendant had willfully burned his property. The prosecution is based on the theory that he had sustained a loss, but had filed a false claim.

In the first place, the state has wholly failed to prove any other offenses. The proof in connection with the other fire losses was not sufficient in any instance to make a prima facie case of a violation of any law. They were merely circumstances which evidently did nob look suspicious at the time, but which looked suspicious after it became evident that the defendant had falsely reported certain items which be claimed were burned. The facts surrounding the death of defendant’s child were not even suspicious. It isi doubtful if there is a single person who heard the evidence who believed that the defendant had willfully murdered his child in order to secure $200 insurance, which was barely enough to pay burial expenses.

It is our opinion under the record that all of these alleged circumstances are distinct, unrelated, have no connection with this case, and are fatally prejudicial, requiring the defendant to defend on alleged separate and distinct crimes from the one charged. As has been repeatedly said, if the defendant is to be proven guilty, he must be proven guilty by facts concerning the particular offense charged.

The general rule is that, when a defendant is put upon trial for one offense, he should be convicted, if at all, by evidence which shows that he is guilty of that offense alone; and evidence which in any manner shows, or tends to show, that he has committed another crime, wholly independent, even though it be a crime of the same sort, is irrelevant and inadmissible. Miller v. State, 13 Okla. Cr. 176, 163 P. 131, L.R.A. 1917D, 383.

As an exception to this general rule, evidence of other offenses recently committed, similar to that charged, is admissible when it tends to establish a common scheme or plan, embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, or when it shows or tends to show guilty knowledge or intent in the commission of the offense charged. State v. Rule, 11 Okla. Cr. 237, 144 P. 807; Boyer v. State, 68 Okla. Cr. 220, 97 P. 2d 779.

In any prosecution, when the state offers to prove other alleged offenses for the purpose of showing a common scheme, plan or intent, the proof must clearly come within the exception to the general rule; and where they are distinct and unrelated offenses, or remote as to time, an objection by the defendant to this proof should be sustained. Perdue v. State, 40 Okla. Cr. 9, 266 P. 514; Ricker v. State, 39 Okla. Cr. 58, 263 P. 160; Stanfield v. State, 30 Okla. Cr. 82, 235 P. 256.

For the reasons hereinabove stated, the judgment of the district court of Oklahoma county is reversed and remanded with instructions to dismiss.

BAREFOOT, P. J., concurs. DOYLE, J., absent.


author: BAREFOOT, P. J. PER CURIAM.

text:
    WARREN ABBY v. STATE.
    No. A-9817.
    June 11, 1941.
    (114 P. 2d 499.)

      Mitchell & Mitchell, of Clinton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Milton Keen, Co. Atty., of Clinton, for the State.
   BAREFOOT, P. J.

Defendant Warren Abby was charged in the district court of Custer county with the icrime of murder, was tried, convicted and sentenced to be executed, and has appealed.

For reversal of this case it is contended:

First. The court erred in denying the application for a change of venue.

Second. The court erred in overruling plaintiff in error’s motion for a continuance.

Third. The court erred in permitting the introduction of incompetent evidence by the state.

Fourth. The court erred in the instructions to the jury in failing to state the law on the defense interposed and on which evidence was offered.

Fifth. The county attorney was guilty of misconduct in the introduction of incompetent evidence on cross-examination and in his argument to the jury.

Sixth. The verdict of the jury was the result of ■passion and prejudice.

Before reviewing the alleged errors we deem it advisable to give a short, concise statement of the facts as they appear from the 817-page record.

Defendant, Warren Abby, was charged with murdering his wife, Julia Abby, in Custer county, Okla., on the 6th day of October, 1939. A preliminary complaint was filed in the county court of Custer county on the 7th day of October, 1939. An information was filed in the district court on the 11th day of October, 1939, and the defendant was arraigned on the 17th day of October, 1939, and the plea of not guilty entered and the issues settled at that time. The trial was commenced on the 11th day of December, 1939.

The defendant and deceased were residents of the State of Louisiana and were traveling by automobile through Oklahoma to California. The record reveals that defendant was 56 years of age and the deceased, his wife Julia Abby, was 78 years of age. They were secretly married on the 26th day of January, 1936, but did not live together or reveal the same for a period of three years. The defendant remained on his farm in Louisiana and deceased ran her drugstore in Arkansas. They corresponded during this time, and deceased had gone to Louisiana to visit defendant upon several occasions. She had sent him some money from time to time, being the proceeds of the! sale of certain property owned by her in Arkansas. The) defendant was engaged in a co-operative farming scheme in which he was very much interested and was trying to promote, and there could be little doubt that defendant at the time he married deceased thought she owned considerably more property and of greater value than she did.

In September, 1939, she sold her drugstore in Arkansas for the sum of $1,500, $1,000 in cash and a note for $500, and a part of this money, $533.86, was used to pay off a mortgage on the farm of defendant; $260 was paid in the purchase of an automobile in which a car owned by defendant was used in the exchange. This was the automobile they were driving to California at the time of the killing; $180 was used in purchasing travelers checks in defendant’s name to make the trip to California.

Soon after arriving in Louisiana the deceased made a will leaving the balance of her property to the defendant. The defendant at the same time executed a will leaving his property to the deceased. The wills were executed just about a. week prior to her death. Defendant and deceased left Louisiana, traveling to Arkansas to see if they could dispose of other property owned by deceased, a part of which has been known as zinc land and which had been discusteed as having a value of around $10;000, but when they arrived there they found that it was of little value. They also attempted to cash the $500 note, but did not do- sol They proceeded on their way to California, where defendant had formerly lived, and on the evening of October 5th arrived at a tourist camp at Bridgeport, Okla. On the morning of the 6th of October, 1939, they started before daylight toward Clinton on highway No: 66, and the deceased was murdered by defendant by the side of the road about 6 o’clock by striking her on the head and body with an iron rod that had been picked up and placed in the car during the trip. Her body was taken from the automobile and a pool of blood was found! near the car where defendant had struck her with the iron bar after being removed therefrom. An examination revealed that she had been struck at least eight different 'times with the iron bar. After killing deceased, defendant attempted to remove a tire from Ms car with the thought in mind of making up a story, which he after-wards told the officers and others of Custer county, that she had been killed by a hit-and-run truck driver. He immediately placed her body in the car and drove into’ a filling station a,t Clinton, Okla., and asked the attendant for a doctor, telling him that his wife had been struck by a hit-and-run truck driver. He was directed to the hospital, where he took the deceased. His story that she was struck by a hit-and-run truck driver was made to several officers of Custer county.

The officers, upon examination of the car and the location of the blood stains thereon, immediately began an investigation. They proceeded to the place where defendant had told them the accident occurred, and they found there a pool of blood by the side of the road, and about 40 feet northwest from where the car had stopped they found the iron bar with traces of blood and hair thereon. Defendant finally confessed to the officers that his statement was false with reference to her being hit by a hit-and-run truck driver, but that he had struck deceased with the iron bar when she said, “I am going to shoot you.” A pistol was afterwards found in the back part of the car, but defendant admitted that it was his and that she did not have it in her possession at the time that the above statement was made. The pistol was found by the officers under some clothing in the back of the car. She was dead before she reached the hospital.

His defense was self-defense and temporary insanity, claiming that after he struck deceased the first blow everything went black and he did not know what he did during the time she was being struck with the iron bar.

The first assignment of error is that the court erred in denying the application for a change of venue. This was based upon the affidavits of three citizens of Custer county. An elaborate hearing was had by the trial court on this motion, and many affidavits and much evidence was taken at the hearing. The defendant attached three affidavits of citizens of Clinton, Custer county, to his motion, and they were afterwards examined in the presence of the court. The county attorney filed 304 counter affidavits. There were also introduced the clippings of a number of newspapers of Custer county. These newspapers carried stories at the time of the killing. After both sides had introduced much evidence, the court, at the suggestion of the attorney for defendant, on his own responsibility, selected four prominent citizens from different sections of Custer county and had them brought before the court and explained to- them that they had been brought in by the court and not as witnesses for either side. They were questioned by the court and also by each of the attorneys'. The testimony of each was that in their opinion the defendant could have a fair and impartial trial in Custer county. That there did no-t exist in the county any prejudice against the defendant. That there had been the usual talk as occurs when so-me one is killed under such circumstances as this case developed, but at that time there was very little, if any, talk about it. That the fact that neither the defendant nor deceased had ever been residents of Custer county, but were strangers, would in their opinion permit a fair and impartial jury to be secured in the county. The reports from the papers were about the same as generally appear under similar circumstances. In these papers reported statements of the county attorney, officers, and of the defendant himself were all published.

The rule that has been adhered to in this court has been well expressed in the case of Newton v. State, 56 Okla. Cr. 391, 40 P.2d 688, 691, where it is said:

“The presumption is that the defendant can have a fair trial in the county in which the offense was committed and the burden is on a defendant who seeks a change of venue to establish his right thereto. Davis v. State, 53 Okla. Cr. 411, 12 P. 2d 555. In this day of paved highways, the wide use of rural telephones, daily papers; and radio®, the mere fact that the inhabitants of a county have read and heard of the commission of a crime does not disqualify them. To warrant a change of venue, it must be made to appear they have a fixed opinion as to the guilt or innocence of an accused to the extent that an accused cannot have a fair trial by an impartial jury.”

The statute governing an application for change of venue is Oklahoma Statutes 1931, sec. 2905, 22 O. S. A. § 561. It is unnecessary to quote this statute. It provides the manner of making an application for change of venue and provides that counter affidavits may be filed by the county attorney: “* * * to show that the persons ¡making affidavits in support of the application are not credible persons and that the change is not necessary, and may examine the witnesses in support of said application in open court in regard to the truth of said application * * ))

The above statute has been construed by this court in many cases and it has been the universal holding that the granting of a change of venue is, under the statute, a matter resting within the sound discretion of the trial court, and unless it clearly appears that there is an abuse of such discretion, the decision of the trial court will not be reversed for failure to grant a change of venue. Gentry v. State, 11 Okla. Cr. 355, 146 P. 719; Warren v. State, 24 Okla. Cr. 6, 215 P. 635; Jewell v. State, 41 Okla. Cr. 389, 273 P. 366; Huffman v. State, 28 Okla. Cr. 296, 230 P. 272; Quinn v. State, 54 Okla. Cr. 179, 16 P.2d 591. We are of the opinion that the overruling of the motion for change of venue under the circumstances and evidence in this case was not error, and there was no abuse of discretion of the court in overruling the same.

The second assignment of error is that the court erred in overruling defendant’s motion for a continuance. This contention is based upon the court’s ruling in denying an application for appointment of a commissioner to take depositions of nonresident witnesses. As before stated, the defendant was arrested on the 6th day of October, 1939. He was not tried until the 11th day of December, 1939. He was confined in jail during this time, but had employed able counsel, and they had been given the opportunity to> confer with him at any time he desired. The proof showed that he had some funds and had obtained other funds from the sale of property which he owned in California in the sum of $1,000 prior to the date of this trial. The issues in this case were settled on the 17th day of October, 1939. The motion for the appointment of a commissioner to take depositions out of the state was not filed until the 5th day of December, 1939, just six days before this case was set for trial. When the motion was presented it set out wha,t each of the witnesses would testify. The county attorney waived the five days’ notice provided by the statute and filed a response to the motion to which were attached several affidavits. In this response the county attorney agreed that the motion for continuance could be read to the jury and the statements therein considered as evidence in the case. ■This was done. Oklahoma Statutes 1931, sec. 397,12 Okla. St. Ann. § 668. One of the witnesses named was the former wife of defendant who was a resident of the State of California and who appeared at the trial and testified for defendant. The testimony of the other witnesses pertained to matters which did not involve the issue of self-defense or temporary insanity which was urged by defendant. From an. examination of the record, we are of the opinion that the court did not err in overruling the motion for a continuance, and there was no abuse of discretion on his part. Hargis v. State, 33 Okla. Cr. 283, 243 P. 986; Owen v. State, 13 Okla. Cr. 195, 163 P. 548; Ennis v. State, 13 Okla. Cr. 675, 167 P. 229, L.R.A. 1918A, 312.

The Owen Case, 13 Okla. Cr. 195, 163 P. 552, states the true rule that has been followed by this court as follows.:

“No rule is more firmly established in this state than that this, court will not reverse a judgment of the trial court upon the ground that it refused to. grant a continuance unless it appears that such court has manifestly abused its discretion in refusing it. However, it is the/ right of every person accused of crime to have a fair and impartial trial and compulsory process to compel the attendance of his witnesses, and that involves, as a matter of course, the time reasonably necessary to prepare for trial, and to. find and produce testimony in his defense. It is not, howevér, a matter of which the defendant can complain that the trial is speedy, if he has had time for preparation and is ready for his defense. Continuances ought always, to be granted when, from the showing made justice requires it, this to. enable the defendant to procure all legal and competent evidence necessary for the fair presentation of his defense, if he has used due diligence to obtain the same.
“Under our Procedure Criminal the defendant has the right to take the deposition of any material witness residing out of the state, and this only when an issue of fact is joined upon an indictment or information. Section 6036, Rev. Laws [1910], 22 Okla. St. Ann. § 781. The application must be made upon affidavit (section 6038, Rev. Laws [1910], 22 Okla. St. Ann. § 783), and must be upon five days’ notice to the county attorney (section 6039, Rev. Laws- [1910], 22 Okla. St. Ann. § 784). It is further provided that upon a motion for continuance on account of the absence of evidence, if the state will consent that on the trial the facts alleged in the affidavit shall be read and treated as the deposition of the absent witness, no continuance shall be granted on the ground of the absence of such evidence. Section 5045, Rev. Laws [1910], 12 Okla. St. Ann. § 668,.”

In the Hargis Case, 33 Okla. Cr. 283, 243 P. 987, the court says:

“The first error assigned as ground for reversal is that the court erred in overruling the application of defendant for a continuance in order that he might take the deposition of witnesses in the state of Kansas. The evidence of the witnesses whose deposition was sought to be taken is largely cumulative. When the application for continuance was presented, the state agreed that the affidavit be read and used as the deposition of the absent witnesses. Defendant contends that the state should have admitted the statement as true, citing Madison v. State, 6 Okla. Cr. 356, 118 P. 617, Ann. Cas. 1913C, 484. That case sustains the contention of the defendant, but the rule there announced was long since overruled by this court. Owen v. State, 13 Okla. Cr. 195, 163 P. 548; Ennis v. State, 13 Okla. Cr. 675, 167 P. 229, L.R.A. 1918A, 312.” See, also, Sullivan v. State, 41 Okla. Cr. 371, 273 P. 372; Riley v. State, 40 Okla. Cr. 369, 269 P. 377.

The record reveals that an extended hearing was hadi by the court upon the motion for continuance. It is unnecessary to goi into a lengthy discussion of the evidence had on this hearing.. We have carefully examined the same. Most of the witnesses named in the application were for the purpose, of proving the good character and reputation of defendant in locations where he had formerly resided. Only three witnesses were named who would testify to other facts, and they were immaterial and did not refer to the actual killing of the deceased by defendant. As above stated, the county attorney agreed that the statements of what they would testify should be read to the jury and this was permitted by the court.

The contention that defendant had been ill during the time that he was confined in the county jail prior to his trial and was: unable to consult with counsel in order to prepare Ms defense was heard by the court. As previously stated, this killing occurred on October 6, 1939. The case was called at the October term, but was continued and was not actually tried until December 11,1939.

The affidavit of the jailer which was attached to the response filed by the county attorney stated that defendant had been in his custody every day since October 6, 1939, and that he had never been seriously ill for any considerable length of time. That he had, or pretended to have, one or two heart attacks, but had never been confined to his bed at any time. That he had taken him his meals each day and that he had conversed intelligently on business matters. That Ms attorney had been permitted to see him and for the past two or three weeks had seen and talked with him almost daily.

Dr. Paul B. Lingenfelter, a physician at Clinton, examined the defendant on the 6th day of December, 1939. He examined Mm with particular attention to his nervous state, his mental condition, and also his heart and circulatory system. He used proper instruments, methods, and approved tests, and he found no condition existing which would cause the defendant to be unable to' talk intelligently on business or other matters, and found Mm to be in good mental condition. The only evidence offered by the defendant was his own affidavit attached to Ms motion for continuance. Under these circumstances we do not find there was any abuse of discretion on the part of the trial court in overruling defendant’s motion for a continuance.

The third assignment of error is that the court erred in admitting incompetent evidence offered by the state. The record, contains 817 pages. We have never examined a record with as much immaterial matter therein as this one contains. It abounds in evidence and cross-examination of witnesses that is. foreign to the issue involved. This: examination applies to counsel for both the defendant and the state. The direct examination of the defendant was far afield from the issues involved, and the crossi-examination was just as. far. Many voluntary statements were made by the defendant himself. Much of the cross-examination was with reference to these matters. It is •unnecessary to here discuss this evidence. We have carefully examined the record, and find nothing that we consider prejudicial to the substantial rights of defendant. Much of the cross-examination was of the former wife of defendant who testified in his behalf. This was based upon letters written by her, and under the rules of evidence her examination with reference thereto was not improper. The submitting in evidence of a photograph of the deceased was not improper under the law and. facts in the case. Cooper v. State, 61 Okla. Cr. 318, 67 P.2d 981.

The contention that the county attorney was permitted to introduce evidence of other crimes or violations of law is based upon the cross-examination of defendant and his former wife. Counsel for defendant in their direct examination questioned defendant to show that he had never1 been in previous trouble and had never been charged with a crime. The cross-examination was to show the defendant had been charged with different offenses. This is not improper cross-examination under the facts and circumstances of this case. Howard v. State, 67 Okla. Cr. 445, 94 P.2d 947; Starks v. State, 67 Okla. Cr. 156, 93 P.2d 50.

The fourth assignment of error is that the court erred in his instructions to the jury.

In this connection it may be stated that no1 requested instructions were offered by defendant. The defendant claimed self-defense and also' temporary insanity. The court submitted both of these issues to the jury in separate instructions. It is contended by defendant that the court should have given a combination instruction advising the jury that if at the time he struck the first blow the defendant was acting in self-defense and then became temporarily insane and was in such a condition at the time he committed the ensuing acts, he should be acquitted. We know of no law which requires the placing of these two issues: in the same instruction. No authorities are cited in defendant’s brief supporting this contention. As a matter of fact there was little, if any, evidence on the part of defendant to support either of the defenses claimed. Defendant’s evidence was that deceased said, “I am going to shoot you.” But there was no evidence of her committing any overt act to carry out this threat. The law is well established that this will not even mitigate a homicide, to say nothing of constituting a justification thereof. Burks v. State, 64 Okla. Cr. 285, 79 P.2d 619; Moutry v. State, 9 Okla. Cr. 623, 132 P. 915; Betterton v. State, 17 Okla. Cr. 415, 189 P. 760; Fixico v. State, 39 Okla. Cr. 95, 263 P. 171; Edge v. State, 39 Okla. Cr. 277, 264 P. 213; Lee v. State, 33 Okla. Cr. 370, 244 P. 455.

The evidence of temporary insanity was based solely upon the evidence of defendant that, when he picked up the iron bar and struck the deceased the first blow, everything went black, and he did not know what he was doing until the deceased had been dragged from the car and struck at least eight blows. No> medical testimony or any other kind was given as to defendant’s insanity. The court was exceedingly fair in submitting to the jury the question of temporary insanity of the defendant under the facts. Under these facts, it is doubtful if subsequent temporary insanity constituted a defense. However, this issue was submitted to the jury. Sloan v. State, 25 Okla. Cr. 15, 218 P. 717; Hopkins v. State, 4 Okla. Cr. 194, 108 P. 420, 111 P. 947; Turner v. State, 43 Okla, Cr. 380, 279 P. 525; Culpepper v. State, 4 Okla. Cr. 103, 111 P. 679, 31 L.R.A., N.S., 1166, 140 Am. St. Rep. 668; Adair v. State, 6 Okla. Cr. 284, 118 P. 416, 44 L.R.A., N.S., 119; Roe v. State, 17 Okla. Cr. 587, 191 P. 1048; Cunningham, v. State, 70 Okla. Cr. 131, 105 P.2d 264; Ex parte Gilbert 71 Okla. Cr. 268, 111 P.2d 205, and cases cited.

We do not deem it necessary to take up each individual instruction given by the court. We have examined the instructions carefully and they fairly state the law, as applied to the facts. We find no instruction that prejudiced the defendant or took from him any of his constitutional or statutory rights. On the other hand, they were very fair to him.

The fifth assignment of error is that the county attorney was guilty of misconduct in the introduction of incompetent evidence on cross-examination and in his closing argument to the jury.

We have heretofore referred to the first part of this assignment of error in disposing of the third assignment of error. We have carefully read the closing argument of the county attorney, which is included in the case-made. We find no part of this argument which was in any way prejudicial to the rights of the defendant, nothing that was calculated to inflame the jury or to prejudice his rights. It was strong and forceful, but he was clearly within his rights as a representative of the state. We find no part of the argument that would come within the rule announced in the cases from this court cited by defendant, and that have been reversed for improper remarks of the county attorney. Sweet v. State, 68 Okla. Cr. 44, 95 P.2d 242; Williams v. State, 4 Okla. Cr. 523, 114 P. 1114; Morgan v. State, 9 Okla. Cr. 22, 130 P. 522.

The sixth assignment of error is that the verdict of the jury was the result of passion and prejudice.

We have heretofore given a short statement of the facts in this case. It is unnecessary to give a fuller discussion thereof. The defendant met the deceased by means of a matrimonial advertisement placed in newspapers. He was at the same time in correspondence with other women looking toward marriage. He had visions of establishing a co-operative farming scheme. From the evidence the jury was justified in finding that his marriage to deceased was because he believed she had valuable property and that the proceeds of this property could be used by him in carrying out his co-operative farming scheme. When she. came to live with him he. learned that the value of this property was very small. Within a week’s time the trip to California had been! ■started, and coming through the State of Arkansas where deceased had formerly lived, he found that the land which she owned was not valuable for zinc purposes as he thought, and he became mad, as he testified, and began to talk to deceased about a divorce. They had not traveled far into Oklahoma until the old woman, 78 years of age, was killed, by his striking her with an iron bar that had been placed in the car somewhere on the trip. She was then dragged from the car and struck at least eight times. These wounds were sufficient to cause death. Her skull was fractured in two places. There was nothing to show that the killing of deceased was in self-defense, and defendant’s statement that everything went black when he struck her the first time, and that he was temporarily insane, is not borne out by the facts immediately following her death. He at once began the preparation of a defense, attempting to fix a tire on his car when nothing was wrong with it, telling a story that she had been hit by a hit-and-run truck driver, and when finally confronted with the stern facts, he immediately confessed that he had killed the deceased. We do not see how it-can be said that, under these facts, the jury acted with passion and prejudice in returning, a verdict of guilty of murder and assessing the death penalty.

These jurors had never seen or heard of either defendant or deceased. They were not residents of Custer county or of the State of Oklahoma. There was no reason for passion or prejudice. They came to- the conclusion, after a careful consideration of the evidence, that the defendant had rightfully forfeited his right to live under the law of the land, and returned a verdict finding him guilty of murder and assessing the death penalty. The jury no- doubt came to the conclusion that this defendant had decided to- get rid of his wife, either before he left Louisiana or Arkansas for California. The execution of the will just one week before she was killed, the disappointment in the value of her property, the securing of the iron bar with which she was killed and the placing o-f the same so- it could be easily secured, the manner of the killing and the attempt to- fabricate a defense by saying that she had been struck by a hit-and-run truck driver, all reveal a well-laid plan and scheme on the part of defendant, and was “with a premeditated design to effect the death” of this old woman 78 years of age, whom he had married, not for the purpose of love and protection, but for the unholy purpose of -securing her few worldly possessions-.

This court under the law has the right to- modify a judgment inflicting -the death penalty for murder to imprisonment at hard, labor for life when deemed proper in the furtherance of justice. Commutation can be granted only by the Chief Executive of the state, and is granted as a matter of clemency. The judicial power to modify a judgment and sentence and the executive power to pardon, parole, or commute are wholly distinct in their nature. The one is an award of justice and the other is an act of grace. Commutation is a matter of discretion and may be refused. Justice is imperative, and must not be denied.

In the. case of Fritz v. State, 8 Okla. Cr. 342, 128 P. 170, 177, this court says:

“We think that capital punishment, at the discretion of the jury, as the penalty of murder, is essential to the security of society * * If capital punishment should be abolished without some limitation of the pardoning power in convictions of murder and manslaughter, * * * it cannot be doubted that convictions of murder and manslaughter in this state would then in many cases be but a mere mockery of law and justice.” Mannon v. State, 68 Okla. Cr. 267, 98 P.2d 73; Sands v. State, 61 Okla. Cr. 206, 67 P.2d 62.

We have carefully examined the record and find that defendant has been given a fair and impartial trial under the Constitution and laws of this state. He has been ably defended, and we find no legal reason for interfering with the judgment and sentence of the district court of Custer county, and it is therefore affirmed.

The time originally appointed for the execution of Warren Abby having passed pending this appeal, it is ordered, adjudged and decreed by this court that the judgment and sentence of the district court of Custer county be carried out by the electrocution of the defendant, Warren Abby, by the warden of the State Penitentiary, at McAlester, Oklahoma, on Friday, the 29th day of August, 1941.

On rehearing July 23, 1941.

JONES and DOYLE, JJ., concur.

Rehearing denied.

PER CURIAM.

A petition for rehearing was filed in the above case in the time provided by law, and the same was granted by reason of the importance of this decision. Oral argument was permitted and had thereon.

We have again reviewed the evidence and the legal questions presented and can see no reason for modifying the opinion heretofore rendered. The defendant was accorded every right to which he was entitled under the Constitution and laws of this state.

It is therefore ordered that the petition for rehearing, be overruled and that the judgment and sentence be carried out as provided in the original opinion heretofore filed.