source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    ROMAN CAIN v. STATE.
    No. A-5838.
    Opinion Filed July 9, 1927.
    (257 Pac. 1114.)
    Anglin & Stevenson, J. L. Skinner, and Forrest M. Darrough, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was charged in the district court of Hughes county with the crime of murder, was convicted of manslaughter in the first degree, and his punishment fixed at four years in the state penitentiary.

Only one assignment of error is argued in the brief; that is, that the evidence is insufficient to sustain the judgment.

The record discloses a state of facts about as follows: Both the defendant and deceased are full-blood Creek Indians between the ages of 25 and 30 years. On the date of the homicide, defendant, his brother, and one Mitchell Hill Went to Holdenville in a car. Near the depot they met deceased on horseback, and invited him to join them. He put his horse in the livery stable, and did so. Deceased had been drinking, and, after he joined the parties in the car, they went to the negro section of the town, got a bottle of whisky, and drank it as they drove towards Hill’s home. They stopped at Hill’s home, and defendant, his brother, and Hill got out, stayed for some time, and deceased remained in the car. Defendant and his brother and deceased then started to the home of defendant at Wetumka. On the road they got into a difficulty, and, while deceased was seated in the car, defendant struck him two blows on the head with a car jack, and crushed his skull. Defendant and his brother testified in substance that deceased was very drunk, and scuffled with defendant, who was driving the car; threatened to kill them, and seized the brother by the throat; that defendant struck him, forcing him to release his hold, and the brother then ran, and defendant jerked the jack out of deceased’s hand, struck him over the head, which caused his death.

Defendant contends that the homicide occurred while resisting an attack made upon him by deceased; that he used no more force than was reasonably necessary to repel the attack. After the body, which was left at the roadside, was discovered, defendant was questioned biy an officer, and he denied any knowledge of the killing. Later defendant told the officer he had lied about the killing, and was going to tell the truth, and said:

“* * * We Were in the road down there, was passing down about 10 or 11 o’clock on the road, two miles east of Yeager, and he jumped off of the car on the running board, and looked like he was going to choke me, and I just got the jack and knocked him down and killed hint.”

Upon the trial in reference to the difficulty between defendant, his brother, and deceased, defendant testified:

“* * * q. What position did Charley have the jack in when you first saw the jack? A. He had it in that fashion. Had it in this way (indicating) with jack in his hand (indicating). Q. Ylou were on, the ground? A. Yes, sir. Q, Now, what happened? A. When I saw that, I got him by the wrist and one hand on the jack, and wrenched the jack out of his hand. Q. Now, what did Charley say at that time, if anything? A. When I got the jack away from him, he grabbed me by the throat with his hand that way when I, struck him. * * * Q. What did he say, if anything? A. He told me he was going to kill me. Q. Was Tom there then ? A. He had ran off. Q. How big a man was Charley Kernall? A. He was a well-built man, kind of stocky man. Q. Hbw big was he? Big as you are, or bigger? A. I think he was larger than I, just a trifle, though. Q. Why did you hit him with that jack? A. I hit him on the head. Q. Why? Why did you hit him with that jack? A. He had me by the throat, and that was the only way I had to get away, get loose. * * * Q. You wasn’t afraid until after you got out of the car and come around back to him, were you? A. I was afraid of him, but then I left the key in the automobile, key sticking in the car, and I was afraid if I left the car with him he might take possession of it and get away with it, and I had to get out and come around. Q. Well, you came right around, and you saw the jack before you went up to him, didn’t you ? A. Yles, sir. Q. You went right up to him, with him the jack in his hand? A. When I came up I saw that he had the jack in his hand, and I grabbed. By the Court: Was he sitting down in the car? By Mr. Fancher: Q. Where was Charley Kernall? Was he in the car or out? A. He was in the car. Q. Was he sitting down or standing up? A. How? Who? Q. Now, Charley Kernall? A. He was sitting in the seat. Q. Was he sitting in the seat when you hit him? A. Yes, sir. Q. When you hit him— how did you hold this in your hand when you hit him? Show the jury how you held it when you hit him? A. Had it by the top. Q. How many times did you hit him? A. I think about twice. Q. And who opened the door and took him out? A. I don’t know as to that, because I was scared, and I don’t know just exactly — somewhere—Q. Who took him out of the car? A. I guess I took him out myself, because there was no one there, must took him out. Q. Well, was he dead or alive when you took him out? A. I don’t know what shape he was in, I don’t know whether he was dead or alive. Q. Well, he was absoutely helpless, wasn’t he? A. He may have been able to help himself, but then he didn’t say anything to me. Q. Well, how did he get him out of the car? A. I got him out and laid him on the ground. * *■ *”

Under the evidence it appears that defendant, his brother, and deceased engaged in a drunken row, deceased apparently being the more completely intoxicated of the three; that in such row he was struck by defendant on the head and killed. There were no eyewitnesses other than the participants. The circumstances and physical facts surrounding the killing and the testimony and statements of defendant and his brother make a case of manslaughter in the first degree, the minimum punishment for which was fixed by the jury.

The jury no doubt concluded that the testimony of defendant and his brother was as favorable as the facts would warrant. Where the evidence is such that the jury may reasonably and logically arrive at the guilt of a defendant, although it may be conflicting, or different inferences might be drawn, this court will not substitute its judgment for that of the jury, but will affirm the case.

The case is affirmed.

DOYLE, P. J., concurring.

DAVENPORT, J., absent, not participating.


text:
    Ex parte CHARLIE STRADER.
    No. A-6692.
    Opinion Filed July 11, 1927.
    (257 Pac. 1112.)

      J. Earl Smith, for petitioner.
    Edwin Dabney, Atty. Gen., and C. C. .Suman, Co. Atty., for respondent.
   EDWARDS, J.

This is a proceeding for habeas corpus in which petitioner alleges that he is illegally restrained of his liberty by the sheriff of Payne county. The case is submitted upon the verified petition and a stipulation and agreed statement of facts. It appears that on February 1, 1927, petitioner stood charged in the county court of Payne county, in cases numbered 4751 and 4760, with violations of the prohibitory liquor law; that he entered a plea of guilty in each of said cases, and on such pleas of guilty judgment was entered in each case assessing a fine of $125 and costs, and imprisonment in the county jail for 30 days. The judgment in case No. 4760 further expressly provided that the jail sentence therein imposed should run concurrently with the jail sentence in case No. 4751. Petitioner thereupon paid the fine and cost in each of said cases in full. More than four months later, on June 6, 1927, the petitioner again was brought before the said county- court in case No. 4760 and a further judgment entered, in part, as follows:

“* * * It is therefore ordered, adjudged, and decreed' that the order heretofore made, ordering that the sentence be served concurrently, be changed and modified, and it is now ordered that the sentence heretofore imposed upon the defendant Charlie Strader, be served consecutively instead of concurrently. * * *”

It further appears that petitioner has served the full term of 30 days prior to the filing of his petition.

In the case of In re Walter Bell, 34 Okla. Cr. 354, 246 P. 893, this court had under consideration the question whether or not two or more sentences assessed against an accused must run concurrently or consecutively. In that case, this court in construing sections 2303' and 2774, Comp. St. 1921, said:

“* * * These sections are pari materia, and are to be construed together so as to give effect to each section. Section 23’03 is mandatory in form, and Was evidently enacted so^that the sentence where two or more convictions were had before sentence was pronounced should run consecutively and not concurrently. * * * Section 2774 has much the same meaning as section 2303, except the provision that the sentence pronounced on the subsequent conviction may commence at the expiration of imprisonment of any other offense instead of must commence at the termination of the prior sentence. To construe the two sections together, and give each meaning it is evident that, where a sentence upon a second or subsequent conviction does not state when it shall commence, under section 2303 it must commence at the termination of the prior term of imprisonment, or, if the court passing sentence where there has been a conviction of two or more offenses shall specify cumulative or consecutive terms in the judgment, as provided in section 2774, then the second or subsequent terms shall also commence at the expiration of the prior term. But, in the provision of the latter section that the judgment of imprisonment may commence at the expiration of the prior term of imprisonment, there is the implied power conferred on the court passing such sentence that he may either have it commence at the termination of the prior sentence or may have it run concurrently with the prior sentence by so stating in the judgment. Ex parte Ray, 18 Okla. Cr. 167, 193 P. 635; Ex parte Smith, 33 Okla. Cr. 175, 242 P. 284.
“Here, it being specifically and definitely stated in the judgment that the sentences run concurrently, the- term of imprisonment in cases Nos. 115 and 116 were served at the same time as the sentence in case No. 114. They all took effect alike, and have all been discharged by imprisonment. * * #99

This, we think, is the correct rule, and no reason for modifying it is suggested. Here, however, more than four months after the judgment and sentence in these cases had been assessed and after the term of court had ended, the court attempted to modify the judgment in No. 4760 by having it run consecutively, following the judgment in case No. 4751. This may not be done. When a judgment is rendered, the clerk must enter the same upon the minutes, stating briefly the offense for which the conviction, was had. Section 2777, Comp. St. 1921. The judgment is final when pronounced by the court as when it is entered and recorded by the clerk, as required by the statute. 15 R. C. L. 677, S. 128 F.; Ex parte Howard, 2 Okla. Cr. 563, 103 P. 663; Jones v. Territory, 4 Okla. 45, 43 P. 1072.

Even if the general rule applicable to judgments that they may be revised or changed during the term of court at which they are assessed applied to judgments in criminal cases, yet it is well settled that where a defendant has executed or entered upon the execution of a valid sentence the court cannot, even during the term in which the sentence was rendered, set aside and render a new sentence. See 16 C. J. p. 1314, § 3096, par. 1, where many authorities are cited in support of the text in which the rule is announced. The court at a subsequent term, as a general rule, in the absence of some statute authorizing it, is without power to modify, amend, or revise a valid judgment. To do so violates section 21, Bill of Rights, which forbids that an accused shall be twice put in jeopardy for the same offense. Rupert v. State, 9 Okla. Cr. 226, 131 P. 713, 45 L. R. A. (N. S.) 60, and Ex parte Myers, 12 Okla. Cr. 575, 160 P. 939. Where a court in such case attempts to modify the judgment, his act is void and does not affect the original sentence. 16 C. J. p. 1315, par. 3099, notes. See, also, Ex parte Friday (D. C.) 43 F. 916; Elsner v. Shirgley, 80 Iowa, 30, 45 N. W. 393.

A judgment, of course, may -be .corrected by .proper; order nunc pro tunc, but a new. and 'different. j udgment cannot be entered.

The writ- is awarded .and the petitioner; discharged.

DONLE,"P. X*,"concurring.

DAVENPORT; J’.j absent; not .-participating*


author: BOYLE, P. J.

text:
    THOMAS COBB v. STATE.
    No. A-6195.
    Opinion Filed July 12, 1927.
    (257 Pac. 1111.)
    Virgil E. Riddle, for plaintiff in error.
    The Attorney: General ;andJ. H. , -Lawson,. Asst.;• A tty; Geh., for the State-.
   BOYLE, P. J.

Plaintiff' ift'-hrrdraiT-hom'a's Oóbb; was tried and convicted on an information* charging': 'grand larceny and-his punishment: fixed* at imprisonment-for one: ydah and Che d^'lh thé^p'éhítéhtiaryi'; Frohii’fke’’-"jtidgment rendered qh.Per-fected .by- filing in, this: co ur t - on- April 21 ¿1926* fa; peti ti on in error with case-made. On May 24, 1927, the cause was submitted on briefs.

Since the final submission, suggestion of the death of plaintiff in error has been made, and his counsel of record for this reason filed a motion to abate, stating that plaintiff in error died on June 20, 1927.

In a criminal action the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death. It is therefore considered and adjudged that the proceedings in the above-entitled cause, and especially on the judgment therein rendered, do abate. It is so ordered, and the cause remanded to the district court of Okmulgee county, with direction to enter its appropriate order to that effect.

EDWARDS and DAVENPORT, JJ., concur.


text:
    WADDIE HUDSON v. STATE.
    No. A-5989.
    Opinion Filed July 16, 1927.
    (258 Pac. 352.)

      W. J. Crump and Gus Seawel, for plaintiff in error.
    M. B. Cope and J. T. McIntosh, for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter, called defendant, in the district court of Cherokee county was convicted of receiving deposits in an insolvent bank, and was sentenced to serve a term of five years in the state penitentiary, and to pay a fine of $5,000.

Several assignments of error are argued in the brief, which will be considered in the order presented.

The prosecution is based on section 15, chap. 6, p. 132, Session Laws 1907-08, being section. 4128, Comp. St. 1921.-The first contention is that this section was repealed .by implication by chapter 22, Session Laws 1913. It is argued that the 1913 act is a revising act, intended as a substitute for, all former acts. and, covering,, fully,.the, subject, of banking..

-TheTitl'eTb the latter'¡act iá' "ás follows’:* '

"An act amending sections 1, 2, and 3 of chapter 31 of the Session Laws of Oklahoma, 1911, and, section 3 of article 2 of the Session Laws of Oklahoma, 1907-08; providing penalties for the violation of the banking 'laws of this, statp, , and,.providing punishment therefor; and, <Jedar-s ing an emergency.”

' .'It is, evident tfat tHp prirpose. pf this' act?':ap expressed ip the title,..is. to 'amend three .sections-of,the act of 1911, and'-one section of-the <act-;of- 1907-08, and to provide- penalties for violation of the banking' laws. An examination of, the .provisions of. the act .-discloses- that, it-remodels, amends, and clarifies several of the criminal statutes rela? tive to banking, but it does not cover the entire field. The title'itself precludes the idea that'it'covers the entire subject of banking; or is intended to supersede,' repeal, of amend any of the provisions of the laws of 1907-0-8, Or the laws , of 1911, except as specified or That it intended to- provide penalties for the violation of, all banking laws of the state. It doés hot mention the law TeMtivri'to ihalcing a false report to The banking commissioner,; nor/the-crime of larceny by an .active, ,.managing, officer, ,of. a.bgnk.inbor-rppdng:frpm;hrs bapk, p.qr.the.crime of,receiving-doposits in,an insolvent bank,, the offense here.charged*.-apd/yrethink there was no intention; .t.o: repeahit. t Nor d,oes the.l913! act cover, the offense charged, and the act of 1907-08 defining the offense'' of' receiving, deposits'. in!‘ah'dhkólvOfit bhn'k. is, in full force"and"effect.' f'r ,,Si !li'- ,n , -.

Repeal's '‘by- implication’ áfé'hdt favbrOd; arid' will not bé - ad judged'' urilegs it :¿bctósafiiy’í-fo!&o''^','''írdfeu‘-í:l#>Tán^' güage used.' -'The JphesrimpfiOn ds agaihst the'intention- td fbpbál'-uriieás ¿¿predscfenris'are -used.41 ’ Rafticúldriíy''is^fhís true’ whére'T he Two1‘acts-áre; riot 'ifrieboriciláblé: Or heéés^ sarily inconsistent, but both may be made to stand together. Huston v. Scott, 20 Okla. 142, 94 P. 512, 35 L. R. A. 721 ; 25 R. C. L. 918, 919, 921; Chew Heong v. U. S., 112 U. S. 536, 5 S. Ct. 255, L. Ed. 770.

From the record it,appears that defendant, was president, a director, apd an -active, .managing,,officer.. Ete wias in the bank both, in the; forenoon, and; afternoon, of the day the offense is charged, but was,not present when the particular deposit' was received by the 'cashier; Counsel earnestly insists thak since the .statute ;upon which the prosection was predicated, section 412-8, supra, provides that any officer, etc., who shall knowingly violate the provisions of this section, ’or be' accessory to Or permit or connive at receiving or accepting, shall be-guilty of a felony, that four separate offenses are created. First, accepting'or receiving. Second, .being accessory; to ¡acs cepting pr receiving. Third, permitting- an accepting, or receiving. Fourth, conniving at an accepting or receiving. That since defendant was charged with accepting and receiving he cannot be convicted where the proof shows, if any’ offense wias committed," it was'" some other of the enumerated offenses." In support of this contention, defendant, cites: State v. Warner, 60 Kan. 94, 55 P. 342 Ex parte Rickey, 31 Nev 82, 100 P. 134, 135 Am. St. Rep. 651; State v. Wells, 134 Mo. 238, 35 S. W. 615.

These'cases support-the cohtentioriniade: -The Warner’Case is -under a statuté almost' identical; With our statute.-: In this state, however, the distinction'between an accessory and a principal has been-'abolished; Section 1521, Comp. Stat. 1921. Under this provision;^ -One w|ho conilives at, aids, assists, abets,- or- encourages the receiving’ Of - á deposit • in - an insolvent bánk, knowing ¡it to be insol ventáis nót prósécüted as ah accessory but as a principal. SO-far as we are able'to- learn at thetime those opihiOns were rendered in the Kansas- Nevada, and Missouri bases Cited, the - 'statute- Abolishing - the -distinc-i tioh between princ-ipal and accessory was not In fore© in those states. These decisions are therefore not applicable. This court, in the case of Appelget v. State, 33 Okla. Cr. 125, 243 P. 251, held:

“Where the managing officers of a bank, with knowledge that it is insolvent, permit the bank to * * * receive deposits by its employees, they are guilty of accepting and receiving deposits within the meaning of the law, although they do not personally receive the deposits.”

This holding was reaffirmed in the case of White v. State, 36 Okla. Cr. 57, 252 P. 456, and is supported by numerous authorities. See 3 R. C. L. 497; State v. Mitchell, 96 Miss. 259, 51 So. 4, 26 L. R. A. (N. S.) 1072, Ann. Cas. 1912B, 309; State v. Cramer, 20 Idaho, 639, 119 P. 31; State v. Eifert, 102 Iowa, 188, 65 N. W. 309, 71 N. W. 248, 38 L. R. A. 485, 63 Am. St. Rep. 433; State v. Shove, 96 Wis. 1, 70 N. W. 312, 37 L. R. A, 142, 65 Am. St. Rep. 17.

Complaint is next made that the court admitted incompetent and immaterial testimony prejudicial to defendant. Under this assignment various items of testimony are challenged as inadmissible. In one instance the witness Patton for the state was asked, concerning $20,000 worth of paper ordered taken out of the bank, whether or not such order was equivalent to an assessment. It is insisted this calls for a conclusion and assumes that such an order was made, and on this subject several other exceptions are presented. The state also after preliminary qualification offered the testimony of several witnesses as to the reputation for solvency of various persons whose notes were in the assets of the bank, and their opinion of the value of such notes. Evidence was also offered as to the amounts realized upon the security of certain notes and various other matters in reference to the value of the bank’s assets. The main issues for the determination of the jury were: Was the deposit in question received as alleged? Was the bank insolvent at the time? Did defendant have knowledge that it was insolvent? The matter of solvency of a bank and the knowledge of its solvency or insolvency can hardly be proven by the hard and fast rules of evidence. As a consequence there has been a softening of the strict application of the rules of evidence where it is sought to prove these and like matters. In such cases matters of opinion, reputation and, in a sense, hearsay, are permitted.

It is a general rule that the value of assets of a failed bank may be testified to by any person showing some knowledge of the financial reputation of the parties liable on such assets or the securities behind them; at or about the time to which the inquiry is directed. 3 R. C. L. 493; State v. Welty, 65 Wash. 244, 118 P. 9; Mathews v. State, 19 Okla. Cr. 153, 198 P. 112; Appelget et al. v. State, 33 Okla. Cr. 125, 243 P. 251; White v. State, 36 Okla. Cr. 57, 252 P. 455; Town of Sallisaw v. Priest, 61 Okla. 9, 159 P. 1093; St. Louis, etc., Ry. Co. v. Weldon et al., 39 Okla. 369, 125 P. 8; Fire Ass’n, etc., v. Farmers’ Gin Co., 39 Okla. 162, 134 P. 443.

We have examined the various matters urged under this assignment and under the liberal rule of evidence applicable on questions of this kind, find no substantial error.

Error is further argued that the court excluded competent and relevant testimony offered by defendant. The record in this case is extremely voluminous, consisting of two volumes aggregating 1,500 pages. It is therefore impossible that we should discuss the many objections called to our attention. Several objections of the state to the testimony offered were sustained and are pointed out in the ■brief. The witness Freer, liquidating agent for the bank, was asked by defendant’s counsel on cross-examination concerning a suit on a certain note why he did not have the defendant; and' the -cashier of the. bank as.witnesses.. The value; of this; note -as an ..asset of the- bank' was ■ material. ; ¿Why * ithe'se •- particular ¡ witnesses!) were not ¡ used:'-¡was. ■ not material:' The-maker, of the-note-, however; was on the • stand- arid'testified that .the: note fiad-'no. value, ¡as ¡did two - or; three, other witnesses > testifying to > the.. value of 'assets. Ballenger, cashier of. the bank, Was asked on cross-examina- • tion if defendant did not-make loans at. his.place, of business, away from the bank, giving his personal check to the borrower, instead, of having the borrower go to the .bank for'the .money.“ It had been shown by the state that the- proceeds of various loads had gone’ to the ,credit of defendant’s account. ; This'evidence would havebeen highly material if theguestion had been diréctéd .tó any of .these 'transactions, but it( was not so limited.'fit'was not im'p.ortant.th'atj the,defendant made other valid tr'hnsactiops, and évidénce as tó them would hot be .relevant. ’ Various ' other objections to the introduction .of evidence is pointed out..’ ,p,n the. whole,' .however, w$ think the' court was fair-Íys .liberal ,in permitting, the introduction of evidence, arid that there cannot be said to be the exclusion ,c>f any material evidence offered by defendant prejudicial to him.

1 ! ’' Tt‘ !í's’; á!ísó'. üfgéd’ that' the e^iíiéndé ‘dóris’ nbt sustain the .verdict; that át the' time'thé'bahh'eldsed^ its‘assets ktid liabilities ‘‘were'the sáriie, approximately $5b,000, as’ shótv'n by the books of the bank; that the value of the bank’s aásefs wg.s npt, impeached by; witnesses..baying. fhe;; required in-■;f1ormatiqp!,l ;This i§ largely a.qpe^tiqn of fact upder .allfb® , evidence,,and we.find an abundance of evidence to sustain the .vqrdict.; ... ;; o-!-;'; ¿.¿v,,?, '.¿¡‘¡W,',. ,J¡

Wb 'd’o ’hdt bVéHoo¿> the bikim!rthat theMnstirictioris ' ábfe 'érrdriebuú,' but we:háyé ?éxaihih'édj:them1! fully'arid'■'fin’d that-'as Achole1 they" fairly ;átaté"-the5 láw- krid: ebntaiif rio 'éfrbr thkt'a'mdUrits tdWstibétrintiáT prejudice.' ’-' <! >! '•*

... ¡ Tbp ^erdicjt is,challenged as vague, indefinite, and uncertain. it is m 'the 'following' form: " ‘ "

_ “We, the jury:, duly impaneled and sworn in the above-entitled action, do upon our oaths .find the .defendant guilty óf receiving deposits in the Farmers’ State Bank' of Park Hill while thé said bank was insolvent as charged in the information; and fix his punishment at imprisonment in the state penitentiary for a term of five years and a fine: of $5,000.00.”

• .Where an information charges a crime which, includes other offenses- of lesser degrees of the crime charged,- the verdict must be ¡sufficiently definite that the court may ascertain the, particular offense or included offense for which a defendant is convicted and pronounce the proper sentence. Clemons v. State, 8 Okla. Cr. 452, 128 P. 739; Sanders v. State, 13 Okla. Cr. 134, 162 P. 676. E In the Clemons Case, defendant was charged with an, assault with intent, to, kill. Included in- that charge, are,some four or five other assaults for which defendant might have been convicted. The verdict returned found the defendant “guilty of assault with a deadly weapon, as charged in the information.” In the Sanders 'Casé, being also a charge of assault with intent to kill, the jury returned a verdict finding the defendant “guilty" as charged in -the information of the crime of aggravated assault.” In neither of these cases was the verdict sufficiently definite for the court to\ determine' which assault defined by the statute the jury intended to convict the defendant. This objection does .not obtain as to the verdict above set. (out. .There are no included.or lesser degrees of thé offense of receiving deposits fin án insolvent bank. All that is required in a verdict is that from an examination of it and the record, the1 intent and purpose of the jury may-be clearly ascertained. Bowlegs v. State, 9 Okla. Cr. 69, 130 P. 824; Fowler v. State, 26 Okla. Cr. 170, 223 P. 206; Stansell et al. v. State, 30 Okla. Cr. 265, 235 P. 937; Nelson v. State, 34 Okla. Cr. 137, 245 P. 1009; Pruitt v. State, 17 Okla. Cr. 434, 190 P. 894.

No objection was made to the verdict when réturned. If the form of the verdict is not sufficiently-definite1-and the attention of the court is called to it at the time, an opportunity is thus given for its correction. When this is not done, the objection will be deemed to have been waived if by fair intendment and inference the intent and purpose of the jury, as expressed in their verdict, may be gathered from the record.

Several instances are set out in the brief wherein it is claimed the court during the course of the trial made prejudicial remarks. In one instance counsel for defendant requested the production of a note referred to in the evidence. The court in response said: “Certainly, I haven’t got it.” Defendant then asked the court to require the state to produce it, and the court said: “'Go ahead, I ¡don’t know of any rules that require them to produce it.” Again, while counsel for the state was examining a witness in his answer, the matter of double liability was mentioned, and the following took place:

“* * * Mr. Crump: The double liability is not a part of this transaction?
“The Court: I don’t see anything funny about this; sit down, Mr. Crump.
“Mr. Crump: I except, Mr. McIntosh is trying to keep—
“The Court: Sit down.
“Mr. Crump: I will have to sit down if you order me to.
“The Court: Go ahead. * * *”
At another point in the trial this occurred:
“* * * Mr. McIntosh: Q. The jury will observe that all of this—
“Mr. Crump: Object to that.
“The Court: You’ve been doing that all day.
“Mr. Crump: I don’t know that I have, but I object to his doing it.
“The Court: You spent about six hours at it to-day.
“Mr. Crump: I except to the remarks of the court that I spent six hours saying things to the jury that was not correct.
“The Court: You may except. * * *”
Again a colloquy arose in reference to a question on cross-examination by the state, in these words:
“* * * Mr. McIntosh: I am trying to get the facts.
“Mr. Crump: You are trying to confuse them.
“The Court: I don’t want to hear any of this foolishness. Go ahead. * * *”

Some other slight matters were set out as claimed unfair treatment by the trial judge. This court has uniformly said that a person accused of crime, whether guilty or innocent, is entitled to a fair and impartial trial; that the trial judge shall not comment upon the weight of the evidence, the credibility of the witnesses, or otherwise indicate his opinion as to the guilt or innocence of a defendant. We have repeatedly reversed cases for comments of the trial court which might indicate the disapproval of the judge of counsel or Witnesses, or a defendant. The trial of one charged with a crime is a serious matter. The trial judge should not permit himself to be facetious or lacking in courtesy. A proper exercise of judicial temperament will render unnecessary any contention with counsel. The statement of the court when the request for the production of a note was made, that, “Certainly, I haven’t got it,” is lacking in dignity.

The direction to counsel for defendant to be seated while the state counsel was examining a witness was in the exercise of a proper control of the proceeding. Counsel had not objected to the introduction of evidence, but had interposed a statement which called for an interposition of the court. The colloquy between court and counsel that he had ■been saying things to the jury was improper. It is the duty of counsel to object courteously, to any testimony he may for any reason deem inadmissible. When the objection is made,'it is the duty of the court to rule; counsel,- if he choose, may then except. It is impossible, however, in the course of a lengthy trial, where the zeal, of parties and counsel tends to cause them in some'instances to overstep the line of'decorum and propriety,- to in all cases refrain from becoming testy, particularly where the ease is prolonged, the record voluminous, and the. questions of lav/ andi fact often extremely technical. The duty of the court is difficult.’ In such casé he is a mediator between sharply contested - interests, urged by skillful ádvocates, and' it is natural that there should occasionally be’some break in the orderly procedure■that should be.observed, or some statement..not strictly judicial. To warrant ia;reversal, however, the .lapse should be sufficiently serious -as to have probably materially prejudiced the accused.- -The matters complained of; here . are-not, we, think, of such gravity that they affected the result-, of the trial or prevented defendant from having a fair and impartial trial. . ■ : ,; :

' Thátthé vérdict is excessive ."is árguéd |áínong the cohcludihg' ássighníerits of error. ‘ In View of the entire record, we have reached the, conclusion that the verdict is excessive.1 The record does not show a casé óf looting the bank by defendant for his own benefit,' but rather a continuation to: operate it in violation of the law after it had become clearly insolvent. '' ' ; 1

, - ¡Justice requires. that the, punishment assessed ..should be reduced to confinement in the state penitentiary for a term of two years and by a. fine of $2,500, and, as modified, the' judgment ’is’ affirmed. _ • - ‘■ ; ^ ■' _' , i

DOYLE, ;P. J., concurs...

DAVENPORT, J., absent, not participating.


author: EDWARDS, J.'

text:
    JOHN DOLEZAL et al. v. STATE.
    No. A-5874.
    Opinion Filed July 16, 1927.
    (257 Pac. 1117.)
    J. L. Trevathan, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.'

The plaintiffs in error,' hereinafter called defendants, were convicted in the county court of Canadian county on a charge of having the possession of mash fit for distillation and were each sentenced to pay a fine of $50 and to sefve 30 days in tbe county jail.

The principal contention made in the' brief is that, the evidence being circumstantial, it is not sufficient to exclude every other reasonable hypothesis and not sufficient to'sustain the verdict. Tim case rests on the testi-móny of two officé'rs, 'who,1 With a search warrant, went to the residence of one Berry Nutt, in ah isolated' and out of the way community and difficult of access, in the southwest part of Canadian county near the ,brakes x>f| . the Canadian, and. there .found Nutt in a thoroughly intoxicated condition. They made a search’and ,^oun^,, no. .liquor about the premises, and while there defendants approached through the pasture in' a Ford car from the''direction of some waste land alopg. the. river. The officers, approached them, and the evidence indicates £bat,they ’started >tq, flee from the officers but were stopped. One of tbe officers f dllowed the car track'in’the direction from - which 'it had come to a fence on the river bank and there discovered where the car had stopped. About ten steps from this point, across the fence in waste land, they found a pump and six 5-gallon glass jugs, and about 30 steps from where the car stopped they found 12 barrels of mash, and leading from the point where the car stopped to the point where this was found were the tracks of some person or persons. Some loose bran was found in the back part of the car. Neither of the defendants took the stand or offered any testimony in their defense. The evidence is not strong, but, in the absence of any. explanation, is sufficient to sustain the verdict and judgment.

The case is affirmed.

DOYLE, P. J., concurring.

DAVENPORT, J., absent, not participating.


author: DOYiLE, P. J.

text:
    PEARL SMITH v. STATE.
    No. A-5910.
    Opinion Filed July 16, 1927.
    (257 Pac. 1107.)
    O. G. Rollins, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYiLE, P. J.

Plaintiff in error, Pearl Smith, was convicted on a charge of selling whisky to Asa Townsend, and, in pursuance of the verdict of a jury, was sentenced to pay a fine of $50 and to be confined in the county jail for 30 days.

The testimony of Asa Townsend is to the effect that on March 29, 1925, he purchased from the plaintiff in error one half pint of whisky, paying therefor $1.50. As a witness in her own behalf the plaintiff in error testified that she did not sell the whisky.

Upon the record in this case the sole question presented by the assignments of error is the sufficiency of the evidence to sustain a conviction. The testimony on the part of the state supports the allegation of the information. Upon the testimony of plaintiff in error the jury could have acquitted, but it was their province to decide the credibility and the weight to be given to the testimony of the witnesses.

Finding no material error in the record, the judgment is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


author: DOYLE, P. J.

text:
    MARSHALL GLASS v. STATE.
    No. A-5905.
    Opinion Filed July 16, 1927.
    (258 Pac. 286.)

      ,, ,.Anglin;&.,Stevenspn, for plaintiff,ip errorf
    ;l ' Edwin Dabney, Atty.-Gen., andiSmithG. Matson,- Asst. Atty. Gen.,' for the State. • n-..'' v; ;< • >: a .
   DOYLE, P. J.

Plaintiff in error was convicted on a chairge' that he did' Unlawfully ;b'ávé’;ih' his- possession a quantity of intoxicating' liquor, to wit,- -whisky;-and- iri accordance with the verdict hf the jury"he was sentenced- to pay a fine of $50,-and- to confinement- ih -tlie: county jail for 3© days.‘'To reverse'the,j'udgmenbhéi-app’éáísV! *'< v

The first, error assigned fop.rejyer^al.'is the .admission of evidence procured under a search warrant issued upon an Affidavit AVhieh was' hot sufficient to give the' justice of the peace jurisdiction to-issue. !

The record sustains this assignment.'By numerous decisions of this court it is held that liquor obtained by a search of defendant’s premises under a search warrant issued without authority of law for the sole purpose of obtaining evidence against him in violation of the Bill of Rights, § 30, guaranteeing security of- the people in their right to be exempt in their persons, houses, papers, and effects from unreasonable searches and seizure, is inadmissible against him. Russell v. State, 25 Okla. Cr. 423, 221 P. 113; Foster v. State, 27 Okla. Cr. 270, 226 P. 602; Cudjo v. State, 34 Okla. Cr. 199, 245 P. 906.

'■ít'alsd; appea!fs‘!tkat,;the evidencej^s' ,'ihkufficient to sustáin the allegations of the information. The judgment of the lower court is therefore reversed.

EDWARDS-and-'DAVENPORT,'-JL,'!<con'cür


text:
    TOM WELLS v. STATE.
    No. A-5904.
    Opinion Filed July 19, 1927.
    (258 Pac. 285.)
    Roy White and Anglin & Stevenson, for plaintiff in error.
    Tht Attorney General, for the State.
   DOYLE, P. J.

The information in this case charged that on May 22, 1925, “Tom Wells did unlawfully transport a quantity of intoxicating liquor, to wit, five gallons of whisky, from a point in Hughes county unknown to a point on the public highway, about 300 yards east of the northeast corner of the town of Lamar.” The trial resulted in his conviction and his punishment fixed at a fine of $50 and imprisonment in the county jail for 30 days. To reverse the judgment rendered on the verdict he appeals, and assigns as error that the trial court erred in admitting incompetent evidence over his objection and in refusing to strike such evidence and in overruling the demurrer to the evidence of the state.

Sherman Thomas testified that he was ■ constable of Lamar township, and saw the defendant on the road northeast of Lamar, in a Ford car, driving towards Lamar; that Jack Kitchens and Ray Barton were with witness, and he stopped the defendant’s car; that he had never seen the defendant before and did not know whether there was anything in the car or not; that it was about 10 o’clock at night; that he searched the car and found a five-gallon jug in the car and it had whisky in it; that he did not have a search warrant.

Jack Kitchens testified that he was with Constable Thomas, and helped him search the car, and they found! a five-gallon jug with whisky in it in the car.

The testimony of the two officers was admitted over the defendant’s objection that the same was incompetent as having been obtained by an unlawful search and seizure.

At the close of the state’s case the defendant moved for a directed verdict of acquittal on the same ground, which was overruled.

The fact that the defendant was transporting intoxicating liquor not being discoverable -without a search, the offense of transporting it was not committed in the presence of the officers, and they had no authority to arrest the defendant therefor without a warrant.

That all the evidence offered by the state was incompetent is not open to question under the decisions of this court. It has been repeatedly held that no search of the person, or seizure of any article found thereon, can be made on mere suspicion that the person is violating the prohibitory liquor laws by having intoxicating liquor in his possession without a search warrant, unless and until the alleged offender is in custody under a warrant of arrest, or shall be lawfully arrested without a warrant as authorized by law. Keith v. State, 30 Okla. Cr. 168, 235 P. 631; Graham v. State, 31 Okla. Cr. 125, 237 P. 462; Gower v. State, 34 Okla. Cr. 149, 245 P. 67; Whitford v. State, 35 Okla. Cr. 22, 247 P. 424.

We hold, therefore, that the evidence challenged in this case was obtained by the officers by unlawful search and seizure and contrary to Bill of Rights, § 30, and was improperly received in evidence against the defendant in violation of his rights under section 21, Bill of Rights.

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

EDWARDS and DAVENPORT, JJ., concur.


text:
    ARTHUR SOWARDS v. STATE.
    No. A-5906.
    Opinion Filed July 19, 1927.
    (258 Pac. 284.)
    Anglin & Stevenson and Forrest M. Darrough, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

In this case the information charges that in Hughes county, June 27, 1925, “Arthur Sowards did unlawfully sell intoxicating liquor, to wit, one quart of whisky, to T. L. Dilday.” On the trial the jury found him guilty and fixed his punishment at a fine of $50 and imprisonment in the county jail for 30 days.

The errors assigned question the sufficiency of the evidence to sustain the verdict and judgment.

The evidence shows that appellant and the prosecuting witness, T. L. Dilday, were arrested some two or three miles southeast of Holdenville by Dan Narcomy, deputy sheriff, and he found a quart of whisky in the bosom of Dilday’s shirt. Dilday testified that he met the defendant on the sidewalk at Holdenville and told him he was feeling badly, and the defendant told him he could get him a little something to drink; that he got into the defendant’s car and the defendant drove southeast of town, some two or three miles, stopped his car, got out and went up a hill and brought back a quart of whisky in a half gallon fruit jar and he stuck it in the bosom of his shirt and promised to pay the defendant $2 therefor; about that time the officer came up and arrested them.

On cross-examination he stated that his case was pending in the county court; that he had never hired any counsel to represent him, though the case was set for trial; and that he could not recollect what the county attorney said that he was going to do about his case.

It seems that upon the conviction of this defendant, the case against the witness Dilday was dismissed.

As a witness in his own behalf the defendant testified that he was 48 years old; lived southwest of Holden-ville, in Seminole county; had known T. L. Dilday seven or eight years; met up with him that day in Holdenville; that Dilday told him that he knew where some stuff was on the side of the road, and asked him to drive him out in his car; that when they got out there Dilday got out of the car and found the whisky which he had told him about and put it in the bosom of his shirt; that as he was trying to get the car started the officer came up and found the whisky on Dilday’s person and they were both arrested; that he had never offered to sell any whisky to Dilday, and had never sold him any whisky; that he had never before been out that way from Holdenville; that he had never before been arrested.

While the cases are rare in which this court will inter - fere to disturb the judgment of the trial court, we think that in this case the testimony of the witness Dilday was in the nature of accomplice testimony, and for this reason We think the motion for a directed verdict should be sustained.

The judgment of the lower court is therefore reversed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    BILLY WILSON et al. v. STATE.
    No. A-5846.
    Opinion Filed July 19, 1927.
    (257 Pac. 1117.)
    Matson & Mathers, for plaintiff in error.

      The Attorney General, for the State.
   DOYLE, P. J.

The plaintiffs in error were tried and convicted on an information charging that in Carter county, February 18, 1925, they did have in their possession 14 three ounce bottles of whisky, with the unlawful intention of selling the same. On their trial the jury returned verdicts finding them guilty as charged, and fixing the punishment of each at a fine of $75, and imprisonment in the county jail for 30 days. From the judgments rendered on the verdicts they appeal.

The errors assigned relate to rulings of the court in the admission of evidence, and question the sufficiency of the evidence to sustain the convictions.

The evidence shows that officers executing a search warrant issued against a drug store in the town of Rexroat, operated by the defendants, and the residence of the defendant Sheaf or, adjoining such drug store, found 15 three-ounce bottles containing corn whisky, in a garage attached to the drug store. The defendants were both present at the time. The defendants did not testify.

We think the evidence is ample to sustain the verdict, and, finding no error prejudicial to the substantial rights of the defendants, the judgments appealed from are affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    J. T. CASTLEBERRY v. STATE.
    No. A-5902.
    Opinion Filed July 19, 1927.
    (257 Pac. 1116.)

      Anglin & Stevenson, for plaintiff in error.
    The Attorney General, and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

J. T. Castleberry was convicted on a charge that he did have possession of a quantity of intoxicating liquors, to wit, whisky, with the unlawful intent to sell the same, and, in accordance with the verdict of the jury, he was sentenced to pay a fine of $50 and to confinement in the county jail for 30 days. From the judgment he appeals and assigns as error that the verdict is contrary to law and the evidence; that the court erred in admitting incompetent evidence. , i

An examination of the record discloses that the testimony of the witnesses for the state is not disputed. Obviously the jury refused to believe the defendant’s explanation of his possession of the whisky in question.

The record fails to show any exceptions taken during the course of the trial to rulings of the court on the admission of evidence, and the instructions fully stated the law applicable to the case.

Finding no error in the record, the judgment is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    F. E. CROSBY et al. v. STATE.
    No. A-5693.
    Opinion Filed May 14, 1927.
    Rehearing Denied July 23, 1927.
    (257 Pac. 1113.)
    Brown Moore, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error were convicted in the county court of Payne county on a charge of gambling and were each sentenced to pay a fine of $25 and to serve ten days in the county jail.

The evidence is brief, and in substance is that the plaintiffs in error were shooting craps on the floor of a shining parlor, and that certain officers came and the dice were thrown under a seat and some money on the floor was covered by the foot of one of the parties, but was discovered and was taken in charge by the officers. The proof of the actual playing of the game is largely circumstantial, although a witness who was in business next door, which was in the room occupied by the shining parlor, but separated by a beaver board, gave direct testimony. The plaintiff in error Crosby was outside the building, and at the approach of the officers slapped the closed door of the building, apparently as a warning to those inside.

It is argued that the going to the place by the officers and entering the building was an illegal search. To this we cannot assent. The offense was committed in a public place, open to the public, and the mere going into the building was not such a search as required a search warrant.

It is also argued that the evidence is insufficient. While, as stated, the evidence is circumstantial, it is such that the jury might logically and reasonably conclude that the plaintiffs in error were guilty as charged. Under the circumstances shown, however, we think the punishment is excessive, and the judgment is modified to omit entirely the-jail sentence imposed, and, as modified, the judgment is affirmed.

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


author: DOjYLE, P. J.

text:
    DOCK CRINER v. STATE.
    No. A-5745.
    Opinion Filed July 23, 1927.
    (258 Pac. 359.)
    Roland & Robinson, for plaintiff in error.
    The Attorney General, for the State.
   DOjYLE, P. J.

In the information, appellant, Dock Criner, and Elmer Sanders were charged jointly with the theft of one Cadillac car, the property of Gus Key. Upon his separate trial, appellant, Dock Criner, was found guilty; the jury leaving his punishment to be fixed by the court. Motion for new trial was duly filed and overruled. On February 13, 1925, the court pronounced judgment and sentenced the defendant to imprisonment in the penitentiary for a term of ten years.

From the judgment, an appeal was attempted to be taken >by filing in this court, on August 14, 1925, petition in error with case-made.

When the case was called for final submission, the Attorney General moved to dismiss, for the reason that the attempted appeal was not lodged in this court within six months from the date of the judgment attempted to be appealed from.

Under the provisions of our Code of Criminal Procedure, an appeal in a felony case must be filed in this court within six months after the judgment is rendered. When not filed within that time, this court does not acquire jurisdiction and the appeal will be dismissed. Musick v. State, 5 Okla. Cr. 608, 115 P. 377; Kanamaya v. State, 6 Okla. Cr. 208, 118 P. 151; Washington v. State, 32 Okla. Cr. 392, 241 P. 350.

For the reason that the appeal was not filed within the time prescribed by the statute, the attempted appeal is dismissed, and the cause remanded.

EDWARDS and DAVENPORT, JJ„ concur.


text:
    JAMES CHOATE v. STATE.
    No. A-5869.
    Opinion Filed July 23, 1927.
    (258 Pac. 360.)

      Welch & Welch, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pushmataha county on a charge of murder and was sentenced to life imprisonment in the state penitentiary.

On the night of April 4, 1925, a difficulty arose between deceased and defendant in which deceased was shot, from the result of which he died. Deceased had announced a dance to be held at his house on the night of the homicide. Defendant had been married about a week and a charivari dance was announced for his place for the same time. The young people of the neighborhood gathered at defendant’s home. Deceased was angry at this circumstance and with one Homer Prinoé went to defendant’s house, and he sent Prince in to ask one Roy Upton to come out where he was, as Upton had promised Bohanan that he would bring some girls to his house that night, but apparently the girls were unwilling and they with Upton had gone to defendant’s instead. Bohanan was drinking at the time and there is evidence that when under the influence of liquor he was quarrelsome. When Upton told Bohanan the girls would not come to his house it angered him and he attempted to assault Upton with a knife, but was quieted down, and Upton returned to the house and took the girls out the back way toward their home, and they were about one-fourth of a mile away when the shooting occurred. Defendant became angered at Bo-hanhn for having interrupted the dance in that manner. Soon Bohanan came to the house and took a seat on the porch, defendant came to him and asked if his name was Bohanan, and he answered that it was “Jack Johnson.’' This answer was not satisfactory and the question was repeated, and there is some evidence that defendant told deceased, in substance, that he must cut out any rough stuff there. Bohanan’s brother then started away with him and he had gotten outside of the yard gate when one Palmore, a relative of defendant and jointly charged with him, intercepted Bohanan and defendant came up and some further words were passed. There is evidence that deceased had a knife in his hand, at this time defendant fired three shots which resulted in the death of Bohanan a few days later.

Complaint is made that the court erred in refusing certain instructions requested by defendant. These requests are four in number and go to the question of defense of habitation, or rather the right of defendant to expel deceased from his premises. It is, of course, well settled that a defendant in a criminal case has a right to a clear, affirmative instruction defining the law applicable to his defense where there is evidence upon the material issue reasonably tending to support it, based upon the hypothesis that his testimony is true. It is also a part of the law of self-defense that a person may resist any attempt of another to commit a felony upon or in any dwelling house in which he may be. That is to say, any person has the right to defend his domicile against an unlawful invasion and defend himself and those within it against violence. He is not required to retreat, and if it be actually or apparently necessary may take human life to prevent the commission of a felony upon or within said domicile. Collegenia v. State, 9 Okla. Cr. 425, 132 P. 375; section 1754, Comp. Stat. 1921. However, defendant was not entitled to an instruction upon this theory, for under the undisputed evidence deceased, at the time of the homicide, was not attempting to commit any felony upon or in the dwelling house of defendant. The law applicable to the defense of habitation does not apply.

There was evidence that deceased was drunk, was in an angry mood, and disposed to be quarrelsome, but he made no attempt to attack defendant. The fact was that deceased came there and had a quarrel with Upton and interfered with the dance, which angered defendant, and while deceased was leaving the premises, without any necessity to justify the taking of human life, defendant killed him.

Whether the killing was murder or manslaughter in the first degree is a close question on the facts, but the facts are for the jury. The verdict is supported by competent evidence and there is no reason apparent why this court should disturb it.

The case is affirmed.

BOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


author: D'OYLE, P. J.

text:
    TOM BAILEY v. STATE.
    No. A-5849.
    Opinion Filed July 23, 1927.
    (258 Pac. 358.)

      M. Bristow, for plaintiff in error.
    The Attorney General, for the State.
   D'OYLE, P. J.

Tom Bailey was convicted on a charge that he did unlawfully set up and keep in his possession to be used as a distillery a certain still for the purpose of using the same for the production of distilled spirits, whisky, and other liquors, and in accordance with the verdict of the jury was sentenced to pay a fine of $50 and be confined in the county jail for 30 days.

To reverse the judgment he appeals and assigns as error that the verdict is not sustained by sufficient evidence; that the court erred in admitting incompetent testimony and in giving certain instructions.

The ¡evidence shows that appellant is a farmer, living on an Indian lease 6 or 7 miles west of Anadarko, and had lived in that community for 10 or 12 years; that one R. P. Birdwtell was share cropping with him on the lease. They had a disagreement, and Birdwell came, to town and made affidavit for a search warrant against the place.

George Nixon, sheriff, testified that on Sunday night, about 11 o’clock, he met Birdwell on the courthouse steps; Birdwell stated he had a search warrant that he wanted served, and with two deputies and Bird-well he proceeded to appellant’s home and informed appellant that he had a search warrant, and appellant said, “All right, go ahead, help yourselves;” that Bird-well took him down the hill to a canyon and there pointed out a still, covered with leaves and brush; that it was very dark, but he had a flash light; then Birdwell showed them two empty barrels; that the still looked like it had not been used for quite a while.

To the same effect was the testimony of S. W. Townsend.

Joe Ryan, called as a, witness, was asked:

“Did you buy any whisky from Tom Bailey?”

The court overruled defendant’s objections, and the witness answered:

“I don’t remember whether I did or not.”

Motion to strike was overruled.

It appears that R. B. Birdwell absconded after the search was made.

For the defense, W. E. Smith, county commissioner, James Abshire, manager of cotton gin at Washita, and four other witnesses each testified that they were well acquainted with the defendant and knew his general reputation in the community in which he resides, and that reputation was good.

As a witness in his own behalf the defendant testified that Birdwell, the prosecuting witness, was making a share crop with him, and they fell out; that about midnight the sheriff came to his place and handed him a paper and said to one of his deputies, “Stay there with him until we get back,” and Birdwell went with the sheriff and the other deputy. When they returned, the sheriff said they found a still; that later he went to the place in a briar thicket, surrounded by cedars, a quarter of a mile from his house, and found the place they said they found the still, which was at least a quarter of a mile from his house; that he did not know anything about it, had never manufactured whisky, had never sold any whisky; that he did not own the barrels found; that he believes that Birdwell had gotten the outfit and put it there for the purpose of prosecuting him.

As against the state’s evidence, purely circumstantial, is the positive denial of the defendant of any knowledge whatever of the still or of it being at the place where found, which is supplemented by the testimony of six or seven disinterested witnesses as to his good character and reputation as a law-abiding citizen in the community for more than a decade. Also, the. fact that the complaining witness had absconded.

Where the evidence is so weak and unsatisfactory as in this case, the record should be free from prejudicial error, to avoid a reversal of the conviction.

The testimony of the state’s witness Ryan was incompetent under the rule that evidence of other offenses is admissible only when it forms a part of the res gestae, or shows or tends to show a particular intent or motive in the defendant’s connection with the offense charged.

The instruction on character evidence concludes as follows:

“But if you should be satisfied from the evidence, beyond a reasonable doubt, of the guilt of the defendant, as charged in the information, then, in that event and that view of the case, although you may believe that the defendant had a good reputation before or after the alleged offense wias committed, if it was committed, that would not alone avail him as a defense or entitle him to be acquitted by reason of such good reputation.”

The rule is that the defendant is entitled to introduce evidence to the effect that, up to the time when the offense with which he is charged was committed, he bore in the community in which he lived a good character or reputation, provided the moral qualities with regard to which the evidence is given have a definite relation to the offense with which he is charged. Good character is a substantive fact, and as such is to be w'eighed and considered in connection with all the other evidence in the case.

The probative force of good character depends upon the nature of the alleged crime and upon the quality of the inculpatory evidence. The cases in which it carries the greatest weight are those in which the testimony adduced in support of the charge is entirely circumstantial. However, the record here shows that no objection was made or exception taken to the giving of the instruction above quoted. Upon the whole case We are of the opinion that the verdict against the defendant was against the weight of the evidence, and that justice requires a new trial, whether exceptions had been taken or not in the court below.

For the errors indicated, the judgment is reversed and a new trial awarded.

EDWARDS and DAVENPORT, Jtf., concur.


text:
    TILFORD CAMPBELL v. STATE.
    No. A-5887.
    Opinion Filed July 23, 1927.
    (258 Pac. 357.)

      John P. Hickam, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, w'as convicted in the district court of Payne county on a charge of rape in the second degree and sentenced to serve a term of 2 years in the state penitentiary.

It is first argued that the court erred in denying defendant a new trial on the ground of newly discovered evidence. The prosecutrix testified that the act of intercourse occurred at the time of the meeting of a certain Farmers’ Union Local, which was attended by the father of prosecutrix, and the state offered testimony that defendant was at this meeting and after the father arrived left and went to the home of the prosecutrix. The testimony disclosed that the prosecutrix had given substantially the same evidence at the preliminary trial. Attached to the motion for a new trial was the affidavit of several persons, in substance, that defendant was not at the Farmers’ Union meeting during or preceding its session. This was not newly discovered evidence. From the time of the preliminary defendant should have known the state would offer testimony to this effect and should have been prepared to meet it. The claimed newly discovered evidence with slight diligence could have been procured at the trial. There is no showing of due diligence. A motion for a new trial upon this ground is addressed to the sound discretion of the trial court. The presumption is that the discretion was properly exercised. Unless there is an abuse of such discretion the ruling of the court will not be disturbed. The contention cannot be sustained.

The only other matter of complaint is that the court erred in admitting incompetent, irrelevant, and immaterial testimony offered by the state. The items of evidence complained of are probably admissible as tending to corroborate the prosetíutrix^, but even if incompetent they are unimportant and do not constitute material prejudice. Incompetent, irrelevant, and immaterial evidence which does not tend to prove or cast light on the offense charged and has no bearing on any legitimate issue, but which tends to arouse passion or prejudice, or which may warp or influence the judgment of the jurors, is prejudicial, and may constitute a proper reason for granting a new trial. This is not the situation here, however.

The case is affirmed.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


text:
    JOE WILLIAMS v. STATE.
    No. A-5735.
    Opinion Filed July 23, 1927.
    (258 Pac. 356.)

      Cad Mathis, for plaintiff in error.
    The Attorney General, for the State.
   BOYLE, P. J.

Plaintiff in error, Joe Williams, was found guilty of having illegal possession of intoxicating liquor, to wit, Choc beer, and his punishment assessed at a fine of $250 and imprisonment in the county jail for 90 days. To reverse the judgment he appeals.

The testimony of Frank Turnbeaugh, L. O. Short, and John Walden is that in executing a search warrant they visited the home of Joe Williams, and searched the place and found several gallons of what they called Choc beer, and two or three gallons of wine, and that they destroyed the beer and wine. It is admitted that no return, as by law required, was ever made on the search warrant. All the testimony for the state was admitted against the defendant’s objections that it was obtained on an illegal search warrant, based upon an affidavit made on information and belief. As a witness in his own behalf the defendant testified that the so-called Choc beer was not intoxicating liquor, but was a cooling drink for the use of his family.

Of the various errors assigned, we deem it only necessary to consider the one, that the court erred in permitting the state to introduce testimony to impeach the credibility of the defendant as a witness, by permitting witnesses for the state to testify as to the reputation of the defendant as a vendor of intoxicating liquors.

In rebuttal the witness Turnbeaugh, over the defendant’s objections, testified as follows:

“Q. How long have you known Joe Williams? A. About a year, I guess; something like that.
“Q. Will ask you if you know his reputation in the community in which he lives as being a man who handles Choc beer, and sells the same. A. Yes, sir.
“Q. Is that reputation good or bad? A. It is bad/’

The defendant’s motion to strike overruled. Witness L. 0. Short, recalled, testified as follows:

“Q. How long have you known Williams? A. Since I have been on the force here; about three years.
“Q. I will ask you if you know his reputation in the community in which he lives as being a man who handles Choc beer?
“Counsel for the defendant: Now wait a minute— To which we object as being incompetent, irrelevant, and immaterial; his reputation does not enter into this case. This was a private home; they claimed they found the stuff there.
“County Attorney: The question goes to his veracity.
“The Court: The Criminal Court of Appeals says it does. Yes; he may answer it.
“A. Yes.
“Q. Is it good or bad ? A. It is bad.”

To the same effect is the testimony in rebuttal of the witness John Walden.

By numerous decisions of this court, it is held that the state cannot attack the character of a defendant, unless he puts his character in issue by introducing evidence of good character. Todd v. State, 30 Okla. Cr. 410, 236 P. 437; Kirk v. State, 11 Okla. Cr. 203, 145 P. 307; Sims v. State, 11 Okla. Cr. 382, 146 P. 914; Cantrell v. State, 12 Okla. Cr. 534, 159 P. 1092; Upton v. State, 12 Okla. Cr. 593, 160 P. 1134; Salyer v. State, 25 Okla. Cr. 433, 221 P. 118.

A person ¿ceused of crime is entitled to a fair and impartial trial, conducted according to the established principles of law, the most important of which is that the verdict of the jury shall be founded only upon competent evidence. If a defendant cannot be fairly convicted, he should not be convicted at all, and to hold otherwise would be to provide ways and means for the conviction of the innocent.

It also appears that the search warrant in this case was based on affidavit made on information and belief. See Whitehead v. State, 28 Okla. Cr. 193, 230 P. 291; Carignano v. State, 31 Okla. Cr. 228, 238 P. 507; Lewis v. State, 32 Okla. Cr. 431, 241 P. 835.

The record shows that the court gave the following instruction:

“No. 2. It is your duty to determine from the evidence, under the instructions of the court, as to whether the defendant is guilty, or innocent, of the crime with which he stands charged. Excepted to by the defendant.”

It is the law that the defendant in a criminal action is presumed to be innocent until the contrary is proven by competent evidence, and in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted. Barnhill v. State, 31 Okla. Cr. 189, 238 P. 220.

For the errors indicated, the judgment of the lower court is reversed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    PEARL JACKSON v. STATE.
    No. A-5821.
    Opinion Filed July 23, 1927.
    (258 Pac. 356.)
    L. A. Wallace, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error was convicted on an information charging the unlawful possession of intoxicating liquor, and in accordance with the verdict of the jury was sentenced to pay a fine of $300 and imprisonment in the county jail for 60 days.

The evidence for the state shows that appellant was arrested at her rooming house while selling whisky to several patrons of the place, having about a gallon of whisky in her hands at the time.

The testimony of. the witnesses for the state 'Is practically undisputed.

No briefs have been filed, from which we may conclude that there is no material error shown by the record. The information was sufficient; the instructions 'were fair. The judgment of the lower court is therefore affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    OSCAR WOLFE v. STATE.
    No. A-5837.
    Opinion Filed July 23, 1927.
    (258 Pac. 287.)
    Anglin & Stevenson, for plaintiff in error.
    George F. Short, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, Oscar Wolfe, was convicted of the crime of grand larceny and in accordance with the verdict of the jury was sentenced to imprisonment in the penitentiary for the term of one year. He appeals from the judgment and assigns as error that the verdict is not sustained by the evidence.

The information charges the theft of a Ford motor and block, front spring and rear axle, drive shaft, and hounding, of the value of $100, the personal property of Walter Summers.

The evidence shows that the Ford truck from which these parts were taken had been carried away from the home of the owner and left on the highway in a wrecked condition.

Boss Dawson, a farmer, testified that he saw appellant and his codefendant, Robert Johnson, dismantling this Ford truck and he stopped and purchased a part of the truck from them, giving a check for $2 for the cab part.

Another witness testified that he talked to Wolf a and Johnson on the day that they removed the parts in question from the truck and that they told him they had bought the truck for $5, but they could not identify the man who sold the truck to them. He further testified that the parts in question were worth between $100 and $150. Other witnesses testified to the same facts.

As a witness in his own behalf appellant testified that at the time he was arrested he was living in Wetum-ka, and was engaged in buying eggs in the country and small towns, usually at Lamar, and selling them at Wetumka; that he had noticed the truck on the side of the road several days while passing; that on the 11th day of April he and his codefendant, Johnson, were passing where the wreck was, and there was a man standing there looking at it; they asked him what he would take for the wreck, he said $5, and appellant paid him for it; that they had a load of eggs at the time and did not load the wreckage on the car, but came back the next afternoon and dismantled the truck; that some one drove up and they sold him the cab and other parts for $2; that when they loaded it on the truck they thought they were the owners of it, because they had paid for it; that he bought the wreckage in order that he might get the back end to use on his truck.

Robert Johnson, codefendant, testified that, when they stopped at the place where the wreckage was, Mr. Wolfe went down to see if he could buy the rear; that, when Mr. Wolfe came back, he told him he had bought it for $5; that they came back the next afternoon for it, and when they were loading it on the truck they were arrested.

The rule repeatedly announced by this court is that it has no power to reverse a judgment of conviction upon the ground that the verdict is not supported by the evidence, unless there is no substantial evidence tending to show guilt of the defendant, or the evidence fails so far to support the verdict, that the necessary inference is that the jury must have acted from partiality, passion, or prejudice.

The question whether the explanation respecting the possession of property recently stolen is reasonable or satisfactory is ordinarily a question for the jury, the same as any other question of fact. If the evidence is such that all reasonable minds should arrive at the conclusion that the explanation is reasonable and satisfactory, then and then only does it become a question of law to be determined by the court. If, however, after a full, fair, and impartial consideration of all the evidence relating to the explanation, reasonable minds may differ, and may thus arrive at different conclusions as to whether it is reasonable and satisfactory or not, the find-mg of the jury must control. Blumhoff v. State, 29 Okla. Cr. 97, 232 P. 862.

Carefully considering the whole testimony in this casé, we have no doubt of its sufficiency to justify the verdict. After a careful examination of the record, we conclude that there was no error which could have been prejudicial to the appellant.

The judgment of the lower court is accordingly affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    LEE ARNOLD v. STATE.
    No. A-5782.
    Opinion Filed July 23, 1927.
    (258 Pac. 287.)
    ¡J. Q. A. Harrod, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

The plaintiff in error was convicted on an information charging that he did maintain a.nd operate a certain place where divers persons were permitted to congregate for the purpose of drinking intoxicating liquor, in Oklahoma City, and in accordance with the verdict of the jury he was sentenced to pay a fine of $250 and confinement in the county jail for 60 days. The judgment and sentence was entered on May 4, 1925. An appeal by case-made was filed in this court September 1st. No brief has been filed and no appearance made in behalf of plaintiff in error in this court, and when reached for final submission the case was submitted on the record.

In cases of this kind, we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in the admission or rejection of testimony. We have examined the information, the instructions of the court and the judgment and sentence, and we find no error which would warrant a reversal.

The judgment of the lower court is therefore affirmed.

EDWARDS and DAVENPORT, J|J., concur.


text:
    JESSE CLINTON v. STATE.
    No. A-5873.
    Opinion Filed July 23, 1927.
    (258 Pac. 286.)
    H. P. Hosey, for plaintiff in error.
    Ed Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of McCurtain county on a charge of transporting whisky and was sentenced to serve a term of 30 days in the county jail and to pay a fine of $50.

At the time charged, defendant was driving an automobile along the public highway from Idabel to Hoch-atown, about 11 o’clock at night. There deputy sheriffs were watching the highway for some purpose, and and as’ defendant approached they stepped into the road, leveled rifles at defendant, and stopped him. They had no warrant or search warrant, were not looking for defendant, and did not know who the person stopped was until after they came up to the car and defendant informed them he had whisky. The contention is made that the arrest was unlawful and in violation of the constitutional rights of defendant. All, thef evidence was admitted over objections. The testimony shows the following:

“* * * Q. Mr. Sweet had a rifle leveled on the car? A. Yes, sir.
“Q. Did you draw your gun? A. Yes, sir.
“Q. What kind of a gun did you have? A. 351 automatic Winchester.
“Q. Pistol or — ? A. No; I said 351 automatic Winchester.
“Q. Rifle? Both of you had rifles leveled on the car when you told him to stop? A. Didn’t tell him to stop — flagged him. * * *
“Q. Where was John Williams? A. He was on the right side to Jess, left side to me of the road.
“Q. Was he armed too? A. Yes, sir; he was.
“Q. What kind of a gun did he have ? A. I don't know, he carries so many different kinds and trades so much. * * *
“Q. Did you know who it was? A. Yes; when he spoke, I knew.
“Q. Before that did you know who it was driving up here? You didn’t have a search warrant? A. No.
“Q. You didn’t know whose car you were stopping? A. No.”

It is obvious that this arrest was without legal right or authority, and evidence procured by it incompetent.

The case is reversed and remanded.

DOYLE, P. J., concurs.

DAVENPOlRT, J., absent, not participating.


author: PER CURIAM.

text:
    MAGGIE BRAUN v. TOWN OF DELAWARE.
    No. A-5975.
    Opinion Filed July 23, 1927.
    (258 Pac. 284.)
    C. F. Gowdy, for plaintiff in error.
   PER CURIAM.

Plaintiff in error was convicted before a justice of the peace on a complaint of unlawful^ allowing chickens to run at large in the town of Delaware, contrary to the ordinance of said town. On appeal to the county court the trial resulted in a verdict of guilty. Plaintiff in error was sentenced to pay a fine of $15 and costs. The judgment and sentence was entered October 23, 1925. An appeal was taken by filing in this court December 23, 1925, a case-made. On September 20, 1926, petition in error was filed.

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

In cases of this kind, involving appeals for violations of city or town ordinances, we do not consider it the duty of this court to examine the record where no brief has been filed.

It appearing that the appeal herein has been abandoned, the same is dismissed and cause remanded to the lower court.


text:
    J. D. HAAS v. STATE.
    No. A-5772.
    Opinion Filed April 23, 1927.
    Rehearing Denied July 23, 1927.
    (257 Pac. 1115.)
    Freeling & Howard, for plaintiff in error.

      Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst» Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county on a charge of burglary, and his punishment fixed at confinement in the state penitentiary for a term of two years.

A certain filling station and storeroom in Oklahoma City was burglarized, and automobile tires, inner tubes, and other property stolen therefrom. Defendant, J. D. Haas, James Young, Jess Whayne, and Lawrence Hood were charged with the burglary. Hood and Whayne were witnesses for the state, and testified that they, with defendant and Young, committed the burglary; that, in coming to the place where the crime was committed, they stopped at a filling station, had some work done on the headlights of the car they were driving; that, after the burglary, at the suggestion of defendant, they took the stolen property to Shawnee, with the expectation of selling it to some person there, knowh to defendant; that at Shawnee, this person did not buy the stolen property, and it was hidden under a bridge about four miles east of Shawnee; and that later all four participating in the burglary drove out to the bridge, to get the property, and Whayne and Young got out of the automobile, and went under the bridge, and defendant and Hood remained in the automobile; and that there Whayne and Young were arrested, and defendant and Hood drove away, and were not apprehended at the time. Hood testified that, after he and defendant drove away from the bridge where the other two were arrested, they went to the home of Mrs. Clark, about four miles north of Shawnee, where they had car trouble, and stopped and telephoned for a service car. The testimony of these accomplices is corroborated by one Updegrove, who worked at the filling station where Hood and Whayne testified they stopped to have the headlights on the car repaired. This witness testified positively that one of the four men present at the time was defendant. This was further corroborated by Dan Crowley, a special policeman, who saw the four persons at this filling station at the time of the repair on the headlights, and identified one of them as defendant. Mrs. Clark, who resided four miles north of Shawnee, testified that, at the date fixed by Hood, Hood and another man came to her house in a car, and there telephoned for a service car, which came after them, and they went away together. She couldn’t identify defendant as the man with Hood at the time, but said he somewhat resembled defendant.

The defense was an alibi. Defendant denied that he was with Hood, Whayne, and Young on any of the occasions, but stated that at the time he was engaged in obtaining oil leases in the south part of Pottawatomie county, and on the night of that day, the time of the burglary, he stayed in the Imperial Hotel in Shawnee. No witness testified that he was at that time engaged in procuring these oil leases, and no one testified that he stayed that night at the Imperial Hotel in Skawnee. In view of the fact that defendant denied being in Oklahoma City at the time of the burglary the evidence of Updegrove and Crowley, identifying him as being with Young, Hood, and Whayne near the scene of the burglary, together with the testimony of Mrs. Clark, clearly corroborates their testimony under such circumstances as tends to connect defendant with the commission of the crime.

It will be seen that there is independent evidence tending to connect defendant with the commission of the crime charged, and the weight and sufficiency of this evidence is for the jury, and, when the jury has returned its verdict, this court will take the strongest view of the corroborating testimony that the evidence warrants. Alderman v. Ty., 1 Okla. Cr. 562, 98 P. 1026; Winfield v. State, 18 Okla. Cr. 257, 191 P. 609. See, also, Rhea v. State, 9 Okla. Cr. 220, 131 P. 729; Deaton v. State, 7 Okla. Cr. 436, 123 P. 701; McDonald v. State, 12 Okla. Cr. 144, 152 P. 610.

The case is affirmed.

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


text:
    WILL CORNELSON v. STATE.
    No. A-5790.
    Opinion Filed Dec. 23, 1926.
    Rehearing Denied July 23, 1927.
    (257 Pac. 1109.)

      H. J. Sturgis and Tom E. Willis, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Major county upon a charge of perjury and sentenced to serve a term of five years in the state penitentiary.

The following brief statement of facts will explain the contentions made. In October, 1923, a trial Was had in the county court of Major county upon a charge of the violation of the prohibitory liquor law; this charge of perjury is predicated upon his testimony in that case. The amended information charges that it became a material question whether in that case he was at a certain place, describing it, on June 16, when the sheriff’s force came to said place armed with a search warrant, and whether he saw certain jugs of liquor found by said officers. That defendant testified that he was not at the certain place described, and did not see certain jugs until same were produced in court. That said testimony was false and untrue and known to be false by said defendant, and said testimony was falsely, corruptly, and feloniously made, contrary to his oath, and with the corrupt and felonious intent to affect the proceedings in said case. Upon the trial of the instant case, when the state offered testimony that the county court wias in session at the time defendant gave the testimony in question, it was discovered that the journal was not complete and did not show the convening of that term of the county court. When this was discovered, the county judge retired from the witness stand, and, when he was later recalled, the county court journal containing an order nunc pro tunc for the convening of such term was introduced. The state offered testimony substantially proving all the allegations of the information.

The errors argued may be summarized as follows: First. The insufficiency' of the information. Second. Error of the court in admitting the county court journal purporting to show the convening of the term of court in which the alleged perjury was committed. Third. .Error in the instructions.

Defendant argues that the information is indefinite, uncertain, and insufficient in failing to allege a state of facts showing the alleged false testimony was in relation • to a material question; that the mere allegation that the testimony was material is insufficient. No authorities in support of this contention are cited. It is fundamental that to constitute perjury the false testimony alleged must be material to the subject under consideration, or such as would tend to influence the determination of the issues to be decided. The pleader may set out facts from which the materiality of the false testimony appears, but this is not essential. He may allege directly its materiality. 30 Cyc. “Perjury,” p. 1435, states the rule thus:

“It is sufficient to charge generally that the false testimony was in respect to a matter material to the issue, without setting out the facts from which such materiality appears.”

Bishop’s New Criminal Procedure, vol. 2, § 921, reads:

“The materiality of the false testimony to the issue or point of inquiry being an essential element in the offense, it must be averred. And the pleader in doing this may, at his election, say that it was thus material or set OUt facts from which its materiality will in law appear.

This court, in Miller v. State, 9 Okla. Cr. 196, 131 P. 181, held:

“An indictment for perjury need not set out the facts from which it will be made to appear that the alleged false testimony, upon which the charg-e of perjury is predicated, was material. It is sufficient if the express averment is made that said testimony was material to the question in issue.”

See, also, Coleman v. State, 6 Okla. Cr. 265, 118 P. 594; Cutler v. Territory, 8 Okla. 101, 56 P. 861; Rich v. U. S., 1 Okla. 354, 33 P. 804; Stanley v. U. S., 1 Okla. 336, 33 P. 1025.

Upon the second assignment, it is contended that the court erred in admitting the county court journal for the reason that, at the beginning of the trial, such journal did not show the court was in session at the time the alleged false testimony was given, and further it is not shown that the court was in session at the time of the entry of the nunc pro tunc order made during the trial of this case. No authorities in support of this assignment are submitted. We do not understand that defendant in fact claims that the county court was not in session at the time the alleged false testimony was given, or that the county court was not in session at the time of the entry of the nunc pro tunc order, which was entered on the journal, but simply that the record did not so show. It is, of course, well settled that the acts of a court of record are to be shown by the records alone, and that such records import verity. They cannot bé impeached by evidence aliunde and may not be questioned in a collateral matter. It is likewise well settled that •omissions in a court’s record may be supplied and corrections made even after the expiration of the term by nunc pro tunc order, and when so corrected they import absolute verity, except in a proceeding to vacate or correct them, by appropriate proceedings in the court in which the order was made.

In Ex parte Cook, 2 Okla. Cr. 684, 108 P. 1041, this court said:

“The same question was passed upon in McQuown’s Case, 19 Okla. 347, 91 P. 689, 11 L. R. A. (N. S.) 1136. The same court there said: ‘The orders, judgments, and proceedings of a court of general jurisdiction are required to be recorded by the clerk of the court. The failure of the clerk or recording officer to make such record does not vitiate the proceedings. The clerk may, at any time during the term at which the proceedings are had, correct, amend, or supply omissions to make the record speak the truth; and the court may at any time, upon proper application, from the memory of the presiding judge or upon proper showing, by appropriate order nunc pro tunc, cause its record to recite the truth, and may supply any omission from its record; and this may be done in a criminal as well as in a civil cause. Such records, when so supplied, relate to the time when the proceedings were in fact had, and may make valid that which was apparently defective. Wight v. Nicholson, 134 U. S. 136, 10 S. Ct. 487, 33 L. Ed 865; Gonzales v. Cunningham, 164 U. S. 612, 17 17 S. Ct. 182, 41 L. Ed. 572; Hyde v. Curling, 10 Mo. 359; State v. Clark, 18 Mo. 432; Nelson v. Barker, 3 McLean (U. S.) 379, Fed. Cas. No. 10101; State v. Bilansky, 3 Minn. 246 (Gil. 169); Bishop’s New Crim. Proc. § 1345.’ ”

In the case of In re Tucker, 4 Okla. Cr. 221, 111 P. 665, this court, speaking by Richardson, Judge, said:

“The petitioner’s contention is that the trial, judgment, and commitment are void, for the reason that the county court was not convened within two days after the first day of the term as fixed by law; that it did not, in fact, convene until August; that the term had then lapsed and could not be revived; and that the convocation of officers and persons who met and tried petitioner did not constitute a court. The respondent, however, has filed certified copies of the journal entries, showing the convening of the court on July 6, 1909, and.further showing that the court was in continuous session from that time until after petitioner was tried. The record of petitioner’s trial, conviction, and sentence was duly entered in the journal in regular course, but it appears that the order convening the court and some other orders following that; not affecting the petitioner, however, were entered in the clerk’s minute book, and were after-wards entered in the journal nunc pro tunc. In reply, the petitioner contends that the entry showing the convening of the court does not speak the truth; and that its entry nunc pro tunc is unavailing, because made without any notice to him, and that notice was necessary, under section 6096 of Snyder’s Comp. L. Okla. * * * The entering of such an order in conformity with the facts may be lawfully done without notice to any person, even after the expiration of the term. And when properly entered, so long as it stands, in any subsequent proceeding in which it may be brought in question, other than one to vacate or correct, which is instituted in the court in which it was made, it imports absolute verity. Willard v. Whitney, 49 Me. 235; Maynes v. Brockway, 55 Iowa, 457, 8 N. W. 317; Davis v. Messenger, 17 Ohio St. 231; Hansen v. Schlesinger, 125 Ill. 230, 17 N. E. 718; Barringer v. Booker, 1 Ind. T. 432, 35 S. W. 246; In re Macke, 31 Kan. 54, 1 P. 785. The journal entry is therefore conclusive of this question in this proceeding. * * *”

See, also, Wheeler v. State, 25 Okla. Cr. 365, 220 P. 962; Wilson v. State, 3 Okla. Cr. 714, 109 P. 289; In re Coyle, 4 Okla. Cr. 133, 111 P. 666.

Lastly, complaint is made that the court in his instruction No. 6 invaded the province of the jury and stated to them that a certain matter of fact had been proved beyond a reasonable doubt. The court stated to the jury in his instructions that certain essential facts must be proved beyond a reasonable doubt before they could find the defendant guilty. This instruction covers the material allegations of the information, and among other things requires that they find that the county court was in lawful session at the time of the giving of the testimony in question. Instruction No. 6, complained of, reads:

“Now as to the matters proved, the journal of the county court of Major county, state of Oklahoma, has been introduced in this case, and it has been shown by said journal that the county court of M-^jor county, state of Oklahoma, was in lawful session on said 25th day of October, 1923; second, that J. Dawson Houk was the duly elected, qualified, and acting county judge in and for Major county, state of Oklahoma, on the 25th day of October, 1923, and that case No. 899, styled the State of Oklahoma v. Neis Cornelson, came on for trial in said county court on the 25th day of October, 1923; and, third, that J. Dawson Houk, as such county judge of Major county, state of Olklahoma, had full authority and pow/er to administer an oath to the said Will Cornel-son; and these three facts may be taken by the jury as having been proved beyond a reasonable doubt. * *

An instruction in the same language as that here complained of was approved by this court in the case of Coleman v. State, 6 Okla. Cr. 252, 118 P. 594, being a part of instruction No. 3, quoted in that case, and the same instruction was approved in the case of Dunn v. State, 15 Okla. Cr. 245, 176 P. 86, referred to on page 259 (118 P. 597), although the instruction is not set out. See, also, instruction No. 8 of the court’s charge, quoted in the case of Campbell v. State, 23 Okla. Cr. 250, 214 P. 738.

That the county court was in session, at the time the case in which the alleged false testimony given was tried, was not contested. Indeed, it was not a matter that could be contested except by the records of that court, and, when the court journal was introduced in evidence showing that the court was in session at that time, it imported absolute verity, as a matter of law, and it was the duty of the court to inform the jury as he did that, as a matter of law, the county court was then legally in session.

BESSEY, P. J., and DOYLE, J., concur.


text:
    H. S. GROCE et al. v. STATE.
    No. A-5690.
    Opinion Filed April 2, 1927.
    Rehearing Denied July 23, 1927.
    (257 Pac. 1108.)
    Bond & Bond, for plaintiffs in error.
    Geo. F. Short, Atty. Gen., and W. L. Murphy, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Plaintiffs in error, hereinafter called defendants, were convicted in the county court of Stephens county of the offense of unlawfully pointing a pistol, and each sentenced to pay a fine of $50 and. confinement in the county jail for a period of three months.

The facts disclosed by the record are about as follows: Defendants occupied certain lands adjoining the farm of one Gatlin, upon which the live stock of defendants trespassed. It appears that one Sledge had farmed part of the land on which the stock was grazing, and defendants claim that Sledge had given them permission to let their stock on the land. However, Gatlin was in control of the land at the time and had not given permission, but had protested against defendants’ allowing their stock on the land in question. On the date the •offense is charged, Gatlin, accompanied by two other persons, proceeded to his land in the vicinity of defendants’ farm and there seized, under the Herd Law, section 3940, Comp. Stat. 1921, certain live stock belonging to defendants, which were trespassing upon his land. These three men were driving the live stock along the highwlay when intercepted by defendants. Gatlin, the complaining witness, testified that defendants came up in front of them, and pointed a pistol at them, and threatened to kill them, and forced them to release the live stock. Defendant H. S. Groce admitted having a pistol, but denied that he pointed it at any one; Arlie Groce denied that he had a pistol at the time. The evidence was conflicting, and it was for the jury to say whom they would believe, and from their verdict they evidently believed the testimony offered by the state. This evidence is sufficient to sustain the verdict.

It is further contended that the court erred in his instructions to the jury Nos. 8, 10, and 11, and in depriving defendants of the right of defense of property. The complaint as to the eighth instruction is that it applies only to defense of person or family, and does not also include the right of defense of property. It is not required that a single paragraph of the charge shall state the entire law of the case, but it may deal with one particular element of the law. No particular paragraph should be singled out, but the instructions are to be construed all together, and while instruction No. 8 does not apply to defense of property, instructions No. 9 and 11 cover that phase of the law. In the latter part of instruction 11, the court said:

“You are instructed, gentlemen of the jury, that the" defendants had a right to go to where the prosecuting witness, Gatlin, was on the highway and inquire of him what he w]as going to do with his property; if the said Gatlin refused to tell the defendant what he was going to do with said stock, and the defendants did not know that the said Gatlin intended to herd law said stock, that then, and in that event, the defendants had the right to act upon the appearances, and if you find that he had a right to believe that the state’s witness, Glatlin, and his helpers, Brown and Middleton, were making away with said cattle without authority of law, that then they had a right to recover said cattle and stock, provided that in doing so he did not use more force or violence than was reasonably necessary to effect that purpose.
“You are instructed that, in passing upon the question of admissibility of any evidence, the court has not expressed nor intimated, nor intended to express or intimate, any opinion as to the weight and credibility of the evidence. The court has simply determined what evidence offered in the case was proper to go before you for your consideration. As to the weight and credit to be given to the evidence introduced, you are the sole and only judges. * * *”

This part of this instruction was not excepted to, but was apparently satisfactory to defendants, and, taken with the other instructions of the case, fairly submits the issue; and, while the instructions are not a model, there is no such substantial error as requires a reversal.

The case is affirmed.

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


text:
    VOL COOKSEY v. STATE.
    No. A-6085.
    Opinion Filed July 30, 1927.
    (258 Pac. 1059.)
    Percy Powers, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

The information charges that in Greer county, May 22, 1925, Vol Cooksey did have in his possession about 30 gallons of mash, fit for and for the purpose of manufacturing alcoholic liquor. His trial resulted in a verdict of guilty, the jury failing to agree upon the punishment. The court sentenced him to pay a fine of $250 and imprisonment in the county jail for 60 days.

The evidence for the state, which is undisputed, conclusively shows the guilt of the defendant. There was no evidence offered on the part of the defense.

Finding no error in the proceedings in the court below, the judgment appealed from is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    SANDERS SANCHO v. STATE.
    No. A-6201.
    Opinion Filed July 30, 1927.
    (258 Pac. 1056.)
    E. W. Whitney, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

Plaintiff in error, Sanders Sancho, was convicted of forgery in the second degree, and was sentenced to imprisonment for the term of one year in the penitentiary. From the judgment rendered on the verdict an appeal by case-made w!as perfected, April 23, 1926.

Suggestion, of the death of plaintiff in error has been made and his counsel of record has filed a motion to abate, setting forth the death of plaintiff in error.

In a criminal action, the purpose of the proceedings being to punish the defendant in person, the action must necessarily abate upon his death. It is therefore considered and adjudged that the proceedings in the above entitled and numbered cause, and especially on the judgment appealed from, do abate and cause remanded to the district court of Seminole county with direction to enter its appropriate order to that effect.

EDWARDS and DAVENPORT, JJ., concur.