text:
    L. A. DUFFER v. STATE.
    No. A-7398.
    Opinion Filed Sept. 6, 1930.
    Rehearing Denied Oct. 18, 1930.
    (291 Pac. 986.)

      Alonzo Turner and Percy Powers, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Greer county of the crime of grand larceny, and his punishment fixed by the jury at imprisonment in the state penitentiary for a year and a day.

Defendant was charged jointly with one Lum Sublett with the larceny of two bales of cotton. Information was filed on the 17th day of May, 1928, and defendants arraigned on the 2d day of July, 1928, and entered their pleas of “not guilty,” and then-after the case was set for trial on the 23d day of November, 1928. When their case was called for trial, they announced that their attorney, Alonzo Turner of Borger, Tex., was not present, and asked the court to continue the case until such time as their counsel could be present. The court refused this application and appointed Percy Powers, an attorney of Greer county, to represent the defendants.

Thereupon the defendants demanded a severance, which severance was granted, and the state elected to try the defendant L. A. Duffer first. Thereupon defendant’s counsel announced ready for trial and made no further objection to proceeding with the trial of the case.

The evidence of the state was that the defendant and Lum Sublett stole two bales of cotton from the Willow Gin Company, A. K. Key, manager, and sold the same to the Mangum compress. Defendant did not take the witness stand and offered no evidence.

Defendant contends first that the court erred in not postponing the case until his regular counsel could be present. It appears from the record that the defendants were arraigned on the 2d day of July and their case set for trial on the 23d day of November, which gave them ample time to have counsel present and prepared for trial. Defendants filed no motion and made no verified showing that they had employed counsel, or any reason why he was not or could not be present. The court appointed counsel and thereupon defendant announced ready for trial. Under the facts as revealed by the record, the court did not commit error in refusing to continue the case on account of the absence of counsel.

Defendant next contends that the court erred in overruling his demurrer to the evidence for the reason that the same was insufficient to support the verdict of the jury. There is no merit in this contention.

For the reasons stated, the cause is affirmed.

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


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    J. H. NEAL v. STATE.
    No. A-7221.
    Opinion Filed Oct. 18, 1930.
    (292 Pac. 571.)
    Tom Huser, Ira J. Banta, and J. R. Huggins, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

This is an appeal wherein the plaintiff in error, hereinafter called defendant, was convicted of the crime of manslaughter in the first degree in the killing of one E. W. Chambless, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of 35 years.

The defendant was convicted largely upon circumstantial evidence. The evidence of the state was that the body of Chambless was found about 30 steps from the highway, about half a mile from the town of Earlsboro, in Pottawatomie county; that the body appeared to have been dragged from the road down into a small canyon; that tracks of a car having a flat tire led from the point on the road where the body appeared to have been unloaded to a garage belonging to one A. M. Mize, about four miles north of Earlsboro, where the car was found out near the garage and having a flat tire; that there was blood in the car and appearances of a struggle; and that this car belonged to the defendant. After defendant was arrested and taken to the place, he admitted that the car was his and explained the blood as having come from his own nose, because some person had struck him in the face with a gun.

After this, defendant admitted to the officers that he had picked some man up on the road and had, after some controversy, taken him to his home in Seminole county; that the man had been drinking, and that while he was fixing some supper for this man, that the man had got a butcher knife and threatened him to make him take him to Shawnee; that he went around the table and succeeded in getting hold of a gun setting in a comer and they scuffled out through the door. That this man got hold of the gun stock and the barrel and stock were separated, and he knocked the man out by hitting him over the head with the gun barrel. The gun barrel and stock were found in the yard at the home of defendant, and the end of the gun barrel appeared to fit some wounds found on the body of the deceased. Defendant then said that the man wanted him to take him to a doctor, and he took him in his car and drove np to this garage where the car was found, and went to get a check cashed, and when he came back the man was gone and he never saw him any more.

Defendant’s brother-in-law testified that he lived about a quarter of a mile from the home of defendant; that defendant came to his home on the night of the homicide and told him that he had a dead man in the car and wanted him to help him get rid of the body; that he heard some one groaning in the car, but did not look in to see who it was; that defendant drove away with the body in his car; that defendant came back to the witness’ home the next morning afoot; and that there was blood on his pants and on his socks.

The defendant did not take the witness stand, but evidence was introduced for the purpose of showing that he was insane to such an extent that he could not commit the crime. The defendant contends that the state did not prove venue.

Section 2429, C. O. S. 1921, provides:

“When a public offense is committed, partly in one county and partly in another county, or the acts or effects thereof constituting or requisite to the offense, occur in two or more counties, the jurisdiction is in either county.”

The theory of the state was that the defendant killed the deceased at his home in Seminole county and hauled the body to the place where it was found in Pottawatomie county, and there attempted to conceal the same.

This court has held that venue may be proved by circumstantial evidence, and need not be proved beyond a reasonable doubt. Gritts v. State, 6 Okla. Cr. 534, 118 Pac. 673, 120 Pac. 669; Ward v. State, 13 Okla. Cr. 81, 162 Pac. 232; Nix v. State, 20 Okla. Cr. 374, 202 Pac. 1042, 26 A. L. R. 1053; Cole v. State, 34 Okla. Cr. 366, 246 Pac. 653.

The facts and circumstances as shown by the evidence of the state sufficiently establish the venue in Seminole county.

The defendant next contends that it was reversible error for the state to use the witness Willie Weatherford, for the reason that his name was not indorsed on the list of witnesses served on the defendant. The record discloses that a copy of the information with the name of the witness Willie Weatherford and others indorsed on it was served on the defendant as required by the Constitution. There was a mistrial of the case. At the time the case was again set for trial the state served on the defendant a list of the witnesses to be used, which list did not contain the name of Willie Weatherford.

Where, in a capital case, the state, more than two days before the case is called for trial, serves a copy of the information upon the defendant upon which is indorsed the names of the witnesses to be used in chief against the defendant, the mere fact that there has been a mistrial, or that the case has been continued or set for trial at another date, does not necessitate another service of the names of the witnesses to be used in chief.

The witness Willie Weatherford was a brother-in-law of the defendant. It appears that after the list of witnesses was 'Served on defendant, Willie Weatherford changed his address, from Earlsboro to Maud. The objection of the defendant tO' the testimony of the witness Willie Weatherford was without merit.

The defendant next contends that the court erred in permitting the state to introduce evidence of other criminal acts of defendant. The defendant had introduced a number of witnesses to prove his insanity, and they had testified to numerous acts of the defendant over a period of years upon which they based their opinion that defendant was insane at the time the homicide was committed. The state in rebuttal was permitted by the court to show by officers who had had him in custody that some of the acts testified to were committed while the defendant was intoxicated; that he had an ungovernable temper and frequently gave way to the same; and that while in such condition he had been arrested a number of times charged with crime, and that at such times he appeared to be normal and in the same mental condition he was in at the time he was arrested for the commission of the offense for which he was being tried. Necessarily, the officers could not testify to his mental condition without mentioning the fact of his being in their custody charged with other crimes.

The court instructed the jury that other offenses could not be considered by them for the purpose of determining the guilt or innocence of the defendant in the case at bar, but were merely incidental to the defendant’s defense of insanity, and could be considered by the jury only for the purpose of determining whether the defendant had sufficient mental capacity to distinguish right from wrong and to know the consequences of his act at the time the homicide was committed.

The rule is that other crimes cannot be shown unless they tend to show a plan or scheme, or unless they are part of the res gestae, or unless they are necessarily connected with the crime in question or with the defense thereof, or unless evidence offered by the defendant brings them out. State v. Rule, 11 Okla. Cr. 237, 144 Pac. 807; Miller v. State, 13 Okla. Cr. 176, 163 Pac. 131, L. R. A. 1917D, 383; Wise v. State, 34 Okla. Cr. 284, 246 Pac. 656; Johnson v. State, 35 Okla. Cr. 212, 249 Pac. 971; Reeves v. State, 36 Okla. Cr. 409, 255 Pac. 162; Jackson v. State, 42 Okla. Cr. 86, 274 Pac. 696.

The court did not err in admitting this evidence.

Defendant next contends that the court erred in refusing instructions requested by the defendant, and also that the court erred in some of its instructions given to the jury. When the instructions are considered together in the light of the facts and circumstances proved in the case, they fairly state the law, and are as favorable to the defendant as the facts in the case would warrant.

Other errors are complained of, but they are not sufficient to require discussion nor to require a reversal of the case.

For the reasons stated, the cause is affirmed.

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


text:
    ROY JONES v. STATE.
    No. A-7327.
    Opinion Filed Oct. 18, 1930.
    (292 Pac. 570.)

      J. Earl Smith, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of the crime of robbery with firearms, and sentenced by the court to life imprisonment in the state penitentiary.

The defendant argues, first, that the evidence of the state is insufficient to support the verdict of the jury. When the defendant was first arrested, the witnesses were in doubt as to whether he was one of the parties who' had committed the robbery, but in the trial of the case they identified him as one of the robbers. The defense was an alibi. The jury saw the witnesses and heard them testify; it was their duty to weigh the evidence and determine the truthfulness or falsity of the charge. The jury having found the issues for the state and there being sufficient evidence in the record to support their verdict, the trial judge did not err in overruling defendant’s demurrer to the evidence.

The defendant next contends that there was prejudicial error committed by the trial judge, in that, while the defendant was on trial before the jury in the courtroom, another defendant charged with a similar offense was brought into court for judgment and sentence, and that the trial court, after lecturing such defendant on the enormity of his crime and announcing that it intended to break up that kind of crime, sentenced such defendant to life imprisonment. In the case at bar, while the jury found the defendant guilty, they did not fix the punishment. The defendant argues that the prejudicial remarks and conduct of the court in sentencing the other prisoner influenced the jury in returning a verdict of guilty against him, and that, except for such prejudicial remarks, the jury probably would not have found him guilty. This contention cannot be true, for the reason that there is sufficient competent evidence in the record to require an honest jury to return a verdict of guilty. The better practice would be to exclude the jury from the courtroom while sentencing other prisoners, and to refrain from any discussion of crime in the presence of the jury which might have a tendency to prejudice defendants who might then be on trial for similar offenses.

The defendant next contends that the punishment is excessive. The Attorney General in his brief says:

“The defendant herein had previously served time at Granite when but a boy and at the time of the trial herein was only about 21 years of age and, under the holdings of this court, since no injury of a physical nature accompanied the acts of robbery and since said jury failed to agree on the punishment but left the same to the court and thereupon the court sentenced the defendant to life, it is apparent to the writer of this brief that said punishment is excessive and unusual in cases of this kind.
“This court has on numerous occasions reduced sentences when same appeared to be unusual in their severity and especially out of proportion to sentences imposed upon those found guilty under like conditions, and it is the opinion of the writer that said sentence should be reduced to 15 years in the state penitentiary at McAlester, for the reasons heretofore assigned.”

While the recommendations of the Attorney General are not conclusive upon this court, yet they are persuasive. When the age of the defendant and all of the facts and circumstances in the case are considered, we are of the opinion that the punishment is excessive and should be reduced to 15 years’ imprisonment in the state penitentiary.

For the reasons stated, the cause is modified, and the punishment reduced to 15 years in the state penitentiary at McAlester, and, as modified, the same is affirmed.

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


author: DAVENPORT, J.

text:
    ALBERT MUSGRAVES v. STATE.

      No. A-7393.
    Opinion Filed Oct. 18, 1930.
    (292 Pac. 376.)

      Brett & Brett, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of manslaughter in the first degree, and was sentenced to serve a term of six years in the state penitentiary and pay the costs. Motion for new trial was filed, considered, overruled, exceptions saved, and the case appealed to this court.

The testimony, in substance, is that on the night of the 15th of July, 1928, the defendant, his brother, Lawrence Musgraves, Jim Barker, and a girl they called Patsy Golden went to the home of the deceased and aroused the deceased, who served them beer; that Patsy Golden became intoxicated and threw some of the beer in Jim Barker’s face; the defendant remonstrated with Patsy; Patsy and Lawrence Musgraves then went out of doors and a few minutes later Patsy Golden and Lawrence Musgraves returned to the house leaving the defendant outside on a cot; after Lawrence Musgraves came back into the house he talked about being tough and the deceased told him that he was not too tough to be slapped, and he slapped Lawrence Musgrave and knocked him down.

The testimony further shows that the parties started to leave the house and got out in the yard, and while in the yard the deceased struck Lawrence Musgraves and knocked him down again. Jim Barker claimed that as he, Lawrence Musgraves, and Patsy Golden were leaving, he heard the deceased say, “Come here, Jim; he is cutting me all to pieces.” Barker stated he returned and saw the defendant holding the deceased with one hand and cutting him with the other; that he hit the defendant over the head with a slop jar and knocked him to his knees and then hit him again. Another witness by the name of Giles stated that Barker hit the defendant in the face with the slop jar.

The testimony further shows that after the parties had been separated Jim Barker and Hoot Giles assisted the deceased into the house and found that he had several cuts on his body.

The testimony further shows, by the doctor, that the deceased died from the effects of his wounds, one of which was in the abdomen penetrating the cavity; a portion of the intestines was out on his clothes when the doctor arrived.

The defendant in his testimony states that after they had been at the home of the deceased for some time, where they had been drinking beer, he went out in the yard and lay down on a cot with his face down and went to sleep; that the first thing he knew some one was striking and cursing him, and telling him to leave; that whoever it was that was striking him hit him on his nose with some kind of a blunt instrument and broke his nose; that he then got out his knife and began cutting the party, not knowing who it was, and that when he left the place he did not know who it was he had cut, and did not find out until the next morning. So far as the record shows there is nothing to indicate there was any feeling between the deceased and the parties, or that they had quarreled; that Lawrence Musgraves and the deceased were in the house when the deceased knocked Lawrence down, and then out in the yard struck him and knocked him down again.

The record does not show that the defendant knew anything about the trouble the deceased and his brother Lawrence had, and his only contention is that while asleep on the cot, with his face down, some one began striking him with some kind of a blunt instrument and broke his nose, and that when he got up he got his knife out and began cutting the party.

Hoot Giles’ testimony tends to show that Jim Barker struck the defendant in the face with a slop jar and knocked him to his knees, and then struck him again.

The foregoing is a brief abstract of the testimony.

The defendant has assigned several errors alleged to have been committed by the court in the trial of his case. The defendant discusses the first, second, and third assignments together. They are as follows:

“1. Because the verdict of the jury returned in said court is contrary to the said evidence and is not supported by the evidence.
“2. Because said evidence is contrary to the law.
“3. Because said evidence is contrary to both the law and the evidence and is not sustained by the law or the evidence.”

The defendant urges in his argument that the verdict of the jury of manslaughter in the first degree is not supported by the evidence and is contrary to the evidence. Section 1740, C. O. S. 1921, states that homicide is manslaughter in the first degree in the following cases:

“First. When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.
“Second. When perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide.
“Third. When perpetrated unnecessarily either while-resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed.”

The defendant in arguing these assignments urges that the evidence shows that the homicide was committed under circumstances which constitute excusable or justifiable homicide, and that the evidence does not show that the homicide comes within the third subdivision of manslaughter in the first degree, but that the evidence clearly shows that it was a case of self-defense or excusable or justifiable homicide. It is clearly shown from the evidence of the parties present that, while in the house Lawrence Musgraves was knocked down by the deceased, and after they went out of the house Ernest Ford knocked Lawrence Musgraves down again. Up to the time Ernest Ford knocked Lawrence Musgraves down the last time it appears that the defendant was out on a cot in the yard; then it was, the defendant claims, that some one began striking him with a blunt or rough instrument and broke his nose and he got out his knife and began cutting the party.

There is no testimony to show what brought about the fight between the deceased and the defendant, as the last thing any of the witnesses seem to remember took place in the yard, before the deceased called and stated the defendant was cutting him to pieces, was when the deceased knocked the brother of the defendant, Lawrence Musgraves, down.

All of this testimony was before the jury, and the jury had an opportunity to judge of the weight of the evidence and credibility of the witnesses and their demeanor upon the stand, and this court will not substitute its judgment for the judgment of the jury, where there is any competent testimony upon which the jury might reasonably conclude that the defendant was guilty. The question of settling the conflict of the evidence is solely within the province of the jury and not for this court to determine, if there is any competent evidence in the record to sustain the verdict.

It is further contended by the defendant that instruction No. 3, given by the court, did not correctly state the law and deprived the defendant of a fair and impartial trial. In instruction No. 3, the court defined homicide as follows:

“Homicide is the killing of one human being by another. Homicide is either murder, manslaughter in the first degree, manslaughter in the second degree, excusable homicide, or justifiable homicide. There is no evidence in this case showing, or tending to show, manslaughter in the second degree, and that degree of homicide will not be defined to you, further than to say that it is certain kinds of negligent, but unintentional killings. There is no evidence in this case showing, or tending to show, that the homicide in this case was excusable, and that degree of homicide will not be defined to you, further than to say it is certain kinds of accidental killings.”

The defendant urges that in giving instruction No. 3, in which the court stated to the jury that there was no evidence showing, or tending to show, that the homicide in this case was excusable, amounted to a comment on the weight of the evidence.

Section 1752, C. O. S. 1921, defines what is excusable homicide. Section 1754, C. O. S. 1921, defines what is justifiable homicide. That part of instruction No. 3, complained of by the defendant, is shown to relate to what is excusable homicide, and in defining homicide the court told the jury that there was no testimony showing that the offense charged against the defendant was excusable homicide. Nowhere in this instruction does the court invade the province of the jury or attempt to tell the jury what there was in the testimony to show that the killing of the deceased by the defendant was not justifiable. In his general instructions, however, the court does define and tell the jury under what circumstances the defendant would be justifiable in striking the fatal blows, and required the jury to find beyond a reasonable doubt that the evidence was sufficient to sustain a conviction before it returned its verdict. We do not think the giving of instruction No. 3 in any way whatever prejudiced the rights of the defendant before the jury.

The defendant next complains that the court committed prejudicial error under the evidence in this.case in instructing repeatedly on the question of murder, and insists that there is no evidence which tended to show that the homicide was murder. Citing, in support of his contention, Mulkey v. State, 5 Okla. Cr. 75, 113 Pac. 532.

As the defendant in this case was only convicted of manslaughter in the first degree, the instruction upon murder would not be reversible error.

In Duncan v. State, 11 Okla. Cr. 217, 144 Pac. 629, 630, this court, in the fifth paragraph of the syllabus, said:

“An assignment of error, based upon an instruction of the court bearing upon the question of the guilt or innocence of the person on trial of murder is of no avail when the jury returned a verdict finding such person guilty of manslaughter and not of murder.” Tinney v. State, 19 Okla. Cr. 127, 201 Pac. 819.

The instruction on murder was not error, and, in view of the fact that the defendant was convicted of manslaughter in the first degree, could not be urged as grounds for reversal of this case.

In defendant’s twelfth assignment of error he insists that the juror O. E. Shumate was disqualified. An examination of the case-made shows that only the examination of the juror by the defendant is brought up in the case-made. There is nothing in the record to show that the defendant had exhausted his peremptory challenges at the time he challenged this juror. In Nail v. State, 18 Okla. Cr. 40, 192 Pac. 592, 593, this court said:

“It is next contended that the trial court erred in overruling a challenge for cause to the competency of the jurors Strawn and Guest. The record affirmatively shows that neither of these jurors served upon the panel. It is not made to appear whether they were challenged peremptorily by the state or by defendant. If challenged by the state, it is apparent that defendant could not have been injured by any previous ruling of the court overruling a challenge for cause by defendant. If they were after-wards challenged peremptorily by defendant before any error reversible in its nature could be based upon the alleged erroneous action of the trial court in overruling a challenge for cause, it must appear that defendant was required to and did exhaust all of his peremptory challenges, and that by reason of such action, defendant was deprived of a fair and impartial jury in the trial of the cause. There is no showing in this record that any of the jurors who sat upon the trial of this cause were in any respect disqualified or in any manner j>rejudiced against defendant or his cause of defense.”

There are other errors assigned which have not been overlooked, but have been given careful attention. After a careful consideration of them we do not think they possess sufficient merit to warrant a reversal of the case. The evidence in this case is sufficient to sustain the verdict of the jury. The court sustantially instructed the jury as to the law as applied to the facts in this case. No fundamental or prejudicial errors appear in the record sufficient to warrant a reversal.

The judgment is affirmed.

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


text:
    W. R. CALLOWAY v. STATE.
    No. A-7014.
    Opinion Filed Oct. 18, 1930.
    (292 Pac. 383.)
    Mathers & Mathers, Goodwin & Freeman, and Hamilton, Gross & Howard, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was charged by information jointly with Lawrence Calloway, Vivian Calloway, and Raymond Wilson. A severance was granted, and the defendant was tried, convicted, and sentenced to the penitentiary for life. Motion for new trial was filed, considered, and overruled, and the case appealed to this court.

The testimony of the state tends to show that on November 3, 1927, three persons entered the First National Bank of Wynnewood, Garvin county, Okla., and with firearms held up the officers and employees and robbed the bank of more than $7,000 in cash and $26,000 in government bonds. Evidence tends to show that this defendant, Everett McColloch, and Raymond Wilson entered the bank, and that L. L. Calloway waited in a car outside in which the parties escaped after the robbery. The defendant is positively identified by the officers of the bank as being one of the parties who entered the bank and robbed it. A few days after the robbery was committed, the defendant and Everett McColloch were found together at Tulsa and were apprehended. The defendant in this case was the first one tried. His defense was an alibi.

The testimony of the defendant is in direct conflict with the state’s testimony. The defendant denies he had ever been in the town of Wynnewood, Garvin county, Okla., or had anything whatever to do with the robbery of the bank.

This is a companion case to McColloch v. State, 45 Okla. Cr. 442, 283 Pac. 1026, which was tried subsequent to the case at bar. It is not deemed necessary to go into the facts presented in this record or to discuss all the assignments of error, as they were practically all considered in McColloch, supra.

Many errors are assigned and argued by the defendant. The first, second, and third assignments are as follows :

“1. The verdict of the jury is the result of passion and prejudice.
“2. That the verdict is contrary to law.
“3. That the purported verdict so returned is not the verdict found by the jury.”

There is nothing in the record to show that the verdict of the jury was the result of passion or prejudice, or that the action of the trial court or county attorney and special prosecutor was such as to arouse passion or prejudice in the minds of the jurors. So far nothing has been found to show that the verdict is contrary to law, or that the verdict returned, filed, and recorded, and upon which the defendant was sentenced, was not the verdict returned by the jury.

It is contended by the defendant that another and different verdict was written, delivered, and presented to the court by the foreman of the jury other than the one voted and found by the jury. This contention of the defendant is unfounded, as we find nothing in the record to show where a verdict other than the one received and recorded by the court was returned by the jury.

It is next urged by the defendant that the trial court erred in overruling the motion of the plaintiff in error for a new trial. His motion for a new trial practically covers all assignments of error not specifically mentioned and discussed herein. Under this assignment will be considered many questions that arose in the trial of his case. This testimony clearly shows the defendant guilty, and the testimony further shows that the robbery of this bank occurred in Wynnewood. This court will take judicial notice that Wynnewood is in Garvin county, Okla., and that this offense was committed in Garvin county, Okla.

Upon the question of the application for change of venue and continuance of the case, the granting of a change of venue or a motion for continuance is by the statute made discretionary with the court, and the appellate court will not reverse the ruling of the lower court in denying a change of venue or a motion for continuance unless it is made clearly to appear that there has been an abuse of discretion tO' amount practically to' a denial of justice. Davis v. State, 10 Okla. Cr. 169, 135 Pac. 438; Gentry v. State, 11 Okla. Cr. 355, 146 Pac. 719; Maddox v. State, 12 Okla. Cr. 462, 158 Pac. 883; Pulsey v. State, 22 Okla. Cr. 192, 210 Pac. 306; Warren v. State, 24 Okla. Cr. 6, 215 Pac. 635; Kirby v. State, 25 Okla. Cr. 330, 220 Pac. 74, 33 A. L. R. 1212; Leard v. State, 30 Okla. Cr. 191, 235 Pac. 243.

Other assignments have had careful attention and study by the court. There are several errors in the record, but from a careful consideration of the testimony we are convinced that none of them materially prejudice the rights of the defendant. Considering the entire record and facts contained therein, we hold that the defendant had a fair trial, and no reason for reversal is made to appear, but, in view of the fact that a codefendant was tried subsequently to this trial and practically the same testimony introduced in the case as was introduced against the defendant in this case, and the jury returned a verdict of guilty and assessed his punishment at 40 years in the penitentiary, we believe that the condition of the record in this case warrants a modification of the sentence from life to 40 years in the penitentiary, and, as modified, the case is affirmed.

EDWAEDS, P. J., and CHAPPELL, J., concur.


text:
    LELA MURRY v. STATE.
    No. A-7347.
    Opinion Filed Oct. 18, 1930.
    (292 Pac. 389.)
    J. Hugh Nolen and S. A. Horton, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, for convenience referred to as the defendant, was convicted of manslaughter in the second degree, and sentenced to serve a term of two years in the penitentiary. From which sentence and judgment the defendant has appealed.

The charge against the defendant is that:

“She did knowingly, willfully, wrongfully, unlawfully and feloniously, without authority of law, and with a premeditated design to effect the death of one C. P. Mitchell, Jr.,” and while the said C. P. Mitchell was engaged in a lawful act of driving a car on a public highway in Ok-fuskee county known as State Highway No. 9, and while she, Lela Murry was driving an automobile at a reckless and unusual rate of speed along the said highway No. 9 in Okfuskee county, Okla., strike, collide, run into, upon and against the car being driven by the said O. P. Mitchell, Jr., “resulting in inflicting upon the body of him, the said C. P. Mitchell, Jr., certain mortal wounds-, of which mortal wounds the said C. P. Mitchell, Jr., did on the 27th day of February, 1928, die, as was intended by her, the said Lela Murry, he should do-, with the unlawful intent then and there on the part of her the said Lela Murry to kill and murder the said 0. P. Mitchell, Jr., contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

The substance of the testimony in support of the allegations in the foregoing information is as follows: O. B. Burris testified he lived near where the accident occurred, but did not see either of the cars while they were moving; he saw the cars after the accident, but did not see the defendant, and that he had no- information as to how the accident occurred.

Roosevelt M'icawber testified he was passing the place where the accident occurred and saw the car that had been injured and a doctor was called, but he did not see the defendant, and knew nothing about how the accident occurred.

Dr. J. L. Moise testified that in his judgment Ed Mitchell died as a result of the collision, and that was the substance of his testimony.

Dr. C. L. Bloss testified as to the injuries of the deceased Mitchell.

Frank Beaty testified as to the position of the cars after the accident, and in substance stated the car supposed to have been driven by the defendant was on the wrong side of the road; he did not see the accident and had not seen either car before the accident, and had no information as to how the accident occurred.

P. B. Burris testified he saw the car after the accident occurred; he did not see the accident and did not see the defendant; he had no information as to how the accident occurred.

Carson Burris stated there was an accident; he saw the cars after the accident; he did not see the cars when they were moving'.

Cecil Johnson stated he was at the scene of the accident after it occurred; did not see the defendant, and did not see the cars while they were moving.

Bedford Penick testified he picked up the wrecked car and described the injury to the car; he knew nothing about the accident or how it occurred.

Prank Burris testified that the cars were on the north side of the road; he did not see the accident, and knew nothing about how it occurred, or who was driving the cars.

Grover Pink, a constable, testified as to the condition of the cars; he did not see the cars before the collision, and knew nothing about how the accident occurred.

Oscar Arnold testified he saw some tracks around the cars after the collision, but did not see the cars until after the accident.

Carl Moline testified, in substance, about the same as Oscar Arnold. Some of the witnesses for the state testified that, while they were at the scene of the accident, some other parties, whom it was claimed were riding in one of the cars with the defendant in this case, were rubbing tbeir feet back and forth on the ground apparently to cover up or erase the tracks of the cars in the road; one witness testified as to one of the parties moving some glass toward the center of the road and rubbing his foot over it; this testimony of some one moving the glass, apparently trying to cover up the tracks of the car, took place in the absence of the defendant, and the testimony fails to show that the defendant had any knowledge of the actions of those parties at the scene of the accident.

No witness for the state testified as to what caused the accident or the rate of speed the cars were traveling at the time they run together. There is no testimony in the record to show that the defendant was driving the car, except what might be termed an extra-judicial confession wherein Eugene N. Catlett, the county attorney, testified that, in a conversation with the defendant, she told him she was driving the car at the time the accident occurred. There is other testimony that in the break of the steering wheel there was some fur which seemed to be the same kind of fur that was on the coat the defendant was afterwards wearing.

No testimony was introduced by the defendant.

The defendant first argues that the information was wholly insufficient to sustain a conviction of manslaughter in the second degree, or any other known offense under the criminal law of Oklahoma. No demurrer was filed to the information by the defendant, nor does the record show the defendant filed any motion to exclude the evidence on the ground that the information did not charge an offense. No motion in arrest of judgment was filed. The sufficiency of an information cannot be raised on appeal unless some foundation was laid therefor before final judgment was rendered, and, where the record shows that no' demurrer was interposed and no motion in arrest of judgment filed after verdict, and no objection or question raised as to the sufficiency of the information in the trial court, the defects, if any, were in effect waived. McGaugh v. State, 12 Okla. Cr. 96, 152 Pac. 140; Love v. State, 12 Okla. Cr. 1, 150 Pac. 913.

No question having been raised by the defendant in the trial court as to the sufficiency of the information, and the information stating facts sufficient to advise the defendant of the charge against her, there is nothing for this court to consider.

The next and only contention argued by the defendant is the sufficiency of the evidence to sustain a conviction of manslaughter in the second degree. The state introduced no proof as to who was responsible for the collision. It occurred on the 27th day of February, 1928, about daylight, and, as shown by the testimony, the accident occurred on the brow of a little hill, the road sloping in both directions from where the accident occurred. The testimony of the state tends to show that the tracks of the cars where they came together were on the north side of the road; that the car the deceased was riding in was a light Ford, and was going west; the car in which it is alleged the defendant was driving was going east, the road at that point running east and west. The contention of the state is that, because the tracks of the cars indicate that the collision occurred on the north side of the road, that is sufficient under our law to sustain the allegations in the information that the accident occurred while the defendant was driving an automobile at a reckless and unusual rate of speed along said Highway No. 9, in Okfuskee county.

Section 1, c. 76, p. 115, of the Session Laws 1927, amended section 10164, C. O. S. 1921. Rule 1 of that section is as follows:

“Vehicles in meeting each other shall keep to the right of the center of the road.”

It is argued by the state that the circumstantial evidence is sufficient to sustain a conviction, and that it tends to show that the defendant, if she was driving the car that collided with the car of deceased, was on the right-hand side of the road as she was going east, and for that reason the defendant is guilty as charged in the information.

The allegations in the information allege that the defendant was driving at a reckless and unusual rate of speed along the said highway; there is no allegation in the information that at the time the accident occurred the defendant was violating a statute requiring that, when one automobile meets another, it must drive to the right of the center of the road; nor is there any proof to sustain the allegations in the information that at the time the accident occurred the car that collided with the car in which the deceased was riding was being driven at a reckless and unusual rate of speed upon the highway; nor does the testimony of the state, giving it the most liberal construction that can be placed upon it, show what rate of speed either of the cars was being driven at the time the accident occurred. The testimony of the state is that the accident occurred on a gravel road at the brow of a a hill, at an early hour in the morning, and that the two cars came together with such force that the deceased was injured, from which injury he died. It is claimed by the state that the defendant was driving at the time of the accident, and there were three others in the car with her. Neither of these parties claimed to have been riding with the defendant was called to testify, the state relying upon the circumstances to establish the allegations in the information.

This court in Matheny v. State, 37 Okla. Cr. 369, 259 Pac. 175, 176, in the body of the opinion, said:

“Under our Procedure Criminal (section 2754, subd. 6, C. S. 1921) a neAV trial shall be granted ‘when the verdict is contrary to law or evidence. Under this provision, the responsibility of determining whether or not there has been adduced before the jury a sufficient amount of legal and competent evidence to render it safe to allow the verdict to stand is imposed upon the trial court in the first instance, and on appeal upon this court.

In Tislow v. State, 36 Okla. Cr. 346, 254 Pac. 511, in the first paragraph of the syllabus, the court said:

“While it is well settled that this court will not disturb a verdict on account of the evidence where there is evidence to support it, the converse rale is equally well settled that it is not only the province but the duty of the court to set aside such a verdict when it is contrary to the evidence, or where there is no evidence to' support it."

In Cummins v. State, 6 Okla. Cr. 180, 117 Pac. 1099, the second paragraph of the syllabus is as follows:

“When in the trial of a criminal cause there is no proof produced which tends reasonably to' sustain the charge, it is the duty of the court to advise the jury to return a verdict in favor of the accused.

In Benson v. State, 10 Okla. Cr. 16, 133 Pac. 271, the first paragraph of the syllabus is as follows:

“While it is well settled that this court will not disturb the verdict on account of the evidence, when there is evidence to support it, the converse rule is equally well settled that it is not only the province, but the duty, of the court to set aside such, a verdict, when it is contrary to the evidence, or where there is no evidence to support it. The performance of this duty on the part of the court is the exercise of legal discretion and judgment as to the sufficiency of the evidence to overcome the legal presumption of innocence, to which every one is entitled who is put upon his trial for an offense.”

In this case the proof on the part of the state is proof only that the deceased died from the effects of the injury received by the two cars coming together. There is no testimony sufficient to sustain the allegations in the information that the defendant was driving the car at a reckless and unusual rate of speed. The statement of the parties who viewed the scene of the accident alone are not sufficient to establish the allegations in the information.

At the close of the state’s testimony the defendant requested the court to advise the jury to return a verdict of not guilty, for the reason that the testimony was insufficient to sustain a conviction. After a careful consideration and study of the evidence, we are of the opinion, as a matter of law, the testimony is insufficient to warrant the submission of the case to the jury, and the defendant’s request to the court to advise the jury to return a verdict of not guilty should have been granted. It follows that the judgment should be, and the same is hereby, reversed.

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


text:
    LUM SUBLETT v. STATE.
    No. A-7399.
    Opinion Filed Sept. 6, 1930.
    Rehearing Denied Oct. 18, 1930.
    (292 Pac. 79.)
    Alonzo Turner and Percy Powers, for plaintiff in error.
    Tbe Attorney General, for tbe State.
   CHAPPELL, J.

Tbe plaintiff in error, hereinafter called defendant, was convicted in tbe district court of Greer county of tbe crime of grand larceny, and bis punishment fixed at confinement in tbe penitentiary for a term of one year.

The evidence of tbe state was that tbe defendant and one L. A. Duffer, who was jointly charged with him, stole two bales of cotton from tbe Willow Gin Company and A. K. Key, tbe manager, and sold them to tbe compress at Mangum. Tbe defendant did not take tbe witness stand and offered no evidence in bis behalf.

Defendant contends that tbe trial court erred in overruling bis demurrer to tbe evidence of tbe state, for tbe reason that tbe same was insufficient to support tbe verdict of tbe jury. All of tbe facts and circumstances in evidence in the case point unerringly to tbe defendant as one of tbe thieves, and are sufficient to support the verdict of the jury.

For the reasons stated, the cause is affirmed.

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


text:
    KAY HUDSON v. STATE.
    No. A-7520.
    Opinion Filed Oct. 25, 1930.
    (292 Pac. 1046.)
    J. S. Garrison, JnO'. T. Young, W. N. Lewis, and Jesse H. Dunn, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and John C. Powell, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Murray county upon a charge of outraging public decency and public morals, and his punishment fixed at a fine of $500 and imprisonment in the county jail for 30 days.

Judgment was rendered and sentence pronounced against the defendant on the 29th day of April, 1929, at which time the trial court granted the defendant 60 days to make and serve case-made, which time would expire on the 28th day of June, 1929. Thereafter, and on the 27th day of June, 1929, the trial court upon application of the defendant extended the time to make and serve case-made 80 days, which extension of time expired on the 28th day of July, 1929, but made no order extending the time in which the appeal must be filed in this court. The appeal was filed in this court on the 27th day of August, 1929.

Section 2808, C. O. S. 1921, provides:

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding 60 days.”

Where the case-made fails to show that the trial court had extended the time within which to perfect an appeal to this court, and where the appeal was not filed in this court for more than 60 days after the rendition of the judgment, this court does not acquire jurisdiction, and the attempted appeal will be dismissed.

For the reasons stated, the appeal is dismissed.

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


text:
    B. F. WALKER v. STATE.
    No. A-7315.
    Opinion Filed May 10, 1930.
    Rehearing Denied Oct. 25, 1930.
    (291 Pac. 991.)

      W. H. Brown and H. W. Sitton, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

B. F. Walker, hereinafter called defendant, was convicted in the district court of Stephens county of the crime of offering a false instrument for record, and his punishment fixed at a fine of $250 and costs.

The evidence of the state was that Amos W. Christy was the owner of certain lands in Stephens, Marshall, and Love counties, and that on the 23d day of September, 1926, he executed a lease for a period of one year of these premises to the defendant, defendant paying $25 at that time and $10 a few days later, the lease being placed in escrow with the First National Bank at Stigler to be delivered to defendant when the balance indicated by a draft attached to the lease was paid to the bank. Defendant failed to pay this draft, and on November 29, 1926, the county clerk of Stephens county received through the mail from Sulphur, Okla., a lease purporting to be executed by Amos W. Christy to E. B. Walker, the wife of defendant, said lease purporting to have been executed by Christy before the defendant as a notary public on November 23, 1926. This lease covered the identical lands of Christy covered by the lease dated September 23, 1926, the consideration for which the defendant had refused to fully pay. This last lease purported to be executed for a period of five years for a consideration of $500, the receipt of which was acknowledged, and it is this lease that is alleged to be false and fraudulent.

The defendant contends first that the evidence is insufficient to support the verdict. Christy was an Indian who bad been under a guardianship and whose lands had been previously leased by defendant. Christy having come of age, defendant started out to deal with him for. the lease of his land. Christy testifying for the state denied that he executed the lease of November 28, 1926, or ever received any part of the $500. Mr. Tillottson, the county clerk of Stephens county, testifying for: the state, said that according to the records of his office this lease was received at 8 a. m. November 29, 1926, from B. F. Walker, the defendant, and that the same was recorded and returned to him at Sulphur, Okla., on the following day. The testimony of the defendant is to the effect that at that time he was living in Sulphur and that he does not remember whether he or his wife forwarded this lease to the county clerk of Stephens county for the purpose of being recorded. The evidence of the defendant shows he did not finish paying for the first lease because there was another man claiming a prior lease on Christy’s land, and testified that the lease of November 23, 1926, was executed by Christy and was a valid existing lease. The evidence was directly in conflict between Christy and the defendant. The facts and circumstances surrounding the transaction corroborate Christy, and there was sufficient evidence before the jury to justify them in finding that the . lease was a false and forged instrument and that the defendant knowing this had caused the same to be recorded.

The defendant next complains that the court erred in giving instructions Nos. 2 and 4. In defendant’s brief his counsel says:

“There is probably not much fault to be found with instruction No. 2 insofar as it clearly states a proposition of law. The fault in the instruction lies in the fact that there is no sufficient evidence whatsoever upon which to base the instruction.”

The argument against these instructions is in effect an argument attacking the sufficiency of the evidence. This court having reached the conclusion that the evidence in this case was sufficient to submit the question of the guilt or innocence of the defendant of the crime alleged to the jury, then no error has been pointed out in the instruction. The instructions complained of fairly state the law of the case as applicable to the evidence and were as favorable to the defendant as the facts would warrant.

Defendant complains of other errors, but they are without sufficient merit to justify a reversal of the case. For the reasons stated the cause is affirmed.

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


author: EDWARDS, P. J.

text:
    HENRY YOUNG v. STATE.
    No. A-7616.
    Opinion Filed Oct. 25, 1930.
    (292 Pac. 867.)

      E. E. Ammons, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of McIntosh county of manslaughter in the first degree, and was sentenced to serve a term of 25 years in the state penitentiary.

The record discloses a state of facts about as follows: At the time charged, defendant attended a country dance at the home of one Martin Davis. He was in an intoxicated condition and raised a disturbance. Davis, who was dancing, went to where he was, talked with him, and an altercation arose in which Davis ordered defendant out of the house and struck him, and at the same time defendant stabbed Davis with a butcher knife, with which he was armed. There is no material controversy as to the circumstances of the* homicide. Defendant testified that he went to the dance and soon after began drinking; that the whisky he drank appeared to have lye or something in it, and that he became so- intoxicated or otherwise affected by the whisky that he had no recollection of the homicide; that he did not have the knife with which the killing was done and denied that he cut Davis.

The principal contention made is that the court erred in refusing- defendant’s requested instructions on the law of self-defense. Five requests, substantially correct, covering the law of self-defense were requested by defendant and refused by the court. The only evidence of a combat under which the question of self-defense could arise is that deceased struck defendant at the time he requested him to leave the house; that immediately thereafter he was cut by defendant. It is well settled that it is the duty of the trial court to instruct on the issue of self-defense when there is evidence reasonably tending to raise such issue. But is there any issue of self-defense in this case? The testimony of defendant is that he was so intoxicated that his act could not be murder. His testimony shows no belief of any danger to himself or that he acted in defense of his person at the time of the fatal difficulty. By his testimony, he elected to defend on the ground that he was so intoxicated he could not form the necessary intent to make the act of killing murder, and thus reduce it to manslaughter. Self-defense is not a possible legitimate deduction to be drawn from his evidence. This is not a new question; the following cases in principle support the rule. Moutry v. State, 9 Okla. Cr. 623, 132 Pac. 915; Sayers v. State, 10 Okla. Cr. 233, 135 Pac. 1073; Murray v. State, 10 Okla. Cr. 530, 139 Pac. 707; Newby v. State, 17 Okla. Cr. 291, 118 Pac. 124; Ussaery v. State, 22 Okla. Cr. 397, 212 Pac. 137; Smith et al. v. State, 22 Okla. Cr. 383, 212 Pac. 1012.

Complaint is also made that the court excluded testimony offered by defendant to show that deceased was a turbulent character. The ruling of the court sustaining objections to questions asked was not followed by any offer of proof as to what the witness would testify. This must be done in order to properly present the question to this court. Sewell v. State, 38 Okla. Cr. 224, 260 Pac. 84; Dobbs v. State, 39 Okla. Cr. 368, 265 Pac. 661. But even if it were admitted that the witness would have testified deceased was a violent and dangerous man, such evidence would not have been material unless an issue of self-defense had been raised. No such issue having been presented, the exclusion of such testimony could not have been prejudicial in any event.

Upon the consideration of the entire record, we find no material error.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    H. N. PATTERSON v. STATE.
    No. A-7627.
    Opinion Filed Oct. 25, 1930.
    (292 Pac. 868.)

      M. D. Hartsell, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of larceny of domestic fowls, to wit, chickens, and was sentenced to serve a term of two years in the penitentiary. Prom which judgment and sentence the defendant has appealed to this court.

The evidence on the part of the state, in substance, is that on Friday night, the 15th of March, 1929, the prosecuting witness Boh Milam was the owner of a flock of chickens, and on said night he lost eight of them; the next day Milam noticed tracks coming and going from the chicken house where the chickens were kept near his residence; Milam then began his search for the said chickens and located them at the home of the defendant, in a yard that had been fenced near an old house for the purpose of keeping chickens. The prosecuting witness claims he recognized the chickens as his chickens, and got his wife to come over to where the chickens were. Bob Milam, his wife, and one other witness identified the chickens as being Milam’s chickens.

The testimony further shows that the defendant, after his arrest, admitted to the officer he stole Milam’s chickens, and gave an account of the taking of the chickens, and all that took place leading up to the trial of this case. He claims he told the officers he was not guilty of the offense charged, and in reply the officer stated to him that if be did not plead guilty bis wife and family would be arrested and all charged with the crime. He says be did not steal the chickens, but bad owned the chickens found at the place for some time before the Milam chickens were stolen, and calls some neighbors who testify to seeing some chickens at the defendant’s home prior to the date of seeing the chickens claimed by the prosecutrix in the yard of the defendant.

Considerable testimony is incorporated in the record as to just what took place when the defendant was in jail, and at the office of the county attorney. It would serve no useful purpose to set out the testimony in detail; the foregoing is, in substance, the testimony of both the state and the defendant.

The defendant urges that the court committed eight errors in the trial of his case. The first, second, and third assignments relate to the sufficiency of the evidence to sustain the conviction. There is a conflict in the evidence, the state witnesses identifying the chickens as belonging to Milam, while the defendant denies the taking of the chickens and shows by his neighbors that prior to the date the Milam chickens were taken he had chickens at his place. A number of neighbors testify as to his previous good character, and the records shows this is the first time the defendant had ever been arrested, or in trouble. It has been repeatedly held by this court that where there was a conflict in the evidence, that was a question for the jury.

In Nowlin v. State, 7 Okla. Cr. 27, 115 Pac. 625, 121 Pac. 791, in the first paragraph of the syllabus, the court said:

“The verdict of a jury will not be set aside for want of evidence to sustain it when there is any evidence in the record from which the jury could legitimately draw the conclusion of the defendant’s guilt.”

In Calvert v. State, 10 Okla. Cr. 185, 135 Pac. 737, in the first paragraph of the syllabus the court said:

“(a) Under the law In Oklahoma controverted questions of fact, involving the guilt or innocence of a person on trial in a court of competent jurisdiction, before a jury, are to be settled exclusively by such jury.
“(b) When an accused is on trial and there is a direct conflict in the testimony between witnesses for the state and witnesses for such accused on the material issues, this court, in the absence of errors of law, will not on appeal reverse a conviction.”

In Davis v. State, 10 Okla. Cr. 169, 135 Pac. 438, this court in the third paragraph of the syllabus held:

“When issues of fact are determined by the jury upon evidence which is sufficient, even though it may be capable of diverse and opposing inferences, this court has no more right than the trial court to substitute its own judgment in the place of that of the jury, or to usurp its legitimate functions.”

The defendant calls attention to the fact that during the course of the argument the county attorney made this statement, in referring to the defendant, and the defendant’s denial of the reason for entering his confession and plea of guilty:

“Don’t you know that is a lie and as base a lie as ever was sworn to.”

This statement was objected to by the defendant as being highly prejudicial, and not based upon the evidence in the case, and the defendant moved that the jury be instructed to disregard the statement, which motion was overruled and the defendant duly excepted. The defendant insists that the question as to whether he had lied was a question for the jury alone to determine, and that the nature of the argument and the court’s remarks might have resulted in a conviction of the defendant.

“The court stated (in overruling the motion) that the county attorney, or any other lawyer in the case, has a right to take the position that anyone who testified in this case lied.”

The defendant cites, in support of his contention that the statement of' the county attorney was reversible error, the case of Williams v. State, 85 Okla. Cr. 171, 249 Pac. 433. An examination of this case shows that the facts are not similar to the facts in this case; in that case the county attorney examining the witness repeatedly asked the question of the witness, while on the stand, if he did not know he had lied. In this case the county attorney was discussing the evidence that had been brought out by the state’s witnesses and defendant while on the stand as to what took place in the justice of the peace office, and in the office of the county attorney prior to the trial of this case in the district court. The county attorney did ask the defendant several times on cross-examination if certain things did not happen while in his office, which the defendant denied. We do not think the case relied upon by the defendant to sustain his position is in point. .

The record in this case contains several pages of testimony that is immaterial and should not have been incorporated in the record to properly try the defendant. We think the county attorney in his argument went further than was necessary to go in the argument, when he made the statement:

“Don’t you know it is a lie and as base a lie as was ever sworn to.”

It is better practice to argue that tbe witnesses have been contradicted. We realize that sometimes in tbe trial of a case, in tbe beat of tbe trial and tbe discussion of tbe evidence, attorneys go far afield and make statements they should not make. In this case we bold the remarks of the county attorney are not sufficient to warrant a reversal. Tbe jury are tbe sole and exclusive judges of tbe weight of tbe evidence and credibility of tbe witnesses, and bad an opportunity to see tbe witnesses while on tbe stand and to judge of their demeanor, and by its verdict it found against tbe defendant.

Tbe testimony is sufficient to sustain tbe judgment, but in view of tbe fact that tbe defendant in this case bad entered a plea of guilty and had been sentenced by tbe court on tbe plea, and upon motion the plea and sentence bad been set aside, all of which was introduced before tbe jury, and tbe defendant examined at length upon tbe reasons that caused him to enter bis plea of guilty, and in view of tbe previous good character of tbe defendant, and in view of tbe further fact that tbe statement by tbe county attorney in bis argument, which in all probability to some extent militated against tbe defendant, we believe that the punishment inflicted in this case, for larceny of the small number of chickens that is alleged to have been taken, is excessive, and that a sentence of one year in tbe penitentiary would be sufficient punishment for tbe crime committed by tbe defendant.

Tbe judgment and sentence is modified from two years in tbe state penitentiary to one year, and as so modified is affirmed.

EDWAKDS, P, J., and CHAPPELL, J., concur.


author: FURMAN, J.

text:
    CHARLEY ARNOLD v. STATE

    No. A-1311.
    Opinion Filed June 21, 1913.
    Rehearing Denied Jan. 26, 1929.
    (132 Pac. 1123.)

      E. L. Mitchell, for appellant.
    Smith C. Matson, Asst. Atty. Gen., for the State.

       This case overruled by Washburn v. State, 47 Okla. Cr. 321, and Roley v. State, 48 Okla. Cr. 60.

   FURMAN, J.

(after stating the facts as above). First. Appellant demurred to the information, setting up 17 different reasons why the information did not state facts sufficient to constitute an offense. The court overruled the demurrer, to which appellant excepted.

Counsel for appellant has displayed great ingenuity and learning in support of his objections to the information, and if the common-law doctrine of a strict construction of indictments and informations prevailed in this state, some of the objections urged by appellant would be good. But these objections are disposed of by the statutes of Oklahoma and the previous decisions of this court.

Section 5753, Rev. Laws 1910, is as follows:

“In an indictment or information for perjury, or subornation of perjury, it is sufficient to set forth the substance of the controversy or matter in respect to which the offense was committed, and in what court or before whom the oath alleged to be false was taken, and that the court or person before whom it was taken had authority to administer it, with proper allegations of the falsity of the matter on which the perjury is assigned; but the indictment or information need not set forth the pleadings, record, or proceedings with which the oath is connected nor the commission or authority of the court or person before whom the perjury was committed.”

For previous Oklahoma decisions as to the sufficiency of an indictment or information for perjury, see Stanley v. United States, 1 Okla. 336, 33 Pac. 1025; Finch v. United States, 1 Okla. 396, 33 Pac. 638; Rich v. United States, 2 Okla. 146, 37 Pac. 1083; Peters v. United States, 2 Okla. 116, 33 Pac. 1031; Gray v. State, 4 Okla. Cr. 292, 111 Pac. 825; 32 L. R. A. (N. S.) 142; Scklumbolm v. State, 5 Okla. Cr. 36, 113 Pac. 235; Meyers v. United States, 5 Okla. 173, 48 Pac. 186; Coleman v. State, 6 Okla. Cr. 252, 118 Pac. 594; Rose v. State, 8 Okla. Cr. 294, 127 Pac. 873.

We do- not see how a person of common understanding could be mistaken as to what was intended by the information in this case, or how appellant could have been misled thereby to his injury.

In the case of Deen v. State, 7 Okla. Cr. 150, 122 Pac. 941, in speaking of the sufficiency of an indictment or information, Judge Doyle said:

“An information is sufficient which states the facts clearly and distinctly, in ordinary and concise language, without repetition, and which, construed under the ordinary rules of construction of I lie English language, would enable a person of common understanding to know what was meant, and to apprise the defendant of the exact nature of the offense with which he was charged, although the same does not contain all the phraseology and technical language ordinarily used in criminal pleading. The modern rule of criminal pleading does not require the use of ancient forms crude phraseology, prolix and abstruse expressions to accompany the averments in an information, if the charge is set forth in plain, common-sense English language. No greater particularity is required than is necessary to express the same fact in everyday parlance.”

It is argued by counsel for appellant that the information does not state a public offense because the statutes of this state do not authorize, the filing of affidavits in support of motions for new trials in criminal cases, except as to newly discovered evidence, and for that reason the crime of perjury could not be based upon an affidavit of this kind because unauthorized. This contention, to our minds, is wholly without merit. It has always been the custom of trial courts to permit the use of affidavits in support of motions for a new trial as to new matter or matters that did not occur upon the trial proper. Misconduct of the jury, such as is set up in this affidavit, if true, would have entitled the appellant as a matter of right to a new trial in this case. Matters of this kind can only be proven by affidavits, or by the court ordering the witness to be brought into court and examined under oath touching, the matters set forth in the motion. That affidavits are proper to be used in proceedings of this kind is clearly fixed by section 5071, Rev. Laws 1910 (section 5864, Comp. Laws 1909), which reads as follows:

“An affidavit may be used to verify a pleading, to prove the service of a summons, notice or other process in an action, to obtain a provisional remedy, an examination of a witness, a stay of proceedings, or upon a motion, or in any other case permitted by law.”

This section is taken from the Code of Civil Procedure, but section 5882, Rev. Laws 1910, provides that the rules of evidence in civil eases are also applicable to criminal cases where the Code of Criminal Procedure does not otherwise provide, and in this instance no' other provision is made. The statute above quoted is a conclusive answer to the objection that the law does not authorize the filing of affidavits in support of motions for a new trial.

In the case of Meyers v. United States, 5 Okla. 173, 48 Pac. 186, the Supreme Court of Oklahoma Territory said:

“From the foregoing it will be seen that perjury may be assigned upon an affidavit made to be used in a judicial proceeding where the statement contained in such affidavit may influence the tribunal or officer before whom the matter is pending, or where it may work an injury to the party against whom it is directed, or where it is pertinent to> the issue being considered, or where the statements tend to support and give credit to the witnesses, or where the matter sworn to is such that the officer or tribunal to which it is presented has the right to consider it in determining the issue presented. And because the matter may not be believed or be inadmissible as evidence, or because action is refused by reason of the statements being, in law insufficient to justify action and the party against whom the affidavit be directed be not injured, still perjury will lie and the courts almost without exception so hold.”

We therefore hold that the trial court did not err in overruling the demurrer to the information in this case.

Second. Section 2219, Rev. Laws 1910, is as follows:

“Perjury is punishable by imprisonment in the penitentiary as follows: (1) When committed on the trial of an indictment for felony, by imprisonment not less than ten years nor more than 20 years. (2) When committed on any other trial or proceeding in a court of justice, by imprisonment for not less than five nor more than ten years. (3) In all other cases by imprisonment not more than five years.”

The court submitted only the punishment authorized by the first subdivision of this section. It is contended by counsel for appellant that this was error. This is the first time that this precise question has ever been before us for decision. It is therefore necessary that we should carefully analyze and consider the entire section in connection with all of its several parts.

There are no degrees of perjury in Oklahoma, but the punishment is divided into three classifications: First. When committed on the trial of an indictment for a felony, by imprisonment not less than 10 years nor more than 20 years. This provision of the statute is free from ambiguity and is not susceptible of two constructions'. To subject a person to' punishment under this provision the perjury must have been committed on the trial of an indictment for felony. This is the plain letter of the law and by it we are bound. It was a clear oversight on the part of the committee revising the Code and of the Legislature in not providing that punishment in such cases should be inflicted for perjury committed “on the trial of an indictment or information.” But the word “information” is not used, and this court has m> right to insert it, for our powers are judicial alone. This court is in no sense of the word a forum of legislation or an arena for political debate. Where there is an ambiguity in a statutory provision then we mnst resort to construction, but we have no power to add to or take from a plain and mandatory provision of the statute. It is not alleged that the perjury complained of was committed on a trial in the district court of Roger Mills county of Jeff Curlee upon the charge of grand larceny on an indictment, hut the record shows that the trial was had on an information and not upon an indictment. Therefore from the plain letter of the law the court erred in submitting the punishment to the jury under this subdivision.

There is also another reason why the court erred in giving this instruction. The perjury alleged to have been committed was not on the trial of an indictment for a felony, but was committed in support of a motion for a new trial, because the trial of Curlee for a felony had ended in his conviction. The trial of a felony begins Avith the impaneling of the jury and extends up to the reception of the verdict. A motion for a new trial is no part of the original trial itself. A defendant must be present during the actual trial, but his presence is not necessary when a motion for a new trial is submitted. See Ward v. Territory, 8 Oída. 12, 56 Pac. 704. The perjury in this case is not alleged to have been committed until after the trial of Curlee had ended. Therefore it was error for the court to give the instruction complained of. But because the court erred in giving the instruction complained of, does it necessarily follow that this conviction should be reversed? By no means should this be the case. It has been the settled policy of this court from the day of its organization not to reverse any conviction where the defendant was fairly tried and clearly proven to be guilty upon any error of the trial court which did not deprive the defendant of a constitutional right. Courts are not established as an arena in which contending counsel may use the processes of the law as a game of shill, but their sole purpose is to enforce justice, punish criminals, and suppress vice, and it is their duty to disregard all errors which do not involve substantial rights and result in material injury to the defendant. This is the fundamental principle upon which all of the decisions of this court are based, and in conformity with this principle we do not hesitate to exercise our power to reform and modify judgments so as to- cure if possible any error committed by the trial court.

We have absolutely no doubt as to the guilt of appellant and that his trial was in all respects fair with the exception of the instruction complained of. It is therefore our duty to see if this conviction cannot be sustained under the other subdivisions of the statute prescribing punishment for perjury. They are as follows:

Second. When committed on any other trial or proceeding in a court of justice, by imprisonment for not less than five nor more than ten years. Third. In all other cases by imprisonment not more than five years.

There is an ambiguity or obscurity as to the true meaning of this second subdivision. What is included in the words “or on any other trial or proceeding in a court of justice?”

In the case of Coleman v. State, 6 Okla. Cr. 252, 118 Pac. 594, it was held that perjury committed in a grand' jury investigation was not included in this second subdivision because not committed on a proceeding in a court of justice, but that such perjury was punishable under the third subdivision of this statute, and that the second, subdision included perjury committed on any proceeding in a court of justice which proceeding might be reviewed by an appellate court. For a full discussion of these distinctions, see the case above referred to.

The second and third subdivisions of this statute cannot be understood without resorting to reasonable construction. By what standard shall this construction be made? Shall it be by the common-law doctrine of a narrow and strict construction? If so, we might reach one conclusion; or shall it be by the modern doctrine of a liberal construction? If so, we might reach another conclusion. The lawyers of this state do not seem to’ realize that this court is unconditionally committed to the doctrine of a liberal construction of penal statutes. We regard the doctrine of a strict construction of the penal statutes as a relic of barbarism which should now be slumbering quietly in the grave with those other legal monstrosities: Bills of attainder and ex post facto laws. It has no more right to survive the progress of enlightenment than the law which gave a man the right to' whip his wife, or the law which permitted the burning of women as witches.

Those courts which wish to do so may follow the common-law doctrine of a strict construction if they see fit, but this court will not parrot-like repeat and blindly adopt and follow their decisions. The lawyers of this state, when they realize and act upon this suggestion, will save themselves an immense amount of time and labor in hunting up and citing authorities from strict construction states. While we are forced to follow arbitrary statutes and to trust to the wisdom of the Legislature for their repeal, yet when it comes to the decision of courts law should be the perfection of reason and the embodiment of justice. From this standpoint there is no such a thing as good law and bad law. A general principle is either the law or it is not the law, and as to whether or not it is the law depends alone upon its reasonableness and justice.

The pivotal point in deciding this question is as to whether or not an affidavit made or deposition not given in open court, but made or given for the purpose of being used on a trial or in any other proceeding in a court of justice, when so used comes Avithin the meaning of the second subdivision of our statute; or as to whether or not such subdivision only includes perjury committed in the actual presence of the court. It may be said that where a witness testifies in open court he cannot be so easily induced to swear falsely as when he makes an affidavit and that on cross-examination in court he has an opportunity to fully explain just exactly what he means, and that therefore it is unfair to hold him to as strict an accountability as he should be held to if he testifies in open court, and that on this ground a distinction should be made between affidavits and testimony given in open court. But if a witness shall be misled into signing a false affidavit and he is prosecuted therefor, he can explain how he came to make the affidavit when on trial for perjury. If it be true that it has become a common habit in Oklahoma for persons to make affidavits upon the mere asking, without knowing anything about the truthfulness of the statements therein contained, the sooner this habit is broken up the better it will be for the morals of the people and the enforcement of justice. An oath taken under any circumstances implies verity, and the habit of careless swearing is something which courts should not tolerate or encourage.

In the case of Town of Checotah v. Town of Eufaula, 31 Okla. 85, 119 Pac. 1015, the Supreme Court of this state held that the word “deposition” as used in the statute includes affidavits. Therefore if a distinction is to be made between affidavits and oral testimony given in court, such distinction should also include depositions. If we hold that those witnesses who take the stand and testify falsely on any trial or proceeding in a court of justice shall be punished under the second subdivision of the statute, and that those witnesses whose affidavits or depositions are used on such a proceeding shall ..be punished under subdivision 3 of the statute, our decision would present an absurdity upon its very face. The oral testimony or the affidavits and depositions were made and introduced for the same purpose and would have the same effect upon the court, and, in the absence of a positive statute to the contrary, common sense, reason, and justice require that all perjury so- committed should receive the same punishment. To hold otherwise would be to violate the Constitution, which in express terms declares that “laws of a general nature shall have a uniform operation throughout the state.” See section 148, Williams’ Const, of Oklahoma.

But suppose we hold that only those witnesses can be prosecuted for perjury under the first and second subdivisions of the statute who testify in open court; there is another still more alarming result which would necessarily follow from such a decision. In fact, its effect would be to make perjury safe in the courts of Oklahoma. To illustrate this: Section 6037, Bev. Laws 1910, is as follows:

“When a material witness for the defendant resides out of the state the defendant may apply for an order that the witness be examined on a commission to be issued under the seal of the court, and the signature of the clerk, directed to' some party designated as commissioner, authorizing him to examine the witness upon oath or interrogatories annexed thereto, and to take and certify the deposition of the witness and return it according to the instructions given with the commission.”

Under this provision of law a defendant in a criminal case in Oklahoma could have his witness remove to another state or to Canada. He could then apply to the court for a commission to take the depositions of such nonresident witnesses by a commissioner designated by the court, and when said depositions were returned they could be read upon a trial. Now, if such witnesses could not be prosecuted for perjury in the court in which their testimony was used, where and by whom would or could they be prosecuted? Could they be prosecuted in the foreign jurisdiction where the false testimony was actually given? The commissioner taking such depositions would derive his authority to do so, not from such foreign jurisdiction, but from the Oklahoma court, and for the purpose of taking such testimony he would be an officer of Oklahoma. Therefore the crime committed would not be against the law where the false evidence was given but would be against the law of Oklahoma where the evidence was used. But even if foreign jurisdictions should treat the officer taking depositions as having power to administer oaths under the laws of such jurisdictions and hold that a crime was committed where the depositions were given by what process could such foreign jurisdictions force witnesses to come from Oklahoma to support a prosecution for perjury? This illustration clearly demonstrates the proposition that, if a prosecution for perjury does not lie in the court in which the deposition or affidavit was used, then perjury may be committed with absolute impunity in such cases, and justice may be defeated and debauched and the courts of Oklahoma degraded. No court worthy of the name will ever so construe a statute as to defeat the object for which it was enacted, and cause it to be used for the purpose of perpetuating wrong and injustice.

We are further fortified in our views by section 2217, Bev. Laws 1910, which is as follows:

“The making of a deposition or certificate is deemed to be complete, within the provisions of this article, from the time when it is delivered by the accused to any other person with the intent that it be uttered or published as true.”

Under this statute the person before whom a deposition is taken or an affidavit is made becames the agent of the giver of such deposition or the maker of such affidavit until it is delivered to the place where it is intended to be used, and that place is the court in which the proceeding or trial is pending. Therefore the crime under the section subdivision of the statute is not complete until the affidavit or information is actually delivered to the court in which it is to be used. From these considerations we are of the opinion that when perjury is committed either in or out of court on any trial or proceeding in a court of justice, the punishment should be inflicted under the second subdivision of the statute. If this is not true then, any man in Oklahoma can be robbed of his property, life, or liberty, or the guilty can be acquitted on the perjured testimony of nonresident witnesses, and the law would not afford any redress. This proposition appears to be so plain to us that further argument or the citation of authorities is unnecessary. It is within the personal knowledge of the writer that during the days of the land forgeries in Texas many men were sent to the penitentiary for forging deeds in Kansas to lands in Texas and sending them to Texas for record. These men had never been in Texas until they were brought there to be prosecuted for forgery. These prosecutions were all upheld by the courts. Some of these cases were participated in by the writer, who was then prosecuting attorney. In the case of Graves v. People, 18 Colo. 170, 32 Pac. 63, the defendant Graves was charged with having sent a bottle of poisoned whisky through the mails from Providence, R. I., to Mrs. Bamaby in Denver, who died there from the effects of drinking said whisky. The writer of this opinion had charge of and conducted the defense of Graves. He then made the best examination he could of this subject and became so thoroughly satisfied that the crime was committed in the jurisdiction where the offense was completed, that he did not even raise the question of the jurisdiction of the Colorado courts to try Graves, and Graves was convicted and sentenced to he hanged, hut on appeal a reversal was obtained upon erroneous instructions of the court and the admission of illegal testimony. We could cite authorities indefinitely in support of our position, hut we think it is a confession of ignorance and evidence of weakness to decide cases purely upon precedent. Any law clerk with a digest at hand can cite authorities in support of almost any proposition. The habit of doing this by courts is the cause of the confusion and conflicts which exist among the appellate decisions in the United States and is responsible for the contempt in which many courts are held by sensible people. We respect the opinions of other courts, but they are not binding upon us. At most, they are only persuasive, and their persausive force depends entirely upon the reason and justice of the principles they announce. We think that the reason and justice of the conclusion at which we have arrived are so manifest that it is unnecessary to cite authorities in support thereof.

To prevent any misapprehension from what is herein contained, we desire to say that if a false affidavit is made in any matter in which an oath may by law be administered, and the affidavit is not used or attempted to' be used in a proceeding in a court of justice, then the punishment should be under the third subdivision of the statute.

To sum the entire argument up with reference to the question now before us and state it in the fewest possible words, the statute does not say that perjury must be committed in open court and during the progress of a trial, but the language is “when committed on any other trial, etc., in a court of justice.” Beyond question the affidavit made by appellant is willfully and knowingly false, and it was made to be used on tbe trial of a motion for a rehearing of Jeff Cur lee which was a proceeding in a court of justice, and with the intention on the part of appellant that it would be attached to and become a part of said motion for a new trial. The trial or proceeding must have been in a court of justice, and the perjured evidence must have been used therein. But the statute does not say that the witness must have perjured himself in the presence of the judge, and a liberal construction of the statute will not so limit its provisions. Therefore, under the doctrine of a liberal construction of the statute, this perjury was committed on the trial of said motion for a rehearing. To insist that under this statute only those who commit perjury in open court can be punished indicates a keener legal discernment and the capacity for seeing smaller things than is possessed by the members of this court. It is an illustration of the truthfulness of that passage of the scripture in which we are informed that sometimes men “swallow camels and strain at gnats.”

Taking this view of the subject, we are of the opinion that the punishment should have been submitted to the jury under the second subdivision of the statute. It is true that there is a great difference between the punishment under the first and second subdivisions, and therefore it might be said that appellant was injured by receiving greater punishment than he would otherwise have received. But this is a defect which is within the power of this court to remove by modifying the judgment and so bringing the punishment within the provisions of the second subdivision as to make it impossible for appellant to have been injured thereby.

Section 6003, Rev. Laws 1910, is as follows:

“The appellate court may reverse, affirm or modify the judgment appealed from, and may, if necessary or proper, order a new trial. In either case, the cause must be remanded to the court below, with proper instructions, and the opinion of the court, within the time, and in the manner, to be prescribed by rule of the court.”

See Turner v. State, 8 Okla. Cr. 11, 126 Pac. 452; Anderson v. State, 8 Okla. Cr. 90, 126 Pac. 840; Fritz v. State, 8 Okla. Cr. 342, 128 Pac. 170.

The punishment fixed by the jury in this case was ten years’ imprisonment, and while it is not an excessive punishment for the offense of which the appellant is guilty, still it is the maximum punishment that could by law be inflicted for that offense under the second subdivision of the statute, and it is at the same time the minimum punishment that the jury were authorized to inflict under the instructions of the court as given, so to our minds it appears that this court cannot say that the defendant was not prejudiced to some extent by reason of the court’s erroneous instruction as to the proper punishment in this case. Noav to what extent could appellant have been harmed? Certainly he cannot be heard to complain if this court modifies the judgment and reduces the punishment to the minimum prescribed by statute.

Under the opinion of the Supreme Court of South Dakota in Re William W. Taylor, 7 S. D. 382, 64 N. W. 253, 45 L. R. A. 136, 58 Am. St. Rep. 843, the sentence in excess of what the law permits does not render the legal or authorized portion thereof void, but only leaves the excess open to question and attack. In this case the punishment is not excessive, but to our minds should be deemed to be excessive by this court because of the limitations placed upon the jury by the trial court in his instructions; the jury having found the minimum punishment it could arrive at under the instructions of the court. For that reason we think that this punishment is excessive, and under the power of this court expressly given by statute to modify as well as to affirm or reverse judgments, the power rests with this court to determine how much, if any, of this punishment under the record in this case is' excessive, and we think that it would be entirely proper that the state should accept a remittitur of five years of this sentence. In support of the position here taken and of the power of this court in this connection we call attention to the following decision: People v. Seller, 58 Mich. 327, 25 N. W. 304. In this case the prisoner was sentenced to' imprisonment for eight years, under the ordinary charge of the larceny of a horse and harness of the value of $175, to which offense he pleaded guilty, and the judgment was reversed to the extent that the imprisonment should be for five years. The court stated that as the law then stood a sentence which was merely bad for excess might be reversed for the excess and left to stand for so much as could be lawfully imposed. See, also, Vaughan v. State, 83 Ala. 55, 3 South. 530; People v. Pierce, 19 Misc. Rep. 83, 41 N. Y. Supp. 858; Daniels v. Commonwealth, 7 Pa. 371; State v. Shaw, 23 Iowa, 316.

In the latter case the court inflicted a fine of $25, which was held to be beyond the amount authorized by the statute; but, as the Attorney General confessed the error and offered to' remit the fine of $5, the judgment was modified and as so modified was affirmed. In our opinion this is the proper course for this court to pursue in this case.

In State v. Brannon, 34 La. Ann. 942, the prisoner was indicted for the crime of larceny and was sentenced to work upon the streets 60 days and pay costs, and in default of payment was condemned to work 20 days longer. The court held that under no law applicable to the case could tbe accused be condemned to additional punishment exclusively to pay the costs of the prosecution, and decreed that the judgment should be amended by striking therefrom that part which imposed additional labor in default of payment of costs, and as thus corrected the sentence should be affirmed. See Lowrey v. Hogue, 85 Cal. 600, 24 Pac. 995, for a similar holding. In other states the judgment has been ordered modified and the case remanded to the trial court to pronounce another judgment in accordance with the appellate court’s order. See State v. Lawrence, 81 N. C. 522; State v. Cook, 61 N. C. 535; and numerous other North Carolina cases.

In Territory v. Conrad, 1 Dak. 363 (348), 46 N. W. 605, where the sentence was in excess and illegal but the defendant was legally and regularly convicted of a misdemeanor, the court affirmed the conviction, but modified the judgment and remitted the case to the court below so that the proper judgment might be imposed. See Hussy v. People, 47 Barb. (N. Y.) 503; People v. Varnard, 6 Cal. 562.

In Hathcock v. Ga., 88 Ga. 91, 13 S. E. 959, the appellate court dictated a modification of the imprisonment part of the sentence so as not to exceed the limits authorized by the statute. See Batzky v. People, 29 N. Y. 124.

In this case a death sentence was passed under a statute that did not govern. The case was reversed as to the sentence, and the record remitted to the court below with directions to pronounce judgment in accordance with the statute governing the case. This was done also in McKee v. People, 32 N. Y. 239.

In Harris v. People, 59 N. Y. 603, the punishment imposed was greater than that fixed by law, as the trial Was legally conducted and the conviction was legal, and the sentence alone illegal, the court refused to reverse the judgment of conviction, but remanded the case to the court below that the proper sentence might be given under the power conferred by statute.

That where a judgment is pronounced in excess of that authorized by law only the excessive part is void, we cite the following cases: Ex parte Sweatman, 1 Cow. (N. Y.) 144; People v. Liscomb, 60 N. Y. 559, 19 Am. Rep. 211; People v. Jacobs, 66 N. Y. 8; People v. Baker, 89 N. Y. 400; Ex parte Shaw, 7 Ohio St. 81, 70 Am. Dec. 55; Ex parte Van Hagan, 25 Ohio St. 526; In re Graham, 74 Wis. 450, 43 N. W. 148, 17 Am. St. Rep. 174; s. c., In re Graham, 138 U. S. 461, 11 Sup. Ct. 363, 34 L. Ed. 1051.

In the last case Mr. Justice Field of the Supreme Court of the United States said:

“That the prisoner should not have been sentenced for any. time in excess of ten years is very evident. When the ten years have expired it is probable the court will order the prisoner’s discharge, but until then he had no right to ask the annulment of the entire judgment. Such being the ruling of the state court, and there being nothing in it repugnant to any principle of natural justice, we think that the reason given for a refusal of the writ of habeas corpus in the court below at the present time was a sound one.”

While there are conflicting opinions upon this question, we think the soundness of the opinions expounding the above doctrine cannot be questioned.

The crime of perjury is one of the gravest felonies known to- the law, and justice cannot be administered alike to the accused as well as to- the people unless the courts administer the proper punishment to- those who have the temerity to enter their portals and on false, perjured testimony acquit the guilty and send innocent men to suffer unjust punishment. The protection of Curlee in his trial from perjured testimony on the part of the state demanded of him that he should not produce in court any witness who he had reason to believe was perjuring himself in his behalf, and how easy it would have been for him to have found out from the jurors in this case that the statements contained in this affidavit were without foundation and void.

Simple justice demands that the man who will enter the courts of this state in an attempt to thwart the just punishment of a guilty criminal and thereby defeat the just and righteous administration of our laws should be severely punished.

While we do not think that the sentence of ten years as imposed by this jury is in any respect too severe to fit the crime, yet in view of the fact that the court, as we believe, by a mistaken impression as to the law limited their consideration to' a minimum punishment five years in excess of what the law provides, it is ordered that the judgment be modified, and that the punishment of appellant be fixed at five years’ confinement in the penitentiary, and that the judgment as modified be in all things affirmed.