author: DOYLE, P. J.

text:
    JIM WILSON v. STATE.
    No. A—3412.
    Opinion Filed Sept. 8, 1919.
    (183 Pac. 613.)
    (Syllabus.)
    1. JURY — Challenge to Panel — Specification of Objection. A challenge to a panel of jurors, summoned upon an open venire, on the ground “of a material department from the forms prescribed by law in respect to the selection, drawing, and returtn of said panel, from which the defendant has suffered material prejudice, and that said panel of jurors is not a fair and impartial panel,” was properly denied, because it did not specify the facts, if any, showing how or in what manner the panel was not summoned as prescribed by law.
    2. SAME — Statutory Form. Under section 5843, Rev. Laws 1910, a challenge to the panel must be taken before the jury is sworn, and must be in writing, specifying plainly and distinctly the facts constituting the grounds of challenge.
    3. SAME — Bias of Officer. Under section 5848, Rev. Laws 1910, a challenge to a panel of jurors summoned upon an open venire, on account of any bias of the officer who summoned them, must be made in tbe same form) and determined in tbe same manner as if made to a juror.
    4. EVIDENCE — “Confession.” In criminal law a confession is a voluntary statement mad'e by a person charged with the commission of a crime, wherein he acknowledges himself to be guilty of the offense charged, and discloses the circumstances of the act, or the share and participation which he had in it.
    5. SAME — “Confession”—Scope. A “confession,” in a legal sense-is restricted1 to an acknowledgment of guilt made by a person after an offense has been committed, and does not apply to a mere statement or declaration of an independant fact from which such guilt may be inferred.
    6. SAME — Voluntary Confession — Admissibility. A statement, declaration, or admission made by one accused of crime, explaining suspicious circumstances for his own defense, from which the jury may or may not infer guilt, is not a confession, and does not come within the rule that confessions must be voluntary to to be admissible.
    7. EVIDENCE — Explanation of Incriminating Circumstances — Contradiction. Statements of a person accused of murder, in giving an account of himself, or of the homicide, which tend to explain incriminating circumstances brought against hin^, are admissible’, and may be proved false by the prosecution after it has proved that accused mad’e them.
    8. APPEAL AND ERROR — Reversible Error — Statute. Under Code of Criminal procedure (sec.-6005, Rev. Laws! 1910), providing that no judgment shall be set asidje or new (trial granted Ion the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to errors in any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right, this court is necessarily vested with a large discretion in determining the effect of errors, and' each case must depend upon its own circumstances, since it is the opinion of the court, upon a full consideration of the particular record, including the evidence, that is to control upon the question whether the error complained of has resulted in a miscarriage of justice.
    9. APPEAL AND ERROR — Improper Remark by Court — Reversible Error. An improper remark by the court while ruling on an objection to the testimony of a witness for defendant, which was in effect a comment on the weight of the evidence, is not ground for reversal where the court subsequently instructs the jury to disregard the same, and where this court, from an examination of the whole case, finds that the proof of defendant’s guilt is practically undisputed.
    Conceding that some of the rulings of*the trial court were erroneous, they affect no substantial right of the defendant, and
    10. APPEAL, AND ERROR — Harmless Error — Rulings of Trial Court. under section 6005, Code of Criminal Procedure (Rev. Laws 1910), they must be regarded as technical, and insufficient to warrant a reversal of the judgment of conviction.
    11. HOMICIDE — Sufficiency of Evidence — Sentence. The evidence in a homicide case examined, and held sufficient to warrant a verdict convicting the defendant of murder, but insufficient to warrant the extremle penalty of the law, and the judgment and sentence is modified to imprisonment for life at hard labor.

      Appeal from District Court, Carter County; W. F. Freeman, Judge.

      Jim Wilson was convicted of murder and appeals.
    Modified and affirmed.

      John L. Hodge, for plaintiff in error.

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

This is an appeal from a conviction of murder and judgment and sentence of death. The information charged that Jim Wilson did, in Carter county, on or about the 2d day of April, 1918, kill and murder one Oscar Kyle by striking and beating him on the head with an iron bolt, thereby inflicting a mortal wound. On May 24, 1918, in pursuance of the verdict of the jury, he was sentenced to suffer death by electrocution as provided by law.

On behalf of plaintiff in error it is argued that the evidence does not justify the verdict rendered, and that errors were committed upon the trial which require a reversal of the judgment and the ordering .of a new trial.

The foundation of the case against defendant rests in his admissions to certain persons and his so-called “confession,” testified to by the arresting officers as having been made to them within 24 hours of the homicide.

Defendant did not testify in the presence of the jury, as a witness in his own 'behalf, but offered testimony relative to threats against him made by the deceased, and testimony showing the finding of a knife and stick on the scene of the homicide the following morning, and submitted his case on the theory of self-defense.

The first alleged error is in overruling defendant’s motion for a continuance.

The case came on for trial on May 20th, and defendant filed his verified motion for a continuance on the ground of the absence of Oscar Vestal, a material witness. In defendant’s affidavit he states:

“The said Oscar Vestal, if present, would swear that the deceased, Oscar Kyle, tried to get him, the said Vestal, to decoy the defendant, Jim Wilson, off to what is commonly called the ‘Reservation,’ the same being a resort for the purpose of prostitution in and near the city of Ardmore, and give him, the said Kyle, an opportunity to kill said defendant; that he conveyed this intelligence to said defendant; that affiant believes said evidence to be true, and that thé same cannot be furnished by no other witness; that on the 6th day of May he caused a subpoena to issue for Oscar Vestal; a copy of the subpoena, with the return thereon, is attached to, and made a part of, the application. The return is as follows: ‘Received this writ this' 6th day of May. I cannot find the within named Oscar Vestal within my county. Hugh Brown, Sheriff.’ The subpoena and return was filed with the court clerk on the 9th day of May. Affiant further states that his attorney examined said return after the same filed, and thought the said Oscar Vestal had been duly served, and continued so to think until the witnesses in the case were called and the said Oscar Vestal did not appear.”

The motion for continuance was properly denied on the showing made, for want of due diligence.

The second assignment of error is that the court erred in overruling defendant’s challenge to the jury panel.

The record shows that after the jury had been selected, but before being sworn to try the case, the defendant filed a challenge as follows:

‘‘Comes now Jim Wilson, defendant in the above-entitled cause, and presents this his challenge to the panel of the jury for material departure of the forms prescribed by law in respect to the selection, drawing, and returning of said panel, from which defendant has suffered material prejudice, and alleges that, although the court directed the sheriff to summon talesmen from the body of the county, the talesmen actually summoned and returned for said panel were nearly all from the city of Ardmore; that, of the panel of sixty-two jurors who appeared for examination touching their qualifications to sit in said cause, fifty-one of the number actually resided in the city of Ard-more, the very scene of the alleged murder. Wherefore defendant charges that said panel of jurors is not a fair and impartial panel, which the law guarantees in such cases; and therefore prays the court that his challenge to said panel be allowed, and said jury be discharged as to this case.
“The court: I presume there will be no dispute on the venire summoned of the proportion that reside in Ardmore.
“The County Attorney: The court will presume that the sheriff made no discrimination and summoned these tales-men from the citizenship of the county as he found them. In addition to this, the court has carefully excused every man summoned in this case who admitted that he had any kind of impression touching, the guilt or innocence of this defendant. .
“The Court: The challenge is overruled.”

Our Code of Criminal Procedure provides that a challenge to the panel can be founded only on a material departure from the forms prescribed 'by law, from which the defendant has suffered material prejudice. Section 5842, Rev. Laws 1910.

And that “a challenge to the panel must be taken before a jury is sworn, and must be in writing, specifying plainly and distinctly the facts constituting the ground of challenge.” Section 5843, Rev. Laws 1910.

So far as, the record shows, the procedure in impaneling the jury was in the manner prescribed by law, and there is nothing to show that defendant exhausted his peremptory challenges, or that an objectionable juror was forced upon him.

Our Code further provides:

“When the panel is formed from persons whose names are' not drawn as jurors, a challenge may be taken to the panel on account of any bias of the officer who summoned them, which would be good ground of challenge to a juror. Such challenge must be made in the same form, and determined in the same manner as if, made to a juror.” Section 5848, Rev. Laws 1910.

The record discloses that the challenge to the panel was not founded on the bias of the officer who summoned them. The challenge was properly denied because it stated a mere conclusion, and no fact showing how or in what manner the venire was illegally selected. The mere unsupported assertion that the panel of jurors is not fair and impartial was not sufficient to warrant the court in discharging the jury.

The fourth assignment is that the court erred in admitting, over the objections of defendant, irrelevant, incompetent, and immaterial testimony, all of which was prejudicial to the rights of this defendant.

It appears that numerous objections were made, and exceptions taken, during the course of the trial to the admission of evidence bearing upon the issues in the case.

Several errors are assigned on the admission of defendant’s alleged confessions and admissions, on the ground that the same were not voluntarily made.

It appears from the record that sufficient proof of the corpus delicti was made to justify the admission of a confession.

It appears from the evidence that Oscar Kyle, the deceased, and defendant, Wilson, were both laboring men, and resided in the city of Ardmore. Defendant had been employed as car inspector for about a year in the Santa Fe yards of said city. The deceased had a family, consisting of a wife and three small children. Defendant was a single man, boarding and rooming at the time with the deceased and his family. About 9 o’clock on the night of April 2, 1918, the deceased was found between the depot and the roundhouse of the Ringling Railroad lying between the main track and the north siding, near “H” street, in the city of Ardmore, in an unconscious and dying condition. He had several wounds about the head and face, and remained unconscious until his death, five or six hours later. Harvey Lee and defendant, Wilson, were arrested the next morning, and both stated to the officers that they were out to Whitington Park with two women from 8 until 11 o’clock the evening 'before. The last time the deceased was seen before the assault was about 8 o’clock that evening, when he was seen talking with defendant near the Santa Fe station.

L. T. Evans testified:

That he was car inspector for the Santa Fe Railway, working with defendant; that the morning following the homicide they were working together, “and I said, ‘Jim, what in the world you reckon that fellow was doing out there last night to get killed with a train?’ He says, ‘The train didn’t kill him.’ I says, ‘What the devil done it then ?’ He says, ‘Somebody beat him to death, somebody hit him all about the head, the back of the head, the front of the head, and in the mouth with a bolt with the head on it.’ I asked him how he knew they hit him with a bolt with the head on it. He said, ‘There was the print of it.’ Pretty soon he looked up and saw an automobile coming, and says, ‘There comes the law; I believe they are after me’.”

Sheriff Garrett, Policeman Chancellor, and another man were in the automobile. They stopped and arrested him.

The alleged confession of the defendant was made to the sheriff, Buck Garrett. Sherriff Garrett testified:

“I was looking for defendant, and went through the Santa Fe yards, met him, and said, 'Jim, I will have to hold you for an investigation for this killing.’ He replied, ‘All right, Buck; I can prove where I was last night.’ We went to the county attorney’s office, and there he stated, in the presence of Jim Chancellor and Jim Dustin, that he was at Whitington Park the night before from 8 until 11 o’clock; that Harvey Lee and a couple of girls were with him, and he left them and came to town to get some tobacco; that one of the women was Mrs. Ruby Rutledge. I locked him up in jail, and talked with Harvey Lee, and then went and talked with Mrs. Ruby Rutledge and Mrs. Britton. Then I went back to the jail, and again talked with Harvey Lee. I then had a talk with defendant, and told him what Mrs. Britton and Mrs. Rutledge had said. The defendant’s statement to me was voluntary, absolutely. I said, ‘Jim, somebody has lied about this; you might as well tell me about it.’ He said, ‘If I tell you about it you will go on the witness stand and swear it.’ I says, fSure I would, whether it was for or against you; I would have to do that.’ He said he had gotten with Harvey Lee -and went to Oscar Kyle’s house, and they came up to the Penington grocery, and stopped there a while, and went up to the Santa Fe station; that Lee told him that he had an appointment with some girls in South Ardmore; tha,t he went up Main street and met Oscar Kyle up there. That Oscar asked him, ‘What are you doing?’ and he said, ‘Loafing around,’ and Oscar said, T got a date with a couple of girls out in the West Ardmore; come and go with me.’ He told him, ‘All right;’ and they started, and he described the place where Kyle was found. He said he asked Kyle, ‘Where are those girls?’ and Kyle said, ‘Do you know where the tank is beyond the roundhouse?’ and he said, ‘Yes;’ and Kyle said ‘They are there.’ He said, T am not going out there,’ and Kyle says, ‘The hell you ain’t; what is the matter with you?’ and Kyle made at him with something bright in one hand and a stick in the other, and Kyle hit him, and he struck Kyle about three times. I asked him, ‘Jim, what did you hit Kyle with?’ He said, ‘An iron bolt; I can’t tell you, but I can show you.’ Then with Jim Chancellor, and defendant, I drove out there, and defend- and got out of the car, looked around, and picked up an iron bolt and said, ‘Here it is.’ That he examined it, and there was blood on one corner of the bolt, and some hair was on the end of the tap. Witness produced a bolt fifteen inches long and one inch in diameter.
“Cross-Examination: Q. I will ask you if you didn’t tell him at that time, ‘You had just as well sit down and tell me, maybe I can help you out.’ A. I did not. I says, ‘Jim, you had better tell me about this.’ He says, ‘If I do, you will go on the stand and swear it.’ I says, ‘Certainly I would, whether it is for or against you.’ Q. Didn’t you tell him at that time that you would be a help to him? A. No; I didn’t at that time. After the conversation was over I says, ‘Jim, I am sorry for you; I hope I can do something for you.’ Q. Have you in your possession the knife and stick found near the scene of the homicide? A. I have a knife and stick that is said to have been found there. Q. Who turned them over? A. Mr. Price, a policeman for the Ringling Company, gave them to me.”

Jim Chancellor testified that there was no promise made nor threat used to extort the confession, and defendant’s going to the scene of the tragedy was at his own request and a voluntary act on his part.

On request of counsel for defendant the court directed the jury to retire. Thereupon defendant, as a witness in his own behalf, testified, in substance, as follows:

“ When the sheriff arrested me he told me he was holding me pending an investigation of this killing. The county attorney, Jim Dustin, and Jim Chancellor were present. Harvey Lee was arrested also,. Sheriff Garrett put me in the south room, upstairs. A little later he came in there and said somebody had lied about it in the statements that Harvey Lee and I had made and these women. He said, ‘Harvey Lee had changed his statement, and I might as well tell the truth; that it looked like that it was a framed-up piece of business.’ I told him that I would like to have my uncle from Ft. Worth, who is a lawyer, and one from McKinney phoned for. He said he would put in a telegram for him and I might as well go ahead and tell the truth about it at that time; that he would keep the telegram in and get my uncle.” He was then asked: “What caused you to make any statement? A. I thought from what he said and everything that he was a friend of mine and would help me as he said he would. He had favored me in the case before. Q. Did you up to that time want to make any statement at all? A. No, sir; I did not want to make any statement at all until I had seen an attorney. Q. Yiou were placed in jail before that as a result of an Indian being killed down here on the track? (Objection sustained.)”

The admissibility of a confession, where it is challenged, is a question for the trial court. The court must decide, in the first instance, whether the evidence of the corpus delicti is prima facie sufficient to permit evidence of a confession to go to the jury, and it is for the trial court to determine whether the confession was voluntarily made and is therefore admissible as evidence.

In Berry v. State, 4 Okla. Cr. 202, 111 Pac. 676, 81 L. R. A. (N. S.) 849, it is said:

“Primarily there are two facts which render a confession inadmissible: First, that it was obtained under any form of compulsion, so that to receive it in evidence would violate the defendant’s constitutional privilege against self-incrimination; and, second, that it was made under such circumstances of hope or fear as to create a fair probability of its testimonial untrustworthiness; and while the greater number of cases hold the contrary, yet we think the proper rule is that, in the absence of a statute governing the matter, prima facie any confession is admissible in evidence; and, where its admissibility is challenged by the defendant, the burden is on him to show that it was procured by such means or under such circumstances as to bring it within one of the other of the condition's; stated, unless there is something in the confession itself or the other evidence on the part of the state which shows that it is inadmissible.”

And Prof. Wigmore says that this is the practical and natural rule, “for, if there is any reason to object to the confession, no one can know it better than the defendant.” He says further:

“Looking at the general principles of admissibility and the comparative rarity of untrustworthy confessions, as well as the contingent nature of the dangers supposed to 'flow from improper inducements, the more practical rule would 'be to receive confessions without question, unless they are shown to have been improperly induced, especially since a contrary rule may involve the difficulty of proving a negative.” Wigmo're on Evience, vol. 1, sec. 360.

In Anderson v. State, 8 Okla. Cr. 90, 126 Pac. 840, Ann. Cas. 1914C, 314, it is held:

“The fact that a prisoner may be under arrest and in jail and was not warned that any statement made by him might be used against him, will not in any manner affect the admissibility of any voluntary statement made by him which would otherwise be- competent.”

His counsel contends that defendant’s statements as made to the officers were confessions induced by some hope or promise of a benefit, and were therefore not voluntary.

Upon a careful examination, we think it sufficiently appears that defendant’s admissions and declarations were properly admitted. The mere fact that defendant testified that he made the statements because he thought that the sheriff was his friend and would help him did not overcome the prima facie case and the testimony of the officers. All safeguards thrown around confessions by the law are to insure the truth, and it is not disputed that the defendant’s alleged confession was true, and he did not offer himself as a witness, or any other testimony before the jury to show that his statements had been obtained by duress, inducement, or undue persuasion. We are inclined to think, also, that the admissibility of defendant’s statements does not depend upon the fact that they were voluntary. Strictly construed, instead of being confessions of guilt of the crime charged, they are explanations of incriminating circumstances against defendant.

In criminal law a confession is a voluntary statement made by a person charged with the commission of a crime communicated to another person, wherein he acknowledges himself to be guilty of the offense charged, and discloses the circumstances of the act, or the share and participation which he had in it. See Black, Law Diet.

In the casje of State v. Reinhart, 26 Or. 466, 38 Pac. 822, it was said:

“A ‘confession,’ in a legal sense, is restricted to an acknowledgment of guilt made by a person after an offense has been committed, and does not apply to a mere statement or declaration of an independent fact from which such guilt may be inferred.”

In State v. Campbell, 73 Kan. 688, 85 Pac. 784, 9 L. R. A. (N. S.) 533, 9 Ann. Cas. 1203, it was said:

“Voluntary statements of fact made by a defendant in a criminal action, which do not tend to'"establish his guilt, but which are exculpatory in their nature, are competent evidence against him as admissions of a party.”

Abbott in his Criminal Trial Brief, sec. 481, says:

“A declaration made by one accused of crime, denying any criminal act, and explaining suspicious circumstances for his own defense, is not a confession, and does not come within the rule that confessions must be voluntary to be admissible.”

And again (section 513) the author says:

“Evidence of falsehood on the part of the accused in giving an account of himself, or of the transaction, or his relation to it, is competent as affording legitimate presumption of guilt. For this purpose the prosecution may prove sudi declarations of the accused, and then prove their falsity.”

In State v. Royce, 38 Wash. 111, 80 Pac. 268, 3 Ann. Cas. 351, it was said:

“In a criminal prosecution statements made by the accused to police officers before he had been charged with any crime, and not resulting from threats made or inducements held out by the officers, are admissible in evidence.”

A statement, declaration, or admission made by one accused of crime, explaining suspicious circumstances, for his own defense, from which the jury may or may not infer guilt, is not a confession, and does not come within the rule that confessions must be voluntary to be admissible. It would appear that defendant’s purpose in all his statements was not to inculpate himself, but exculpate, himself. He made the statements, not for the purpose of conceding that he was guilty of murder, or with any view to confess his guilt, but in the line of denial of guilt — not an express, but an implied denial. His statements constituted the basis of the defense made. '

Several witnesses testified that the deceased had made threats against defendant’s life. The only evidence tending to show an overt act on the part of the deceased is defendant’s statements. Without this evidence the testimony tending to show that the deceased had made threats against the defendant’s life was inadmissible.

It follows that defendant’s .statements to the officers were properly admitted.

Objection was taken to a question and the answer of Mrs. Kyle, the first witness for the state, upon her redirect examination. On her cross-examination she was asked and against the abjections of the county attorney testified that her husband often abused her, and that defendant at such times would interfere to prevent it, and for this reason her husband had several times threatened to kill him, and at one time assaulted him with a knife; that on April 2nd, after supper, she heard her husband say that he would kill some one who said something about his questionnaire, and from what he said she knew he meant Jim Wilson.

Her redirect examination was as follows:

“Q. You say this trouble was over Mr. Kyle’s questionnaire? A. Yes, sir.
“Q. Isn’t it a fact that at the time your husband had a "controversy with this defendant in your presence and accused this defendant of going before the board and putting him in class 1? A. My husband said that Mr. Wilson had tried to get him in class 1.
“Q. Isn’t it a fact when this defendant was away from here if you and him didn’t have long-distant telephone calls ? A. No, sir; I didn’t. Two parties told me about that, and it was a falsehood.
“Q. At the time you heard about this long-distance call where was the defendant? A. At McAlester, I reckon.
“Q. What was he doing? A. In the penitentiary, I suppose.
“Mr. Hodge, Counsel for the defendant: We object to that.
“The Court: That is not a part of the proof in this case; gentlemen of the jury, you will disregard it. You cannot assail the character of the defendant until he puts it in issue; you will disregard all that.”

The testimony having been invited by improper cross-examination, and having been properly withdrawn, it affords no grounds for a new trial.

The next serious contention is that certain remarks of the court during the progress of the trial and in the presence of the jury prevented a fair and impartial trial.

It appears that when L. T. Price, a witness for the defendant, was on the stand the following proceedings were had:

“Q. State whether there upon the scene of the homicide any weapons were found.
“The County Attorney: Objected to as incompetent, irrelevant, and immaterial.
“The Court: What time was this — how long after the homicide?
“The County Attorney: From 10 o’clock one evening until 10 the next morning.
“The Court: Other witnesses have testified about going upon the scene and making an investigation. The objection is sustained.
“Mr. Hodge: Save our exception. Does the court rule that we can’t show that weapons were found there at the time this man visited the scene of the homicide, 10 o’clock the next day?
“The Court: I withdraw the ruling so far as finding weapon's are concerned.
“A. Well, there was a piece of broomstick there and a knife.
“The Court: Did you find that stuff then?
“A. Well; no, sir.
“The County Attorney: We object and ask that his testimony be excluded.
“By Mr. Hodge: Did you see that weapon picked up there ?
“A. Well, now, I can’t tell you.
■ “The Court: That is 9 o’clock the next day, after several have testified about going on the ground. I am going to sustain the objection. Several witnesses have testified about going on the ground where these things were supposed to have been found, and failed to find anything before this man was there.
“Mr. Hodge: We save an exception to the ruling and the remarks of the court relative to what other witnesses have testified concerning any searches made.
“The jury are the sole judges of the testimony, if there is such testimony, you know whether there is or not.”

Pender Standfield, a witness for the defendant, testified he was upon the scene of the homicide about 10 o’clock the next day, and was asked:

“Q. Hid you see any weapons picked up there on the scene of the homicide at the time?
“The County Attorney: Same objection.
“The Court: Is that the weapons you were asking about a while ago?
“Mr. Hodge: Yes, sir.
“The Court: The objection is sustained.
“Mr. Hodge: Save us an exception.
“The Court: I am going to withdraw that ruling, you let the testimony in, and give the defendant the benefit of the doubt.”

Thereupon the witness Price was recalled, and asked to state if he saw these weapons picked up:

“The Court: I think I should explain to the jury when this question was asked a while ago the court sustained the objection of the state; after a further consideration of the matter, the court withdraws his ruling, and now permits this testimony.” .

Witness Price then testified that when he was there a negro told him that he had picked up the knife and stick.

Witness Standfield, recalled, testified that he was present when Tom McKinney picked up a knife and a stick there.

Tom McKinney testified that the next morning about 10 o’clock he picked up the, knife and the stick about 30 feet from where the killing occurred.

Obviously, the first objection interposed was properly sustained; However, the remarks of the court were wholly improper and uncalled for. It was for the court to pass upon the admissibility of the testimony, but it was exclusively the province of the jury to pass upon the credibility of the,evidence adduced, uninfluenced by the trial court as to its weight or credibility. The remark of the court that “several witnesses have testified 'about going on the ground where these things are supposed to have been found, and failed to find anything, before this man was there,” was clearly a comment on the weight of the evidence. The court attempted to correct the error by observing, “The jury are the sole judges of the testimony; if there is such testimony, you know whether there is or not;” and by giving the following instructions, “You are the sole judges of the facts proven, the weight and, value of the evidence,- and of the credibility of the witnesses.” There is no question about the fact that defendant killed the deceased and the evidence abundantly sustains the verdict finding defendant guilty of murder. This being so, ought we to set aside the judgment and grant a new trial merely for this remark? Our Code of Procedure Criminal (section 6005, Kev. Laws 1910) provides no judgment shall be set aside or new trial granted on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage, of justice, or constitutes a substantial violation of a constitutional or statutory right.

By this provision this court is forbidden to reverse á judgment of conviction for error, unless, after an examination of the entire record, it is of the opinion that the error has probably resulted in a miscarriage of justice. It thus makes it the duty of this court in considering the questions of law presented to examine the entire record, including the evidence. It follows that this court is necessarily vested with a large discretion in determining the effect of errors, and each case must depend upon its own circumstances, since it is the opinion of the court, upon a full consideration of the particular record, including the evidence, that is to control upon the question whether the error complained of has resulted in a miscarriage of justice.

There is no question about the fact that defendant killed the deceased, and the evidence of deliberation and premeditation, independently of the undisputed' facts and circumstances, shows that on the evening of the tragedy defendant met witness Crowley near the Busy-Bee restaurant, and said to him, “I know where we can get a hundred dollars by killing a son of a bitch,” and Crowley said, “Couldn’t we get the money any other way”; and defendant said, “No, I would not undertake it any other way without killing him.” Crowley said, “Who is it?” Defendant said, “I won’t call any names; he is a working son of a bitch who always carries a hundred.”

That the killing was deliberate is established by the evidence beyond a doubt, and, upon the evidence, it seems to us that the conviction was at all events inevitable. After a most careful examination of the record we are satisfied that the remarks of the judge did not constitute error requiring a'reversal of 'the case.

Another assignment is that the court erred in the instruction given. The charge of the court submitted the issues of murder and of manslaughter in the first degree and the law of self-defense. The instructions of the court, while not strictly correct, when considered as a whole were as favorable to defendant as he had any right to demand.

The ninth instruction, which was excepted to, is as follows :

“Evidence has, been admitted to prove that on various and sundry occasions prior to the killing the deceased had made threats upon the life of the defendant herein. In this connection you are told that 'bare threats made by the deceased, either communicated or uncommunicated, will not mitigate a homicide; and such proof cannot be considered by you as justifying the killing on the part of the defendant, unless the threats themselves were accompanied by some overt act or demonstration on the part of the deceased' which furnished the defendant reasonable cause to believe that he was in danger of being killed or of receiving great bodily injury at the hands of the deceased.’

It is objected to this instruction that by it the jury are told that the act or demonstration must have furnished defendant reasonable grounds to apprehend danger, thereby depriving him of the benefit of the circumstances as they reasonably appeared to him, and that the jury likely got the idea from the language used that a threat without an act was not to be considered. The instruction, to be technically correct, should have read, “unless at the time of the homicide there was some overt act or demonstration.”

This court has often held it is sufficient if the instructions, taken as a whole, substantially present the law of the case fairly. Absolute correctness of proceeding cannot be v obtained, even in our very best courts, and a defendant can- • not be heard to complain if an error is committed that cannot operate to his prejudice.

Another assignment is that the prosecuting attorney, in his argument to the jury, made use of inflammatory language while referring to the defendant and which was entirely unwarranted by the evidence.

The alleged objectionable remarks are not properly shown by the record. However, it appears that counsel for defendant in the course of the opening argument interposed an objection. The prosecuting attorney replied:

“If the court please, I want this in the record to show the state’s theory of this case, of how this occurred, that this is the most cruel murder I ever asked twelve men to pass upon. These are my remarks.”

The remarks of counsel must be considered and construed in reference to the evidence, and we think the remarks complained of are not of such character to raise the presumption that defendant was prejudiced in any degree.

Upon a very careful examination, both as to the law and the evidence, we have failed to discover anything that would warrant a reversal of the case.

There only remains the question as to whether . the judgment should be modified by this court.

One of the grounds in the motion for a new trial and assigned as error is: “The penalty assessed by the verdict of the jury, in its severity, is not justified 'by the evidence and the law.”

Under the following provisions of the Penal Code the - punishment to be inflicted for the crime of murder is left to the determination of the jury:

“Any person convicted of murder may suffer death, or imprisonment at hard labor in the state penitentiary for life, at the discretion of the jury.” Section 2319, Rev. Laws 1910.

When the death penalty is assessed the trial court is without power or authority to render judgment and sentence except in accordance with the verdict. Owen v. State, 13 Okla. Cr. 195, 163 Pac. 548.

It is provided in the Code of Criminal Procedure that “the appellate court may reverse, affirm or modify the judgment appealed from.” Section 6003, Rev. Laws 1910.

By this provision it seems to have been the intention of the Legislature to vest this court with power to modify the judgment, when such a course would be in furtherance of justice and conduce to the humane administration of the law. In a capital case it is the duty of this court to examine, with the greatest care, the whole record in favor of life, and review the case upon the merits to determine whether justice requires a modification of the judgment to imprisonment for life.

In this ease the fact that the open venire was summoned by an officer who was one of the main witnesses in the case should be considered, although no proper objection was made or exception taken.

In Koontz v. State, 10 Okla. Cr. 553, 159 Pac. 842, Ann. Cas. 1916A, 689, it is said:

“It is essential to the fair and impartial administration of justice that an open or special venire should be summoned by an officer who is not disqualified by reason of interest, bias, or prejudice.”

And while there is nothing to show that defendant exhausted his peremptory challenges, or that an objectionable juror was forced upon him, yet we are unable to disabuse our minds of the conviction that, all the circumstances being considered, defendant may have been seriously prejudiced. We are also inclined to think that the evidence is insufficient to warrant the extreme penalty of the law. For these reason's we are of opinion that justice requires a modification of the judgment and sentence of death to that of imprisonment at hard labor in the penitentiary for life.

The judgment of the district court of Carter county herein is so modified; as thus modified, the judgment is affirmed.

ARMSTRONG and MATSON, JJ., concur.


source: Caselaw Access Project

author: MATSON, J.

license: Public Domain

text:
    G. C. HARRIS v. STATE.
    No. A—2645.
    Opinion Filed Nov. 2, 1918.
    Rehearing Denied Tan. 19, 1920.
    (175 Pac. 627.)
    1. FORMER JEOPARDY — Form of Plea — Effect. Where a plea of former jeopardy is interposed in the form of a plea in abatement, it should be treated as a plea in bar to the action, unless it clearly appears from the plea itself as a matter of law it is insufficient.

      2. TRIAL — Plea of Former Acquittal — Issue for Jury. Where the plea of former acquittal shows an acquittal of au offense other than that for which defendant is informed against and placed on trial, the failure of the trial court to submit the issue of former acquittal to the jury under such circumstances was not . error. ■ ■
    3. EMBEZZLEMENT — Register of Deeds — -Statute—Separate Prosecutions. The register of deeds was required to make a monthly report of the fees earned and collected -by him, and to pay the same monthly into the county treasury. His failure or refusal so to do (pay all of such fees Into the county treasury at the end of each month, constituted au embezzlement on his part, for which crime he was liable to a separate prosecution for each and every month for which he had failed so to account.
    4. FORMER JEOPARDY — Plea of Former Acquittal — Same Offense — Bar, Where, on the trial for embezzlement of fees by ■a register of deeds alleged to have been committed on or about a designated date, the evidence shows distinct appropriations by the accused of certain sums of money during several different months of his term- of office, and the defendant moved the court to require the state to elect on which particular month's shortage it would rely for a conviction, which motion was sustained, and the state elected to rely upon the failure to report for the month of January, 1914, and the instructions of the court filed in support of the plea of former jeopardy show conclusively that the jury was limited in considering guilt to a particular embezzlement for January, 11914, and the verdict of the jury returned acquits the defendant only of embezzlement of funds received during the month of January, 1914, it appears conclusively' that the defendant was only charged, tried for, and acquitted of embezzlement of fees collected during the month of January, 1914. Such an acquittal was not a bar to. -subsequent pros-secution for the embezzlement of fees collected during the month of January, 1913.
    5. SAME — Double Jeopardy — Constitutional Provision — Construction. The constitutional provision against a second jeopardy is merely declaratory of the ancient principle of the common law. In application it is limited only to a second prosecution for the identical act and’ crime, 'both in law and fact, for which the first prosecution was instituted.
    6. SAME — Plea of Former Acquittal — Burden of Proof. The burden is upon the defendant to' show that his plea of former acquittal and former jeopardy is well founded’, both in law and fact.
    7. APPEAL AND ERROR — -Necessity for Exceptions — Remarks of Trial Court — New TriaL Where it is clear, from an examination of the entire record, that remarks of the trial court indulged in when ruling upon the admissibility of evidence have not injured the defendant, such remarks will not he considered alone as a sufficient ground for granting a new trial, especially where no request was made to withdraw the same from the consideration of the jury, and no ruling of the trial court thereon, which was excepted to at the time.

      Appeal from District Court, Marshall County; George C. Crump, Assigned Judge.

    G. G. Harris was convicted of the crime of embezzlement, and he appeals.
    Affirmed.

      F. E. Kennamer, James W. Bolen, C. C. Williams, Ben F. Rogers, and E. S. Hurt, for plaintiff in error.

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

This is an appeal from the district court of Marshall county, wherein the defendant was convicted of the crime of embezzlement, and sentenced to serve a term of one year and one day in the state penitentiary. From such judgment of conviction he prosecutes an appeal to this court, and asks that the judgment be reversed upon two grounds: •First, that the court erred in overruling his plea in abatement, which set up former jeopardy and former acquittal of the offense charged in the information on which this conviction was based; second, error of the trial court in making certain statements and remarks during the trial of the cause over the objection and exception of the defendant, which were prejudicial to his substantial rights.

In order to understand the facts upon which the plea of former jeopardy is based, it will be necessary to set out in this opinion a copy of the information- upon which this trial is had and conviction rendered, as well as a copy of the plea of former jeopardy interposed, which was overruled by the trial court:

“Information,
“State of Oklahoma, Plaintiff, v. G. C. Harris, Defendant.
“In the District Court in and for Marshall County, State of Oklahoma.
“Comes Geo. L. Sneed, the duly qualified and acting county attorney in and for Marshall county, Oklahoma, and gives the district court of Marshall county and the state of Oklahoma to know and be informed that the above-named defendant, G. C. Harris, late of Marshall county, did, in the said county and state, on or about the-day of February, A. D. 1913, commit the crime of (G. C. Harris) in the manner and form as follows: That is to say, the said defendant did, in the county and state aforesaid, at the time and date abové named, then and there, unlawfully, willfully, wrongfully, fraudulently, and feloniously embezzle, convert, and appropriate the sum of $35.75 to his own usé and to a use and purpose not in the due and lawful execution of the trust then and there imposed in him; that is to say, the said defendant on the date above named was the duly elected, and acting register of deeds of Marshall county, Oklahoma, and by reason of the said official position received in custody for said county certain sums of money, to wit, fees charged and collected for the filing and recording of instruments in said office, and of said funds so received and collected by the said G. C. Harris he did on the day and year above named then and there willfully, wrongfully, fraudulently, and felo-niously embezzle, convert, and appropriate the sum of thirty-five and 75/100 dollars to his own use, and to uses and purposes not in the due and lawful execution of said trust, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state.
“Geo. L. Sneed, County Attorney”
“State of Oklahoma, County of Marshall. In the District Court.
“State of Oklahoma, Plaintiff, v. G. C. Harris, Defendant. “Plea of Former Acquittal and Jeopardy.
‘‘Comes now the defendant, G. C. Harris, and for his special plea and bar herein says that the state of Oklahoma should not prosecute further this cause against him, because he says that heretofore, to wit, on the 7th day of December, 1914, in the district court of Marshall county, state of Oklahoma, there was duly and legally presented and filed in said court a valid information against him for the crime of embezzlement, a copy of which is hereto attached, marked Exhibit A, and made a part of this plea.
“And that on the 5th day of May, 1915, the said accusation against this defendant, G. C. Harris, in said cause No. 303, was legally tried upon its merits in said court by a jury drawn and impaneled, and the said G. C. Harris was by the verdict of said jury and the judgment of said court duly and legally acquitted of said accusation of said embezzlement, a copy of which verdict is hereto attached marked Exhibit B and made a part of this plea. And also a copy of the in-instructions of said court to the said jury in said cause No. 303 is hereto attached and marked Exhibit C and made a part of this plea and bar herein.
“That said judgmjent and verdict still remains in full force and effect, and not in the least reversed and made void, ■and is the verdict and judgment of a court of competent jurisdiction. And the defendant G. C. Harris in fact says and alleges that he, the said G. C. Harris, and the said G. C. Harris so accused and acquitted as last aforesaid, are one and the same person, and no other and different person, and ¡that the offense of which he, the said G. C. Harris, was so acquitted as aforesaid and the offense charged against him in the information herein, and for which he is now being prosecuted, is one and the same transaction or offense and identical in both law and fact.
“And the defendant,G. C. Harris, further says that he has been duly and legally acquitted formerly as aforesaid, and that, in the manner and form aforesaid, he was placed in jeopardy for the same offense of which he is now being prosecuted in this cause, and that he is ready to verify and make proof of the things herein alleged.
“Wherefore defendant prays that said plea be sustained in every respect, and that he be discharged from the judgment and plea of this court, and for such other and further relief as the court may deem just. G*. C. Harris.
“■State of Oklahoma, Marshall County.
“G-. C. Harris, of lawful age, being first duly sworn, upon oath says that he is the defendant above named, that he has read the foregoing plea, and that the facts and statements contained therein are true and correct.
“G. C. Harris.
“¡Subscribed and sworn to before me this 12th day of" September, 1915.
“(Seal.) R. D. Stone, Deputy Court Clerk.”
“Exhibit A.
“State of Oklahoma, Plaintiff, v. G. C. Harris, Defendant.
“In the District Court in and for Marshall County, State of Oklahoma.
“Comes Chas. A. Coakley, the duly qualified and acting county attorney in and for Marshall county, Oklahoma, and gives the district court in Marshall county and the state of Oklahoma to know and be informed that the above-named defendant, G. C. Harris, late of Marshall county, did, in the said county and state, on or about the 11th day of July, 1914, commit the crime of embezzlement in the manner and form as follows: That is to say, the said defendant did, in the county and state aforesaid, at the time and date above named, then and there being the duly qualified and acting register of deeds of Marshall county, state of Oklahoma, and being then and there, and by virtue of such office, charged with the collection, receipt, and safe-keeping of certain public money and property of said Marshall county, to wit, fees received by said G.C. Harris as such register of deeds for filing and recording instruments required and authorized by law to be filed and recorded in the office of the register of deeds of the county, and having collected said money so belonging to said county of Marshall, he, the said G. C. Harris, did unlawfully and feloniously convert to his own use said public money so collected, in the amount of one thousand four hundred eighteen and 89-100 dollars, contrary to the form of statute in such cases made and provided, and against the peace and dignity of the state of Oklahoma.
“2d Count: The said county attorney gives said district court further to know and be informed that the above-named defendant, G. C. Harris, late of Marshall county, did in said county and state, on or about the 11th day of July, 1914, commit the crime of embezzlement in the manner and form as follows: That is to say, the said defendant did in the county and state aforesaid, at the time and date above named then and there being the duly qualified and acting register of deeds of Marshall county, in, the state of Oklahoma, and being then and there and by virtue of such office charged with the collection, receipt, and safe keeping of certain public moneys, to wit, the fees received in such office for filing and recording written instruments required or authorized by law to be there filed at a fixed fee, and having collected said money by virtue of such office, he, the said G. C. Harris, did then and there aid and knowingly participate in converting said funds so collected, to the amount of $1,418.39, to the use of said G. C. Harris and other persons unknown to your informant, contrary to the form of the statute in ¡such cases made and provided, and against the peace and dignity of the state.
“Chas. A. C. Coakley, County Attorney.
“State of Oklahoma, Marshall 'County.
“I, Chas. A. Coakley, being duly sworn, on oath do state that I have read the foregoing information, and that the statements and allegations therein set out are true.
“■Chas. A. Coakley.
“'Subscribed and sworn to before me this the 7th day of December, A. D. 1914.
“Clerk of the District Court.
“Filed Dec. 7th, 1914. W. C. Campbell, Clerk.” “Exhibit B.
“In the District Court of Marshall County, Oklahoma.
“State of Oklahoma, Plaintiff, v. G. C. Harris, Defendant.
“Instruction to the Jury.
“Gentlemen of the Jury: The defendant, G. C. Harris, stands charged by information with the crime of embezzlement, alleged to have been committed in this county and state on or about the 11th day of July, 1914, while he was register of deeds of this county, by converting to his own use ■public money belonging to this county, which he had received as fees by virtue of his office as register of deeds. The county attorney has elected to rely for conviction upon an act of embezzlement alleged to have been committed about January, 1914. To the charge contained in this information the defendant has pleaded not guilty, which puts in issue every material allegation therein.
“As the law which shall be your guide in arriving at a verdict you are given the following instructions:
“1. Y>ou cannot convict the defendant for any act or acts of embezzlement, under the informlation and the election of the county attorney in this case, except such act as involves embezzlement of funds, or a part thereof, collected by virtue of his office by the defendant for the month of January, 1914:
“The issue in this case is, whether or not the defendant committed the crime of embezzlement of the funds or a portion thereof received by him as an official for that month. The fact that the information charged the offense as having been committed about the 11th day of July, 1914, is not material. Proof of the defendant’s guilt beyond a reasonable doubt of the said, crime alleged about January, 1914, is sufficient to satisfy the law as to time.
“2. If any officer charged with the collection, receipt, safe-keeping, transfer, or disbursements of the public money or any part thereof, belonging to the state or to any county, shall convert to his own use in any way, whether any such public money received, controlled, or held by such officer by virtue of such office for safekeeping, transfer, or disbursement, he shall be deemed guilty of embezzlement, and upon conviction thereof shall be sentenced to imprisonment in the penitentiary at hard labor for a term of not less than three nor more than twenty-one years, and also to pay a fine equal to double the amount in money so embezzled.
“3. Now, in this case, if you believe from the evidence beyond a reasonable doubt that the defendant. G. C. Harris, about the month of January, 1914, was the duly qualified end acting register of deeds of this county and state, and that he was then and there, by virtue of such office, charged with the collection, receipt, and safe-keeping of certain public money the property of Marshall county, same being ..’ess received by him as such register of deeds, for filing instruments required and authorized by law to be filed and recorded in his office, and having collected said money so belonging to this county the said defendant in this county and state did unlawfully and feloniously convert to his own use said public money so collected,in the amount of fourteen hundred and eighteen dollars and thirty-nine cents (31,418.39). or any other sum of the aforesaid money in excess of $20.00, then it would be your duty to convict the defendant of the crime charged.
“4. In case you find the defendant guilty, it will be your duty to fix his punishment at a term in the penitentiary of not less than three years nor more than twenty-one years, and in addition thereto assess a fine against him of double the amount of money you may find he embezzled about the month of January, 1914. If you have a reasonable doubt, however, of the defendant’s guilt, or cf the existence of any element of the crime, as I have set it out in instruction No. 3, then it will be your duty to acquit the defendant.
“5. The court has permitted evidence to be introduced before you tending to show discrepancies between the amounts which the reception record of the register of deeds office under the control of the defendant and the amount which the defendant each month turned into the county treasury and reported to the county commissioners, other than the money collected during the month of January, 1914. You cannot convict the defendant for any misappropriation other than for the month of January aforesaid, but you can consider that evidence along with the other facts in the case, for the purpose alone of showing the intent of the defendant, if you find that it tends to do that in conduct and disposition of the funds collected by him, by virtue of his office for the month of January, 1914.”

Other general instructions given and made a part of the plea are not necessary to be inserted here.

“Verdict Criminal.
“State of Oklahoma, Marshall County. In the District Court for Marshall County.
“We, the jury, drawn, impaneled, and sworn in the above-entitled cause, do upon our oaths find the defendant, G. C. Harris, not guilty of embezzlement of funds received during the month of January, 1914, as register of deeds.
“J. Gumm, Foreman.
“Filed May 5, 1915. W. C. Campbell, County Clerk.
“By R. D. Stone, Deputy.”

The plea of former jeopardy was not controverted by the state. Section 21 of article 2 of the Constitution provides :

“No person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided; nor shall any person, after having been once acquitted by a jury, be again put in jeopardy of life or liberty for that of Which he has been acquitted. Nor shall any person be twice put in jeopardy of life or liberty for the same offense.”

The third subdivison of section 5802, Revised Laws 1910, provides:

“If he plead a former conviction or acquittal: The defendant pleads that he has already befen convicted (or acquitted, as the case may be) of the offense charged in this indictment or information by. the judgment of the court of — — (naming it), rendered at- (naming the place), on the-day of — .”

Section 5809, Id., provides:

“When the defendant shall have been convicted or acquitted upon an indictment or information, the conviction or acquittal is a bar to another indictment or. information for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that indictment or information.”

In Johnson v. State, 1 Okla. Cr. 321, 97 Pac. 1059, 18 Ann. Cas. 300, it was held that a plea of former conviction or acquittal raises a question of fact fpr the jury to determine, unless the said plea is wholly insufficient as to matters of law. Also in Newton v. State, 14 Okla. Cr. 226, 170 Pac. 270, it was held:

“Upon the interposing of a plea of former jeopardy in the trial of any criminal case, a question of fact ordinarily arises which should be submitted to the jury for determination, unless the court is satisfied as a matter of law that the plea interposed is insufficient to raise the question of former jeopardy. In such event it is not error for the court to refuse to submit said plea to the jury if as a question of law it is insufficient.”

See, also, Morris v. Territory, 1 Okla. Cr. 618, 99 Pac. 760, 101 Pac. 111.

While the plea of former jeopardy in this case was not interposed in' the form provided by statute, but was addressed to the trial court in the form of a plea in abatement, clearly from the former opinions of this court it should have been treated as a plea in bar unless from the face of said plea it clearly appeared as a matter of law that said plea was insufficient. The trial court did not submit any issue of fact to the jury, but considered said plea in abatement to said action, and heard evidence thereon tending to support the same. The court overruled said plea in abatement, to which action the defendant excepted.

The question presented for consideration, therefore, is whether or not the plea interposed was sufficient in law to raise a question of fact as to the identity of the offense for which a former acquittal'had been had with the offense charged in the informiation upon which this trial and conviction are based. If the facts pleaded in said plea uncon-troverted show an identity of offenses, or the pleading is sufficient to create a doubt as to whether or not the defendant had theretofore been placed in jeopardy for the same offense charged in this information, then the court should have submitted the issue to a jury under proper instructions, unless the evidence in support of the plea established the fact that there was no identity of offenses and no former jeopardy.

The question here presented is one difficult of solution. The defendant was the register of deeds of Marshall county, Okla., and the embezzlement charged is that of fees received and collected by him as such officer for recording certain deeds, mortgages, and other instruments required by law to be filed and recorded in -his office.

The particular sections of the statute in force at the time that this prosecution was instituted are 3218 and 3214, Revised Laws of 1910, which provide, respectively, as follows:

“Any county, township and district officer who is required by law to make monthly or quarterly reports to the board of county commissioners who fails or refuses to make such reports, or who makes a false or fraudulent report, shall be deemed guilty of a misdemeanor and in addition to his punishment he shall forfeit his office; and when such officer shall fail or refuse to account for or to pay over any money in his official capacity, he shall be deemed guilty of embezzlement, and in no case shall any county officer retain any perquisites of his office; and if any officer neglect or refuse to charge the fees provided by law, he shall forfeit double the amount thereof to be deducted from his salary, or to be collected by civil action against any such officer or his bondsmen.”
“At each monthly meeting of the board of county commissioners or, if monthly meetings are not held, at each quarterly meeting, the clerk of the district court, the clerk of the superior court, the clerk of the county court, the county clerk and the register of deeds shall each file a verified report of the work of the preceding month or quarter, showing the total fees charged in each case and the total fees collected in each case, and shall pay all such fees into the county treasury and file duplicate receipts therefor with the county clerk.”

And said sections are to be considered in connection with sections 2670 and 2671, Id., which provide, respectively, as follows:

“Embezzlement is the fraudulent appropriation of property by a person to whom it has been entrusted.”
“If any person, being an officer, director, trustee, clerk, servant or agent of any association, society or corporation, public or private, fraudulently appropriates to any use or purpose not in the due and lawful execution of his trust, any property which he has in his possession or under his control by virtue of his trust, or secretes it with fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement.”

The register of deeds was required to make a monthly report of the fees earned and collected by him, and to pay the same monthly into the county treasury. His failure or refusal so to do (pay all such fees into the county treasury at the end of each month) constituted an embezzlement on his part, for which crime he was liable to a separate prosecution for each and every month for which he had failed so to account. Warner v. Matthews, Judge, 11 Okla. Cr. 122, 143 Pac. 516.

Under our form of criminal pleading the indictment or information must charge but one offense, unless the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty of, in which case the different offenses may be set forth in separate counts in the same indictment or information, and-the accused may be convicted of either offense, and the court or jury trying the cause may find all or either of the persons guilty of either of the offenses charged, and the same offense may be set forth in different forms or degrees under different counts. Section 5741, Revised Laws of 1910. Also it provides that the particular time at which an offense is committed need not be alleged in the indictment, unless time is of the essence of the offense charged. Section 5742, Id.

In a charge of embezzlement time is not of the essence of the offense except that the alleged crime must appear from the face of the indictment or information to have been committed within the period of the statute of limitations, unless facts are pleaded extraneously which toll the limitations statute. Under the original information upon which the defendant was acquitted, the particular embezzlement charged to have been committed is alleged to have taken place on or about the 11th day of July, 1914. In view of the fact that an information may charge only one offense, and also in view of the statute aforesaid making each month’s shortage a separate embezzlement, when the defendant pleaded not guilty to the information first filed against him he was advised that there could be a conviction only for one month’s shortage within the period of the statute of limitations, and that he could only be prosecuted and convicted for a deficit or particular taking during one particular month. Bonitzer v. State, 4 Okla. Cr. 354, 111 Pac. 980.

Time not being of the essence of the offense, the state was not required to confine its proof to a particular embezzlement on dr about the date alleged, but the state was required to confine its proof to a taking during one particular month during defendant’s term of office and within the statute of limitations. The record in support of the plea of former jeopardy shows conclusively that the defendant moved the court to require the state to elect on which month’s shortage it wiould rely for a conviction, which motion was sustained, and the state elected to rely upon the failure to report for the month of January, 1914, and the instructions of the court filed in support of the plea of former jeopardy show conclusively that the jury was limited to considering a particular embezzlement for January, 1914, and the verdict of the jury returned acquits the defendant only of embezzlement of funds received during the month of January, 1914.

While the evidence of acts of embezzlement during other months of the defendant’s term of office was admitted, yet the trial court, in instructing the jury, specifically limited the jury’s consideration of this evidence “for the purpose alone of showing the intent of the defendant, if you find that it tends to do that in conduct and disposition of the funds collected by him by virtue of his office for the month of January, 1914.” So that it appears conclusively from the record in this case, and from the face of the plea of former acquittal interposed, that the defendant was only charged, tried for, and acquitted of an embezzlement of fees collected during the month of January, 1914.

The plea of former acquittal shows an acquittal of an offense other than that for which defendant was informed against and convicted in this case, and for that reason was not good in law, and the failure. of the trial court to submit that issue to the jury was not error. Newton v. State, supra; Morris v. Territory, supra.

But it is contended that, after the jury was impaneled and sworn to try the defendant on the charge of embezzlement first filed against him, jeopardy attached for each and every offense of which he might have been convicted thereunder; that time not being of the essence of the offense, and the allegations of the information not being specific as to the particular month the alleged embezzlement occurred, before the state was required to elect upon which month it would rely for a conviction jeopardy attached as to any embezzlement by the defendant for each and every month during his term of office.

With this contention we cannot agree. The constitutional provisions against a second jeopardy are merely declaratory of the ancient principle of the common law. In their application they are limited only to a second prosecution for the identical act and crime, both in law and fact, for which the first prosecution was instituted. Burton v. United States, 202 U. S. 344, 26 Sup. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 362; Allen v. United States, 194 Fed. 664, 114 C. C. A. 357, 39 L. R. A. (N. S.) 385; Dominick v. State, 40 Ala. 680, 91 Am. Dec. 496; Campbell v. People, 109 Ill. 565, 50 Am. Rep. 621; State v. Ellsworth, 131 N. C. 773, 42 S. E. 699, 92 Am. St. Rep. 790; 12 Cyc. 368.

In Storm v. Territory, 12 Ariz. 26, 94 Pac. 1099, under statutory provisions practically and substantially the same as the constitutional and statutory provisions of this state, a question identical in principal with that here raised was decided by the Supreme Court of Arizona. In that case the court held:

“Pen. Code 1901, § 885, provides that, when accused is convicted or acquitted, or has once been placed in jeopardy, the conviction, acquittal, or jeopardy is bar to another indictment for the same offense. On trial for embezzlement committed on a designated date, the evidence showed distinct appropriations by accused of specified sums of money at three different times, including an appropriation on the date charged. The state elected to stand on the evidence of the commission of the offense on the designated date. Held that an acquittal did not bar a subsequent prosecution for the embezzlement committed at the other times.”

In the body of the opinion it is said:

“1. Section 885 of the Penal Code of 1901 provides that: ‘When the defendant is convicted or acquitted, or has once been placed in jeopardy upon indictment, the conviction, acquittal, or jeopardy is a bar to another indictment for the offense charged in the former or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted'under the indictment.’ Appellant’s contention, quoting from his brief, is that: ‘Time and amount being immaterial, clearly proof under the first indictment that defendant misappropriated $1,000 or any sum of the county’s funds would have procured a conviction; and defendant “might have been convicted under the indictment.” * * * Under this indictment appellant was charged with all the shortage during his term of office, and was tried for it, and, the offense1 being single, no act of the court or defendant could split it up. The prosecution could carve but one offense out of it.’
“The matter here presented is difficult to treat without a much extended opinion. To avoid writing ‘a general treatise, as expressed in a similar case (Ex parte Nielsen, 131 U. S. 190, 9 Sup. Ct. 672, 33 L. Ed. 118), we shall go but little beyond the statement of our conclusions. Extended consideration of the questions involved, with citation of authorities may be found in State v. Price, 127 Iowa, 301, 103 N. W. 195 (upon which decision appellant greatly relies) ; 1 Bish. New Crim. Law, §§ 1051 to 1065, inclusive; State v. Colgate, 31 Kan. 511, 3 Pac. 346, 47 Am. Rep. 507; Dill v. People, 19 Colo. 469, 36 Pac. 229, 41 Am. St. Rep. 254. The illustrations given by Mr. Justice McLain in his dissenting opinion (concurred in by the Chief Justice) in State v. Price, supra, of the successive larceny from the same owner of several different horses, and the successive embezzlement of different sums, of money belonging to the same owner, are apt and convincing. The rule expressed by the majority opinion in that case, and by a great many other decisions, that the test of once in jeopardy is whether if what is set out in the second indictment had been proved under the first there could have been a conviction, or whether the first indictment was such that the accused might legally be convicted under it by proof of the same facts as those by which the second is to be sustained, may avail to determine correctly a great many cases. It is not at all uncommon for proof of collateral but distinct crimes to be offered in evidence in support of the charge on trial, and identically the same evidence is often appropriate to secure convictions of each of such crimes under separate indictments. It is not difficult to perceive that such proof might become available even in a larceny case. If, taking Mr. Justice McLain’s illustration, the defendant shall have stolen at intervals a number of different horses from the same owner, but his defense be that, while he took the animal, he did so under an honest belief that it w(as his own, proof of the other thefts would be admissible to negative the honest belief. Yet we know of no authority which goes so far as to say that by reason of his acquittal of the theft of one of the horses the defendant could not be convicted of the theft of any one of the others. Furthermore the several indictments for the theft of the several horses would, unless the horses were unnecessarily described, be in identical terms, varying only as to dates, which by the law in this .territory as well as in other jurisdictions need not be proved as charged. Hence, upon the face of the indictments, there would be no possibility of distinguishing the different charges, ' and the proof of any one of the several larcenies should procure a conviction under any one of the indictments.
“An illustration more apt for the present case readily suggests itself in a series of forgeries, each one of which might be the subject of an indictment, but all of which would undoubtedly be adduced in evidence upon the trial of each charge. 'The problem of once in jeopardy would have to be solved in such instances by appeal to another rule urged in the dissenting opinion, supra, and presented by many authorities as the appropriate test, to wit, that the identity of transactions is the controlling consideration. There is nothing in the indictments to distinguish the two-charges which we are considering, because neither the amounts charged to be embezzled nor the dates of the misappropriations need be proved as laid. If Storm misappropriated $1,000 in the year 1902, a second $1,000 in 1903, and a third sum of several thousand dollars in 1904, each of these misappropriations was a separate and distinct embezzlement. It is unchallengeable that, if he had been indicted and convicted or acquitted for the misappropriation of 1902 prior to the misappropriation in 1903, and after the latter misappropriation had been indicted therefor, his former conviction or acquittal wtould not be a bar to the prosecution of the latter indictment. Similar conclusions would be reached if after conviction or acquittal upon this latter indictment, the misappropriation of 1904 and an indictment therefor should! follow.. We cannot perceive that the result ought to be different if the several indictments are found after all of the misappropriations. This is not a continuing offense, but is one in which each misappropriation is a distinct crime. The fact that all were adduced in evidence at the trial of the first indictment, and that the prosecution could have elected to rely upon the misappropriation of April, 1903, instead of that of November, 1904, ought not, in our judgment, to bar the prosecution under this second indictment. The court’s instruction that, as a matter of law, the evidence does not sustain the pleas of former acquittal or once in jeopardy was sound.”

We consider the reasoning of the court in Storm v. Territory, supra, to be sound, well founded in law, and supported by the weight of modern authority. The opinion in the Storm Case was affirmed by the Circuit Court of Appeals of the Ninth Circuit (170 Fed. 423, 95 C. C. A. 593). Rehearing was also denied by the territorial court (12 Ariz. 109, 99 Pac. 275).

Also in State v. Pianfetti, 79 Vt. 236, 65 Atl. 84, 9 Ann. Cas. 127, the court said:

“But it is held that in prosecutions of offenses which from their nature are capable of repetition (and, it might be added, in common experience are usually many times repeated), each separate act being a distinct and substantive offense, this test is not applicable, and that no presumption of identity will arise from the fact that evidence sufficient to convict under one would warrant a conviction under the other. In such cases, the respondent must show affirma-lively, by proof outside the record, that the offenses are one and the same.”

See, also, 12 Cyc. 281; Standard Oil Co. v. Com., 87 S. W. 1092, 27 Ky. Law Rep. 1131; Miller v. State (Tex. Cr. App.) 72 S. W. 856.

We reach the conclusion, therefore, that ix was not error prejudicial to the substantial rights of this defendant for the trial court to overrule the plea of former acquittal and former jeopardy in this case, and refuse to submit the same as a question of fact for the jury to decide.

The burden is upon the defendant to show that his plea of former acquittal and former jeopardy is well founded, both in law and fact. There is an entire failure in the plea interposed in this case to show that the offense for which he was placed in jeopardy and acquitted is identical in law and fact with the offense for which he was tried and convicted in this case.

The further contention that the trial court erred in commenting upon the weight of certain evidence introduced by the state against the defendant is also lacking in merit. The record shows that, in refusing to permit the. state to introduce certain record evidence against the defendant, the court excluded the same for the reason that the same facts had been already proved in the form of other records, and held the evidence to be immaterial. In so doing the court made certain comments to which the defendant objected, but to which comments no exception was taken, nor any request made that the jury be instructed not to consider the same. The court’s action in refusing to permit the state to introduce this record evidence was favorable to the defendant, and while in making such ruling the court made certain unnecessary comments as reasons therefor, certainly these commjents were not considered prejudicial at the time they were made, or else the defendant would have saved the proper exceptions thereto, and made a proper request that the jury be instructed not to consider such remarks.

It also appears 'from- the record that the defendant became a witness in his own behalf, and an examination of his testimony discloses no evidence which tends in any way to impeach the truthfulness of the records concerning which the court made the remarks complained of. The court’s remarks were to the effect that the records, being unimpeached, were presumed to be truthful; and as the defendant himself, as a witness and as a defense to the action, did not attack the truthfulness of the reports made or the amount of money received by him as shown by such records, we fail to see wherein he was prejudiced toy any remark of the trial court to the effect that such records were presumed to be truthful, especially as no proper request w¡as made to withdraw such remarks from the consideration of the jury, and no ruling of the trial court m'ade thereon which was properly excepted to at the -'-ime. •

The practice of trial courts in thus commenting upon the weight or effect of testimony when ruling upon its admissibility is greatly to be deplored, and should not be indulged in. The repeated admonitions in the opinions of this court against such practices should at least have a deterring effect upon those charged with the duty of seeing that the law is administered fairly and impartially, both to the state and to the defendant. But where it is clear from the entire record that such remarks have not injured the defendant, they will not be considered alone as sufficient ground for granting a new trial. Cochran v. State, 4 Okla. Cr. 390, 111 Pac. 978.

It is the judgment of this court that the judgment of conviction of the crime of embezzlement rendered in the district court of Marshall county on the 24th day of September, 1915, sentencing the defendant to serve a term of one year and one day in the state penitentiary, be, and the same is hereby affirmed,

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


author: ARMSTRONG, J.

text:
    JAMES TAYLOR v. STATE.
    No. A-3234.
    Opinion Filed Jan. 19, 1920.
    (186 Pac. 243.)
    (Syllabus.)
    1. HOMICIDE; — Evidence of Threats by Deceased'. When the undisputed facts clearly show that a defendant committed an un-Í warranted and unprovoked assault and took the life of deceased without any overt or unlawful demonstration of hostility upon the part of deceased, it is not error for the trial court to exclude evidence of previous threats made by deceased against 'defendant.
    2. HOMICIDE — Conviction—Sufficiency of Evidence. The entire evidence in this case carefully considered, and found that, if all the evidence as the facts surrounding the commission of the homicide charged be eliminated' other than the testimony of the defendant, there remains evidence sufficient to fully warrant the verdict found and the judgment thereon rendered.

      Appeal from District Court, Oklahoma County; Edward D. Oldfield, Judge.

    James Taylor was convicted of murder, and appeals.
    Affirmed.

      Pruiett, Sniggs, Burns & Patterson, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Jim Taylor, hereinafter referred to as defendant, was informed against for the murder of John Williams, convicted, and sentenced to imprisonment in the penitentiary for the. term of his natural life. To reverse the judgment rendered on the verdict, he prosecutes this appeal.

The material undenied evidence is that on Monday, May 14, 1917, at the Terminal Station in the city of Oklahoma, a crowded stockyard car was> standing, in which was seated by the side of another colored man the deceased. The defendant entered the car and stood near the door, and afterwards made his way through the crowded aisle of the car to the rear of where the deceased was seated, placed his hands upon his shoulders, and when he attempted to get up, and before he had fully done so, stabbed the deceased in the back with a knife. The deceased almost immediately fell upon the floor of the car, and from the effects of the wound died. The moving cause of said homicide, as testified to by the defendant, was that on the Saturday nigh! previous the deceased had loaned to añother negro a pistol with which to kill the defendant; that the defendant was therefore mad at him and was, afraid that he might do him some injury, as he did not know what he had in a small package that was in his hand. There was no evidence that just prior to or at the time the fatal 'blow was struck deceased committed any overt act or made any hostile demonstrations toward the defendant, or that the deceased was armed. In short, there was no evidence of any element of self-defense in the case.

The defendant offered evidence tending to show that previous to the homicide the deceased had threatened to kill him, which threats were not communicated to him prior to the homicide. The court sustained an objection to the admission of the said offered evidence, and defendant excepted. The defendant timely moved for a new trial, which motion was overruled and exception saved.

The errors argued and insisted upon in defendant’s brief are:

“(1) The verdict is contrary to the law and evidence.
“(2) The mlotion for a new trial should have been granted.”

The argument in support of said first error claimed is not that the evidence is not sufficient to support a conviction of homicide, but that the verdict and judgment rendered thereon is excessive. It is not contended that the defendant was entitled to a verdict because he acted in self-defense. We are of the opinion that, if all the evidence except the evidence of the defendant be eliminated, his evidence alone is sufficient to fully support the conviction had, as his evidence conclusively shows that he acted in revenge of a nursed wrong done him by the deceased in loaning to another negro, a pistol to kill him, and that he premeditatedly killed the deceased when he was sitting down, unarmed and in no wise making any demonstration toward the defendant as could possibly be conceived by the defendant as intending to do defendant any great bodily harm, or that the deceased so acted, viewing the situation as it appeared to the defendant at the time of the homicide, as to warrant him to take the life of the deceased in self-defense. When to the evidence of the defendant is added the overwhelming evidence of the state, we are of the opinion that the verdict and judgment rendered thereon are not excessive, but that the evidence was sufficient to sustain a capital conviction.

The argument of counsel for defendant “that the verdict is excessive” is an indirect admission excluding any claim that the defendant acted in self-defense. If he acted in self-defense, the verdict was not excessive, but erroneous.

It is further urged by defendant that the court committed reversible error in excluding evidence offered. The evidence pointed out as being erroneously excluded was offered evidence that the deceased prior to the homicide threatened the life of the defendant, which threat was not known to the defendant at the time he killed the deceased. With this contention we cannot agree. Where, as in the instant case, the evidence shows that the defendant was the aggressor, and by his unlawful acts occasioned the homicide without hostile conduct of Any character upon the part of deceased, it is not error for the trial court to refuse to admit evidence of previous threats by the deceased. Morris v. Territory, 1 Okla. Cr. 617, 99 Pac. 760, 101 Pac. 111; Reed v. State, 2 Okla. Cr. 589, 103 Pac. 1042; White v. State, 4 Okla. Cr. 143, 111 Pac. 1010; Smith v. State, 14 Okla. Cr. 250, 174 Pac. 1107.

Even though previous to the homicide the deceased had threatened the life of the defendant, and such threats were communicated to him, these threats would not authorize the defendant to take the life of the deceased under the theory that he acted in self-defense, unless there was just prior to the homicide some overt act or hostile demonstration on the part of deceased towards the defendant tending to show an intention, viewled from the standpoint of defendant, to carry such threats into execution. Smith v. State, supra.

The court did not err in excluding the offered evidence. We are of the opinion that the court did not err in over ruling the motion for a new trial.

The judgment of the trial court is affirmed.

DOYLE, P. J., and MATSON, J., concur.


text:
    STATE v. ROBERT S. EVANS.
    No. A-3333.
    Opinion Filed Jan. 24, 1920.
    (186 Pac. 735.)
    (Syllabus.)
    1. FORMER JEOPARDY — Dismissal. Where a valid information has been filed, charging defendant with crime, and the defendant has pleaded thereto, and the jury has been impaneled according to law to try defendant for such crime, and said jury is discharged and the cause dismissed before a verdict is returned, on motion of defendant’s counsel, jeopardy did not attach to the defendant under such circumstances.
    2. TRIAL — (Province of Jury — Dismissal. All questions of fact in a criminal cause should be submitted to the jury for determination. The trial court should not dismiss a criminal action and discharge the jury before a verdict is returned; but, where the evidence is clearly insufficient to authorize the conviction of the defendant of the crime charged, the trial court should advise the jury to acquit.
    3. SAME — Insufficient Evidence — Procedure. Treating the statement of facts'of the county attorney as true, and as the facts proved against defendant, it is held, that the evidence in this case is wholly insufficient to authorize a conviction of the crime charged, and, for the reason that it -would entail unnecessary expense to the taxpayers to reidand this cause for further proceedings, the action of the trial court in discharging the jury and dismissing said cause is affirmed, but the procedure employed is not commended.

      Appeal from District Court, Woods County; W. C. Crow, Judge.

    Robert S. Evans was indicted for larceny of live stock, his motion to discharge the jury and dismiss the case was sustained, and the State appeals.
    Question of law decided adversely to State’s contention, and order affirmed.

      Sandor J. Vigg, Co. Atty., for the State.

      L. T. Wilson, C. H. Mauntel, and John W. Barry, for defendant in error.
   MATSON, J.

This is an appeal by the state of Oklahoma, through the county attorney of Woods county, in which a certain question of law as to the sufficiency of the evidence to convict the defendant of the crime of larceny of live stock, with which he was charged in the district court of Woods county, Okla., by a valid information, is raised for decision.

After a jury had been impaneled according to law to try the defendant for said crime, the county attorney made a statement of facts, and counsel for the defendant did likewise; thereupon, at the suggestion of the trial judge, counsel for the defendant moved the court to discharge the jury and dismiss the case, for the reason that if all the facts stated by the county attorney were proved upon the trial, and admitted to be true, there would be no evidence sufficient to authorize the jury to return a verdict of guilty.

After a lengthy argument by both sides as to the merits of the motion interposed by. defendant’s counsel, it was agreed by the county attorney that he could produce no evidence other than that stated by him in his opening statement, and that, for the purpose of preventing unnecessary and additional expense to the county, the court should consider his statement as the facts proved by the state in the case, considering such facts to be true, and make his ruling on the motion accordingly.

Thereupon, the court, considering such facts as proved and as true, sustained the motion of defendant’s counsel, and, after discharging the jury, dismissed said cause. Counsel for the defendant neither requested a directed verdict nor took exception to the court’s action in discharging the jury.

The jury having been discharged, and the cause dismissed on motion of defendant’s counsel, it is the opinion of this court that jeopardy did not attach, and that, if the facts as a matter of law were sufficient to authorize the submission of the cause to the jury, the same could properly be remanded by this court for that purpose. Loyd v. State, 6 Okla. Cr. 77, 116 Pac. 959; State v. Frisbee, 8 Okla. Cr. 406, 127 Pac. 1091; Allen v. State, 13 Okla. Cr. 533, 165 Pac. 745, L. R. A. 1917E, 1085.

'Without entering into a lengthy discussion of the incriminating facts against the defendant contained in the opening statement of the county attorney, upon which this motion wlas based, and which would serve no useful purpose as a guide in the prosecution of other similar offenses, but applying the well-established principles of law to the questions of the sufficiency of circumstantial evidence and to proof necessary to establish that a conspiracy existed between this defendant and others jointly charged with him in the commission of the crime, which questions were necessarily involved in order to connect this defendant with the commission of the crime, the conclusion is reached that the facts stated by the county attorney were wholly insufficient to authorize a verdict of guilty, and that, had this cause resulted in such a verdict, the same should have been set aside either by the lower court or on appeal in this court.

While the practice of dismissing a criminal cause and discharging a jury before the evidence of the state has been submitted is not to be commended, and is improper procedure under our statutes, nevertheless, the trial court , having treated the statement of the county attorney as the facts proved, and such facts as true, it would entail unnecessary expense to the taxpayers to remand a cause solely for the purpose of having a verdict returned where the facts, if admitted to be true, are wholly insufficient to authorize a conviction of the crime charged.

For the reasons stated, we find no error committed by the trial court in discharging the jury and. dismissing the action.

The questions of law involved are- therefore decided adversely to the state, and the action of the lower court in discharging the jury and dismlissing the cause is affirmed. Mandate forthwith.

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


text:
    WALKER COX et al. v. STATE.
    No. A—3178.
    Opinion Filed Jan. 24, 1920.
    (186 Pac. 736.)
    (Syllabus.)
    BURGLARY — Sufficiency of Indictment. .The indictment examined, and held insufficient to sustain a conviction of burglary in the second degree, following Sullivan v. State, 7 Olda. Or. 307, 123 Pac. 569.

      Appeal .from District Court, McIntosh County; R. W. Higgins, Judge.

    Walker Cox and Bill Lindsay were convicted of the crime of burglary in the second degree, and they appeal.
    Judgments reversed and cause remanded, with instruction to sustain demurrer to indictment and to resubmit cause to grand jury.

      W. J. Crump, M. G. Bailey, Don M. Grump, and Brook & Brook, for plaintiffs in error.

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

This is an appeal from the district court of McIntosh county, wherein the defendants, Walker Cox and Bill Lindsay, were jointly indicted, tried, and convicted of the crime of burglary in the second degree, alleged to have been committed by them in the month of June, 1916, by breaking into a certain store building, the property of one W. P. Bankston, located at the town of Fawn, Okla.

The charging part of the indictment is as follows:

“That the said Walker Cox, the said Bill Lindsay, and the said Harrison Lindsay, in the county and state aforesaid, on the day and year aforesaid, did then and there unlawfully, wrongfully, wilfully, burglariously, and feloniously break into and enter by breaking an outer door of said building, a certain store building, being the property of W. P. Bankston, and being then and there a place where personal property was and is kept, with the unlawful, felonious, and burglarious intent then and there on the part of them, the said Walker Cox, the said Bill Lindsay, and said Harrison Lindsay, to commit grand larceny ther» in, to wit, with the intent to unlawfully and feloniously and stealthily take, steal, and carry away certain personal property thereat and therein, to wit, groceries, provisions, and dry goods of the value of more than $20 and of the personal property of the said W. P. Bankston, and contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

To the foregoing indictment counsel for the defendants interposed a demurrer on the following grounds:

“(1) Said indictment does not state facts sufficient to- charge a crime against any statute of the state of Oklahoma, or any violation of any criminal statute of said state.
“(2) Said indictment does not set out with sufficient particularity the crime sought to be charged therein, nor does said indictment set out the crime sought to 'be charged sufficiently to apprise the defendants for what crime they are required to answer or with which they are charged.”

The trial court overruled the demurrer to said indictment, to which action exception was taken by counsel for the defendants at the time. Counsel for the defendants also set up as one of the grounds for a new trial that the court erred in overruling the demurrer to the indictment. The motion for new trial was overruled, to which action counsel for the defendants excepted, and as one of the grounds set up in the petition in error for a reversal of this judgment it is contended that the trial court erred in overruling the demurrer to said indictment.

It is the opinion of this court that the trial court erred to the prejudice of the defendants in overruling the demurrer to the indictment returned in this cause. „

■Section 2615, Revised Laws 1910, defining burglary in second degree, provides:

“Any person who breaks and enters in the daytime or in the nighttime, either: First, Any building within the curtilage of a dwelling house, but not forming a part thereof; or, Second, Any building or any part of any building, booth, tent, railroad car, vessel or other structure or erection in which any property is kept with intent to steal therein or to commit any felony, is guilty of burglary in the second degree.”

In the case of Sullivan v. State, 7 Okla. Cr. 307, 123 Pac. 569, in section “a” of the first paragraph of the syllabus it is held:

“In an indictment or information charging burglary, based upon the unlawful breaking and entering of a railroad car with intent to steal therein, it is necessary for the allegation of intent to set out the acts required to constitute the crime of stealing at common law.”

Clearly the foregoing indictment is insufficient if the pleader intended to charge the defendants with intent to steal from the storehouse, because the acts required to constitute the crime of stealing as known to the common law are not pleaded, as it is nowhere charged that the defendants took the property with the intent to deprive the owner thereof and to convert it to their own use.

Neither does said indictment allege acts sufficient to charge the defendants with the intention of committing the crime of burglary by breaking into said building with intent to commit the crime of grand larceny therein, because the indictment contains no allegation that the defendants took said property “with intention to deprive another thereof,” which has heretofore been held to be a necessary ingredient of the crime of larceny as defined by our statutes. Steil v. Terr., 12 Okla. 377, 71 Pac. 653; Sullivan v. State, 7 Okla. Cr. 307, 123 Pac. 569.

A lengthy discussion of the reasons for holding an information upon which the defendant was convicted of the crime of burglary in the second degree insufficient upon the grounds here contended for is to be found in the case of Sullivan v. State, supra.

Attention is also called to the case of Simpson v. State, 5 Okla. Cr. 57, 113 Pac. 549, wherein it is held:

“An indictment for burglary, whether at common law or under statute, must allege every fact and circumstance necessary to constitute the offense, including time, place, ownership, and description of premises.”

The indictment in the instant case is entirely silent as to the location and description of the storehouse alleged to have been burglarized.

The cases followed in holding the information in this case insufficient to charge the crime of burglary in the second degree are of long standing, and, as was said by this court in the caset of Parker v. State, 13 Okla. Cr. 460, 165 Pac. 622:

“County attorneys will experience no difficulty in following the doctrine in the Sullivan Case.”

For-the reasons stated, the judgment of conviction as to each defendant is reversed, and the cause remanded to the district court of McIntosh county, with instructions to said court to sustain demurrer to the indictment, with •directions to resubmit the cause to the next grand jury empaneled in said county.

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