text:
    SON HICKMAN v. STATE.
    No. A-5125.
    Opinion Filed Nov. 21, 1925.
    (240 Pac. 1097.)

      Mathers & Coakley, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and V. P. Crowe, Asst. Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the district court of Carter county on a charge of shooting another with intent to kill, the plaintiff in error, hereinafter called defendant, has appealed.

The record discloses that on the 1st day of June, 1923, the defendant and Jodie Hope, at a political speaking at Springer, became involved in a difficulty. The Hope boy was 18 years old and the defendant 19, and they were not acquainted with each other. The circumstances of the difficulty vary widely as to the origin and the details as narrated by the defendant and the prosecuting witness; but they agree that a fight took place, in which the prosecuting witness knocked down the defendant once or twice, and the defendant, with a six-shooter, shot the prosecuting witness through the fleshy part of the leg. It appears that they both were feeling their oats, inclined to be pugnacious and ready to fight. The information is based on section 1756, Comp. St. 1921, and the verdict fixes the punishment at one year in the penitentiary. Upon the conclusion of the evidence, and before the court instructed the jury, defendant’s counsel requested that the instructions define and submit the law of assault to do bodily harm under the provisions of section 1764, Comp. St. 1921, which request was denied.

Only two assignments of error are argued: First. That the court, in its instructions numbered 4, 5, and 6, shifted the burden of proof upon the defendant. Second. That the court erred in refusing to instruct on the lesser offense of assault with intent to do bodily harm. These assignments will be considered in the order presented.

The first assignment is directed to the failure of the trial court in his instructions numbered 4, 5, and 6 to require the proving of guilt beyond a reasonable doubt. In No. 4 the court used the language, “But if the jury find that the defendant had reasonable ground to believe, and did believe from the facts and circumstances,” etc.; in instruction No. 5 the court said, “If you find the contention of the prosecuting witness, Jodie Hope, to be true,” etc.; and in instruction No. 6 the court said, “If you find from the evidence, * * * and you should further find,” etc., without the addition of the term “beyond a reasonable doubt.” This, it is contended, shifts the burden and permits a conviction on a less degree of proof than the law requires, citing: Davis v. State, 4 Okla. Cr. 508, 113 P. 220; Nichols v. State, 10 Okla. Cr. 247, 135 P. 1071; Price v. State, 1 Okla. Cr. 358, 98 P. 447; Floyd v. State, 5 Okla. Cr. 65, 113 P. 212; Smith v. State, 12 Okla. Cr. 489, 159 P. 668.

Considered separately, these instructions would constitute reversible error, but, when considered with all the instructions in the case, we believe that the jury are clearly told that guilt must be established beyond a reasonable doubt. In instruction No. 8 the jury are told:

“If you should find the defendant not guilty, or if upon the whole case and these instructions you should entertain a reasonable doubt as to his guilt, you should find the defendant not guilty, and so say by your verdict.”

In instruction No. 2 the jury are told that the presumption of innocence remains with the defendant until it is overcome by evidence beyond a reasonable doubt.

In the case of Edwards v. State, 24 Okla. Cr. 169, 216 P. 947, this court said:

“The court, instructing the jury in a criminal case, is not obliged to repeat over and over again the words ‘beyond a reasonable doubt,’ where from a reasonable interpretation of the instructions as a whole it must be apparent to the jury that every material issue must be established beyond a reasonable doubt.”

And in the case of McCarty v. State, 21 Okla. Cr. 365, 207 P. 1069, it was said:

“ ‘The principle of “reasonable doubt” is so firmly entrenched in the criminal jurisprudence of this country, and' so well known by jurors generally, as not to require constant repetition of the rule in every paragraph of the instructions, especially where the issues are not involved, and no affirmative defense is interposed.’ * * *
“Where the instructions as a whole fairly cover the law of the case, and are not misleading, although some instructions may be inartificially drawn, the general charge will be held sufficiently comprehensive.”

Supporting the same general rule are the following: Updike v. State, 9 Okla. Cr. 124, 130 P. 1107; Cole v. State, 18 Okla. Cr. 430, 195 P. 901; Little v. State, 25 Okla. Cr. 190, 219 P. 424; Watson v. State, 28 Okla. Cr. 244, 230 P. 521.

While it is a safer rule to use the term “beyond a reasonable doubt” in instructions such as complained of, yet under the record we think the error does not require a reversal.

The second assignment is based on the refusal of the trial court to instruct on the lesser offense of shooting with intent to do bodily harm as an included offense. Section 1756, Comp. St. 1921, under which the prosecution is brought, is as follows:

“Any person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of firearm, air gun or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death or in resisting the execution of any legal process, is punishable by imprisonment in the penitentiary not exceeding ten years.”

Section 1764, Comp. St. 1921, defines an assault with intent to do bodily harm as follows:

“Any person who, with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or air gun, or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding one year.”

Under the charge contained in the information, the defendant might have been found guilty of a shooting with intent to kill as defined in section 1756, or of a shooting with intent to do bodily harm as defined in section 1764.

In the case of Gatliff v. Territory, 2 Okla. 523, 37 P. 810, this court said:

“An assault with intent to do bodily harm without justifiable or excusable cause is included in the charge laid in an indictment of assault with intent to kill, and under our statute which provides that the jury may find the defendant guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment the defendant may be found guilty of the lesser offense of an assault with intent to do bodily harm.”

In the case of Clark v. State, 6 Okla. Cr. 100, 116 P. 200, it was held:

“An assault with intent to do bodily harm by shooting or attempting to shoot at another without justifiable or excusable cause is included in an indictment of assault with intent to kill by shooting or attempting to shoot at another.”

In the case of Lloyd v. State, 15 Okla. Cr. 130, 175 P. 374, it was said:

“In a prosecution for assault with a sharp or dangerous weapon with intent to do bodily harm, the jury may find the defendant guilty of any offense the commission of which is necessarily included in that with which the defendant is charged in the information, and it is the duty of the court to submit to the jury instructions upon every degree of assault which the evidence, in any reasonable view of it, suggests.”

The jury have the right to fix the degree of the crime for which a defendant is convicted, and, when the evidence is such that any doubt is suggested as to which degree of an offense is proven, it is the duty of the court to instruct the jury upon every degree which the evidence suggests, and, even if the court should instruct upon a lesser included offense, though not warranted by the evidence this court will generally not disturb the verdict upon the ground that the defendant was convicted of a lesser offense than that established by the evidence. Warren v. State, 6 Okla. Cr. 1, 115 P. 812, 34 L. R. A. (N. S.) 1121.

But, as we view the evidence in this case, it required an instruction upon the included offense of assault to do bodily harm, and the failure of the trial court to so instruct requires a reversal.

The case is reversed and remanded.

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    EARNEST GILBERT v. STATE.
    No. A-5204.
    Opinion Filed Nov. 23, 1925.
    (240 Pac. 758.)
    J. Q. A. Harrod, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that on the 19th day of August, 1923, in Oklahoma county, Earnest Gilbert did then and there have in his possession and under his control about 10 cubes of morphine, the same being more than one dose; said defendant not being a licensed physician, or authorized under the laws of the United States or state of Oklahoma to administer said narcotic drugs.

On the trial the jury returned a verdict finding the defendant guilty as charged in the information and fixing his punishment at imprisonment in the penitentiary for the term of three years and a fine of $500. From the judgment and sentence rendered on the verdict on December 11, 1923, an appeal was perfected by filing in this court June 9, 1924, a petition in error with case-made.

The defendant is not represented by counsel in this court, and no brief in support of the assignments of error has been filed. However, we have carefully considered them, but find it unnecessary to discuss the same, since we are convinced that no prejudicial error occurred in the admission of evidence or in the giving of instructions, and to which no objection was made or exception reserved.

The evidence shows that three police officers in a Ford car saw the defendant and two others driving west on Grand avenue, and dropped in behind them; that as they turned the corner a box was thrown from the car in which the defendant was riding. The officers found the box, but left it lying there. Shortly after the defendant and another man returned, the car stopped, and the defendant Gilbert got out and walked over to the box, picked it up, and started back to the car. The officer called to him to stop, and he threw down the box, which was found to contain 5 cubes of morphine. Officer Brigman testified that on the way to the police station the defendant said to him, “Let me change that to starch, and I will make it right with you.”

C. E. Clifford, chemist, testified that on his analysis of the contents of the box he found it to be morphine, and that each cube contained 15 grains.

As a witness in his own behalf the defendant testified that he was riding with Otis Scruggs and another boy; that they stopped before they reached the place the officers made the arrest, and Otis got out to see something about the car; that they went another block, and Scruggs told him to get out and see if he was out of gas, and he got out and picked up a stick, and before he could get back in the car with the stick an officer had a pistol on him; then the officer picked up a box and told us to drive him to the station; that he did not ask the officer to let him substitute starch for whatever there might be in the box. His cross-examination showed that he had been convicted in the federal court for selling narcotics.

We think the testimony without any doubt is ample to sustain a conviction, and, there being no material error shown by the record, the judgment appealed from will be affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    H. C. PICKERING v. STATE.
    No. A-5208.
    Opinion Filed Nov. 23, 1925.
    (240 Pac. 1095.)

      H. 0. Glasscock, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case, filed in the county court of Garfield county on the 13th day of December, 1923, charges that in said county “on or about the 6th day of December, 1923, one H. C. Pickering did then and there unlawfully sell four and one-half pints of spiritous and intoxicating liquor, to wit, whisky, to one B. E. Slagle.” On the trial the jury returned a verdict finding the defendant guilty as charged in the information and fixing his punishment at a fine of $100 and confinement in the county jail for 60 days. From the judgment rendered on the verdict, he appeals.

The state relied for this conviction on the testimony of the witness B. E. Slagle, who testified that he lived at Carmen, Okla.; that on December 6th he received a commission as a special policeman in the city of Enid; that on the same day about 5 o’clock in the afternoon he saw the defendant at his place of business, known as the White Kitchen; that on December 7th in the forenoon he again visited the place, and when he went in there were a couple of fellows sitting in there; that he told the defendant he wanted some liquor, the defendant asked him how much, and he told him half a pint, then the defendant filled a pop bottle out of a stone pitcher, corked it, and handed it to him, and he then paid him $2 and walked out; that defendant asked him to come back again; that he turned the bottle over to Chief of Police Butts, who labeled it in his presence. On cross-examination he stated that his duty was to catch bootleggers; that Mayor Carr took him around and showed him the places; that Chief Butts furnished him a list of the names, and he was to receive $10 a day and his expenses. His further cross-examination was as follows:

“Q. I will ask you if you was not in Pickering’s place just one time since you have been here, and that was on the 8th day of December, about 7 o’clock in the evening, and that you were drunk at that time and he had to put you out of there?
“The state objects as incompetent, irrelevant, and immaterial.)
“The Court: Sustained. Exception.
“Mr. Glasscock: Your honor, I want to show—
“Mr. Crow (interrupting) : I object, your honor, only to the last part of it. I just object to the fact that he was intoxicated.”

He was asked about a bogus check he had given tq one Watkins. The county attorney withdrew his objection and asked the court to let the witness explain: “A. Our bank went broke out there, and that is how it happened.”

He was then asked:

“Q. Didn’t you see written on the Watkins check: ‘Insufficient funds.’ A. I don’t know how they were marked. I took up several of them, I know.
“Q. Are you acquainted with a man by the name of McNabb? A. Yes, sir.
“Q. I will ask you if it is not a fact you were with him on the 8th day of December, and that you were drunk at that time? (State’s objections sustained.)”

On the part of the defense, Mrs. Lula H. Pickering, wife of the defendant, testified that with her husband she conducted a small cafe in Enid, known as the “White Kitchen” ; that B. E. Slagle was not in their place of business Thursday afternoon, December 6th, or on December 7th; that the only time he ever visited their place was Saturday evening about 7 o’clock on the 8th day of December; at that time he walked up to her husband and asked him if he had any whisky; her husband told him he did not have any; Slagle said, “I have been informed that I could get whisky here.” Then he staggered back against a table where a lady was sitting, eating supper; that her husband said: “From your looks and actions you have had enough; you had better go home.”

As a witness in his own behalf, the defendant testified that the first time he ever saw the witness B. E. Slagle was Saturday evening, December 8th, when he came into his restaurant and said, “Somebody told me I could get some whisky here,” that he had a bottle with him, about one-fifth full, and said he wanted to get some more whisky; that he told him he did not have any whisky, and he staggered back against a table where a lady was eating, then he told him he had better go on home and go to bed, and he went on out; that he never at any time sold any whisky to B. E. Slagle.

W. E. McNabb testified that he was engaged in the real estate business at Enid for the past eight years and knows B. E. Slagle; was with him on the evening of the 8th day of December. He was then asked:

“Q. I will ask you if he was drunk or sober?
“The state’s objection sustained, the court stating: The court will permit you to show that if the prosecuting witness was intoxicated at the time that this liquor is supposed to have been purchased, and in such a condition that he did not know what he was doing, that may be testified to, and then it will be for the jury to determine the weight to be given his testimony on account of that, but not at any time previous or succeeding this occasion. (Exceptions.)”

Of the various assignment of errors, we deem it only necessary to consider those based on the rulings of the court in the rejection of testimony offered by the defendant.

It will be observed that the information charges a sale of 41/2 pints of whisky, and the proof, if it can be said that the testimony of B. E. Slagle rises to the dignity of evidence, was the sale of one half pint of whisky on a day subsequent to that alleged. The prosecuting witness on cross-examination was asked if he was not drunk at the time of the transaction ¡testified to. The court sustained the state’s objection. The defense again offered to show by witness McNabb that the prosecuting witness was drunk at the only time, according to the testimony of the defendant and his wife, that he ever visited their place of business. The court in sustaining the state’s objection to this question erroneously assumed that the defendant was bound by the testimony of the prosecuting witness as to the time he visited the defendant’s place.

The precise question here presented was passed upon by this court in Prochneau v. State, 32 Okla. Cr. 210, 240 P. 1090. In that case we held:

“The fact that the prosecuting witness was intoxicated at or about the time of the transaction concerning which he has testified may be shown for the purpose of impeaching his credibility, without first interrogating him as to his condition at the time in question.”

In Grim v. State, 32 Okla. Cr. 296, 240 P. 1093, a companion case, we held: witness, which would tend to limit, explain or shed light upon the transaction testified to or which would tend to discredit any testimony given by the witness in chief.”

“Where the state places a witness on the stand who testifies to a transaction, it is the right of the defendant on cross-examination to bring out anything which may have happened during the time covered by the testimony of the

A defendant in a criminal prosecution is entitled to a legal trial, conducted in accordance with the rules of law; and the question of his guilt or innocence should be determined upon legal evidence. Where material evidence has been offered on the part of the defendant, and erroneously rejected by the court, we are not at liberty to say that the error is merely technical, or that the substantial rights of the defendant have not been prejudiced. Any legal evidence from which the jury may legitimately adduce guilt or innocence is admissible, if when taken with other evidence in the case its relevancy appears, and the rejection of competent evidence offered by the defendant constitutes prejudicial error, which, when properly presented to this court by exceptions reserved, will require a reversal of the conviction.

The other assignments seem to be well taken. However, enough has been said' to indicate that we are of the opinion that the defendant did not have such a fair and impartial trial as he was entitled to under the law.

The judgment appealed from herein is, accordingly, reversed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    Ex parte DAVE PLUMLEE.
    No. A-5893.
    Opinion Filed Nov. 24, 1925.
    (241 Pac. 201.)

      Massingdale & Duff, for petitioner.
    The Attorney General and J. G. Springer, Co. Atty., for respondent.
   DOYLE, J.

In this proceeding Dave Plumlee, by his attorney, has presented to this court a petition alleging that he is illegally restrained of his liberty and imprisoned in the county jail of Washita county by John W. Miller, sheriff of said county; that he is so held, under a commitment issued by G. B. Coker, justice of the peace in and for the city of Cordell, based upon a preliminary complaint wherein petitioner is charged with the murder of one William Quisenberry in said county on the 5th day of October* 1925.

It is averred that the petitioner is not guilty of the crime of murder as charged, and under the evidence introduced on his preliminary examination the proof of his guilt is not evident nor the presumption thereof great; that petitioner filed an application for bail before Hon. E. L. Mitchell, judge of the district court of Washita county, and that said district judge denied bail. It appears that petitioner did not testify on the preliminary examination, or before the district court.

Upon the hearing it was the contention on the part of counsel for petitioner that he was entitled to bail from the testimony taken upon the preliminary examination and upon his affidavit. In his affidavit petitioner admits that he killed William Quisenberry by shooting him with a shotgun, and claims that he killed him in self-defense.

The settled rule of this court is that upon application for bail by writ of habeas corpus, after commitment for a capital offense, the burden is upon the petitioner to show facts sufficient to entitle him to bail, and if, upon a consideration of all the evidence introduced on the application for bail, the court is of the opinion that it is insufficient to create a reasonable doubt of the petitioner’s guilt of a capital offense, bail will be refused. Under this rule, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, bail will be refused where, as in this case, the commission of the homicide having been admitted, the defendant does not take the witness stand on the preliminary examination and does not elect to testify in support of his application for bail. Ex parte Lacy, 20 Okla. Cr. 440, 203 P. 1050; Ex parte Hatcher, 22 Okla. Cr. 311, 211 P. 95; Ex parte Adams, 27 Okla. Cr. 123, 225 P. 188.

■ Upon a consideration of all the evidence presented in support of the application in this case we are of the opinion that the petitioner is not entitled as a matter of right 'to be admitted to bail. It is therefore considered and adjudged that the writ be denied and bail refused.

BESSEY, P. J„ and EDWARDS, J., concur.


text:
    R. E. PITCHER v. STATE.
    No. A-5044.
    Opinion Filed Nov. 25, 1925.
    (241 Pac. 199.)

      G. L. Bynum and C. J. Pinkston, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that in Okmulgee county, January 12,1923, the defendant, R. E. Pitcher, did have in his possession one gallon of whisky with the unlawful intention of selling the same. On October 15, 1923, a trial was had and the jury returned their verdict, finding the defendant guilty as charged in the information, and fixing his punishment at a fine of $500 and confinement in the county jail for six months. To reverse the judgment rendered on the verdict he appeals. The errors assigned question the sufficiency of the evidence to sustain the verdict and that the court erred in admitting incompetent and prejudicial evidence.

C. W. Boots testified that with the sheriff of the county he searched the defendant’s home in Henryetta and found about a gallon of whisky under the steps of the house. Against the defendant’s objections he further testified as follows:

“Q. Do you know of your own knowledge as to the defendant being in the booze business ?
“The Court: He can testify of his own knowledge as to the reputation of the premises.
“A. Nothing more than I had complaints about the case is all.
“The Court: Objection sustained. The reputation cannot be shown until you first lay a predicate.
“Q. Go ahead and tell what you know of your own knowledge. A. All I know is I have searched the place before, and found a still when I searched the place before.
“The Court: Objection sustained; not that it is prejudicial, but not responsive.
“Q. Do you know, of your own knowledge, as the premises being a place where people resort to for the purpose of drinking intoxicants. A. I don’t know of my own knowledge.”

The testimony of John Russell, sheriff, is substantially that given by the witness Boots. At the close of the state’s case there was a motion for a directed verdict on the ground that the evidence was insufficient to warrant a conviction, which was overruled.

As a witness in his own behalf the defendant testified that at the time he was a miner, living in Henryetta, with his wife and two small children; that at present he is farming 12 miles from Tulsa; that the whisky found by the officer belonged to him, there being about three quarts; that lie did not have it for the purpose of violating the law, and never did sell any whisky.

In rebuttal, Jim Stormont, chief of police at Henryetta, called.as a witness, testified against the defendant’s objections as follows:

“Q. How' long have you known the defendant, Roy Pitcher? A. Ten or twelve years.
" “Q. Do you know his general reputation in that community as to being a bootlegger ?
“The Court: Objection overruled.
“A. I heard that he was handling whisky.
“Q. Do you know of your own knowledge the general reputation of the defendant in this community as to being a bootlegger?
“The Court: Objection overruled.
“A. Why, yes; I heard that he handles whisky.
“Mr. Bynum: Move to strike the answer.
“The Court: Sustained.
“Q. Do you know the general reputation of the defendant as to being a bootlegger, in the community, as long as you have known him, for 10 or 12 years?
“The Court: Objection overruled.
“A. I found whisky at his place.
“Q. Do you know that reputation? A. Yes; I told you.
“Q. Is it good or bad? A. They say he handles whisky; that’s what I told you.”

It has been repeatedly decided by this court that the state cannot attack the character of a defendant, unless he puts his character in evidence by introducing evidence of good character. Kirby v. State, 25 Okla. Cr. 330, 220 P. 74, 33 A. L. R. 1212; Kirk v. State, 11 Okla. Cr. 203, 145 P. 307; Upton v. State, 12 Okla. Cr. 593, 160 P. 1134; Todd v. State, 30 Okla. Cr. 410, 236 P. 437; Lunceford v. State, 28 Okla. Cr. 120, 229 Pac. 304, and cases cited.

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

We are also of the opinion that there was no competent evidence tending to show the unlawful intent which is an essential element of the offense charged.

For the reasons stated, the judgment of the lower court is reversed, and the cause remanded, with directions to dismiss.

BESSEY, P. J., and EDWARDS, J., concur.


author: PER CURIAM.

text:
    In re HENRY CORNETT.
    No. A-5682.
    Opinion Filed Nov. 25, 1925.
    (240 Pac. 1116.)
    Matson & Mathers, for petitioner.
    The Attorney General, for respondent.
   PER CURIAM.

The petitioner, Henry Cornett, alleges that he is restrained of his liberty and is unlawfully imprisoned in the state penitentiary at McAlester by W. S. Key, warden. The cause of restraint as alleged is that said petitioner was ordered committed to the penitentiary by the bureau of criminal identification and investigation; that said restraint is illegal and unauthorized, in that said petitioner was held in the county jail of Caddo county on a commitment after preliminary examination on a charge of bank robbery, alleged to have been committed in said county, and that petitioner, on the 22d day of June, 1925, was field in said jail awaiting trial on said charge, and on said date, without previous notice to him or to his attorney, and without notice to the county attorney of Caddo county, the sheriff of said county was directed and required by said bureau of identification and investigation to bring petitioner from the jail of said county to Oklahoma City, and was there directed and required to transport the petitioner to the state penitentiary, and to confine said petitioner in said penitentiary on the pretext that said common jail of Caddo county is and was an unsafe place in which to hold said petitioner; that his confinement in the penitentiary, far from the place of his trial, is for the purpose, as he believes and charges, of intimidating petitioner and making it difficult and almost impossible for him to communicate with his attorneys and properly prepare his defense to said charge; that petitioner is not guilty of said charge, ■and has a good defense thereto, and has made no effort to escape from said jail, and at all times observes the rules and regulations of said jail, and is entitled under the laws of this state to be held in a common jail pending his trial on said charge, and not confined in the state penitentiary. It is further averred: “That said petitioner was secretly spirited away to said penitentiary, without his consent and without notice to his attorneys, and petitioner alleges that said warden is now holding said petitioner without any legal commitment for his confinement therein; that said petitioner is kept in solitary confinement in a cell, where it is extremely hot, without good ventilation and dangerous to the life and health of this petitioner; that said petitioner has been denied and deprived of all newspapers and other reading matter, has been given a number in said penitentiary, the same as a convicted felon, and has been subjected to such indignities unlawfully without his consent and over his protest. Wherefore your petitioner prays this honorable court to grant him a writ of habeas corpus, directed to the said W. S. Key, warden of said penitentiary, to produce the body of said petitioner in this court on the - day of July, 1925, and that on said hearing said petitioner be released without delay from such unlawful imprisonment, and that he be remanded to the custody of the sheriff of said Caddo county, to be held in the common jail of said county pending his trial on said charge of bank robbery, now preferred against him in said county.” On the day the petition was presented, a writ to show cause Was entered and issued, returnable July 15, 1925. In response to said rule, respondent answered that he had delivered petitioner back to the sheriff of Caddo county, who has placed the petitioner in the county jail of said county according to the prayer of petitioner. Whereupon the writ was discharged.


text:
    In re TOM PATTERSON.
    No. A-5714.
    Opinion Filed Nov. 28, 1925.
    (240 Pac. 1117.)
    Matson & Mathers, for petitioner.
    The Attorney General, for respondent.
   PER CURIAM.

In the petition filed in this court July 25, 1925, it is alleged that petitioner, Tom Patterson, is unlawfully imprisoned in the state reformatory at Granite, by Dr. G. A. Waters, warden of said reformatory. The cause of said restraint, as alleged, is that said petitioner was ordered committed to the state reformatory by the state bureau of criminal identification and investigation; that said restraint is illegal and unauthorized, “in that said petitioner, on the 2d day of April, 1925, was committed to the county jail of Washita county, Oklahoma, on a charge of bank robbery, after a preliminary examination on said charge, said bank robbery being alleged to have been committed in said county; that said cause has never been tried, and that said petitioner is now awaiting trial on said charge, being held without bond; that since said preliminary examination this petitioner has been confined in the city jail of Oklahoma City, Oklahoma, in the state penitentiary at McAlester, Oklahoma, and in the state reformatory at Granite, Oklahoma, but at no time has he been confined in the county jail of Washita county, at Cordell, Oklahoma, and this petitioner alleges that the common jail of Washita county, Oklahoma, is a safe place in which to confine him pending said trial, and that one Ben Parks, who is jointly charged with him, and who, on the same day, was given a preliminary examination and held to answer said charge, without bond, at said preliminary examination, is now and has been ever since the date of said preliminary examination held in the county jail of said Washita county, awaiting trial; that the confinement of said petitioner in said reformatory is, as he believes and charges, for the purpose of intimidating him and making it difficult and almost impossible for him to communicate with his attorneys and relatives and properly prepare his defense to said charge; that near relatives of petitioner have attempted to communicate with petitioner since his confinement in said reformatory, but the privilege of talking with this petitioner has been denied to them; that petitioner is not guilty of said charge and has a good defense thereto, and is entitled under the laws of this state to be held in a common jail pending his trial on said charge, and not to be confined in said state reformatory; that said petitioner was incarcerated in said reformatory without his consent, and without notice to his attorneys or any of his near relations, and petitioner alleges that said warden is now holding said petitioner without any legal commitment for his confinement therein. Wherefore your petitioner prays this honorable court to grant him a writ of habeas corpus, directed to the said Dr. G. A. Waters, warden of said reformatory, to produce the body of said petitioner in this court, on the -day of July, 1925, and that a hearing be had on this petition on said date, and that on said hearing said petitioner be released without delay from such unlawful imprisonment, and that he be remanded to the custody of the sheriff of Washita county, Oklahoma, to be held in the common jail of said county, pending his trial on said charge of bank robbery now preferred against him in said county.” A writ of habeas corpus was granted as prayed, returnable before this court July 28th. On the return day petitioner was produced in open court and the respondent filed his answer in part as follows: “It is a well-settled rule that prisoners are as a matter of right entitled to consultation with counsel before their conviction. Before an accused has had a trial, he is under the law presumed to be innocent until proven guilty, and is therefore entitled as a matter of right, to prepare for defense. Therefore we are obliged to admit that the prisoner at bar is entitled to hold consultations in accordance with the regular general rules of the institution. The only remaining question is what should be done under the circumstances. The petitioner’s petition prays release from the Granite reformatory. We have agreed that he is entitled to hold consultation with his lawyers and that his near relatives be permitted to visit him in accordance with the regular general rules of the institution concerning such matters. Therefore the only matter remaining is as to whether or not the court will grant the request made by the prisoner in open court, or his prayer in his petition. In his petition he seeks release from the Granite reformatory. In his oral request in open court he requests to remain in the Granite reformatory. We therefore respectfully submit to this honorable court that, as we have agreed that the petitioner may hold consultation with his lawyers and that his near relatives may visit him as above mentioned, the writ of habeas corpus prayed for be denied, and that this court recognizes the order of commitment of the district court of Washita county, issued on August 3, 1925, properly committing the prisoner to the Granite reformatory, and that this court order that he be held in the Granite reformatory pending his regular trial for the Canute bank robbery charge.” On the hearing it appeared that after this petition was filed, and on August 3, 1925, pursuant to an application filed in the district court of Washita county by the county attorney of said county to have petitioner confined in said reformatory at Granite, said district court, E. L. Mitchell, Judge, issued an order of commitment, and further ordered “that petitioner’s attorneys and his near relatives be allowed to converse privately with said petitioner, subject to the rules and regulations of said reformatory,” and on behalf of petitioner it was stated that he had no further objection to remaining in said reformatory. Upon consideration of the pleadings, the evidence offered, and argument of counsel, it was ordered that said petitioner be remanded to the custody of Dr. G. A. Waters, warden, and further ordered that the near relatives of said petitioner be permitted to visit, converse, and consult with him, and that said petitioner be allowed to receive and forward mail, subject to the rules and regulations as may be in force in said reformatory. It was further ordered that said petitioner be allowed to consult privately with his counsel at all reasonable times.


text:
    In re LOUIS VIRGIL NORTON.
    No. A-5674.
    Opinion Filed Nov. 28, 1925.
    (240 Pac. 1117.)
    E. C. Patton, for petitioner.
    The Attorney General, for respondent.
   PER CURIAM.

The petitioner says that he is illegally restrained of his liberty by Henry Law, sheriff of Blaine county; that the cause of his restraint is that the petitioner was convicted of the illegal sale of intoxicating liquor in the state of Louisiana, and was sentenced to serve a term of 30 days in jail and to pay a fine of $300; that he served the jail sentence and worked on the parish roads and highways for a period of 3 months, when the sheriff of the parish voluntarily discharged the petitioner, in order that he might arrange for the balance of the fine, amounting to $200; that thereupon the petitioner came to his home in Watonga, where he undertook to raise sufficient money to pay the fine, but was unable to do so; that thereafter the Governor of Louisiana issued a requisition for his return to that state, and the petitioner was taken into custody and incarcerated in the jail of Blaine county, where he was kept for a period of 14 days, awaiting the arrival of the authorities from Louisiana, and then released; that again the petitioner was arrested on demand of the Louisiana sheriff, and again placed in the jail of Blaine county, and he now asks that a writ of habeas corpus issue, and that he be given his liberty. Upon the showing made and the evidence heard, the court finds that this is an effort to collect a fine in the nature of a debt, and that the writ should be and is hereby allowed, and the petitioner discharged.


author: PEE CUEIAM.

text:
    In re WALTER CRAIG.
    No. A-5421.
    Opinion Filed Nov. 28. 1925.
    (240 Pac. 1116.)
    J. Antrobus and A. E. Darnell, for petitioner.
    The Attorney General, for respondent.
   PEE CUEIAM.

The petition herein filed February 6, 1925, recites that Walter Craig is illegally restrained of his liberty in Oklahoma City by C. C. Jones and L. L. Libby, sheriff and deputy sheriff, respectively, of Dewey county, and that said peace officers are illegally detaining the petitioner on request of the sheriff of San Miguel county, N. M. Pending the hearing of the application, the respondent was admitted to bail in the sum of $2,000. The hearing of the application was continued from time to time, and upon the day last set for hearing, March 20, 1925, the petitioner failed to appear, and his bond was ordered forfeited. The application of the petitioner is dismissed.


text:
    Ex parte ALEX HILL.
    No. A-5770.
    Opinion Filed Nov. 28, 1925.
    (240 Pac. 1116.)
    Welch & Welch, for petitioner.*
    The Attorney General, for the State.
   PEE CUEIAM.

This was an application by petitioner, Alex Hill, to this court for a writ of habeas corpus, directed to N. F. Kirkpatrick, sheriff of Pushmataha county, filed in this court August 24, 1925. Thereon a rule to show cause issued, returnable before this court September 1, 1925, at which time counsel of record for petitioner moved to dismiss the case, on the ground that said petitioner had been discharged from custody upon bail as fixed by the district court of said county. It was thereupon ordered that said case be dismissed.


text:
    In re D. H. HUNNICUTT.
    No. A-5346.
    Opinion Filed Nov. 28, 1925.
    (240 Pac. 1117.)
   PER CURIAM.

This was an application by D. H. Hunnicutt to this court for a writ of habeas corpus, directed to W. A. Ricker, sheriff of Noble county. The writ was granted as prayed, and made returnable before the district court of Noble county. Claude Duval, Judge. Said district court in due time reported that a hearing was hadi upon the application, the writ denied, and the petitioner remanded to the custody of said sheriff, which report was by this court approved.


text:
    In re Wm. A. NICHOLSON.
    No. A-5491.
    Opinion Filed Nov. 28, 1925.
    (240 Pac. 1117.)
    A. F. Pyeatt, for petitioner.
    The Attorney General,' for the State.
   PER CURIAM.

The petition herein states that the above-named petitioner is unlawfully restrained of his liberty in Oklahoma City by Frank Boone, who represents himself to be the agent of the Governor of the state of Kansas; that such detention is under authority of an executive warrant for the arrest of the petitioner and his return to the state of Kansas for trial in a criminal action. The petitioner was admitted to bail pending further hearing on the petition. On March 19, 1925, by agreement of parties, the custody and possession of the petitioner was delivered to A. F. Pyeatt, attorney for the petitioner. It is now made to appear that the matters and things in controversy have been settled to the satisfaction of all parties interested and that the petitioner is now at liberty. The application for the writ is therefore dismissed.


text:
    In re J. H. ROBERTS.
    No. A-5742.
    Opinion Filed Nov. 28, 1925.
    (240 Pac. 1118.)
    A. H. Meyer, for petitioner.
    The Attorney General, for respondent.
   PER CURIAM.

The petitioner states that he is illegally restrained of his liberty by H. J. Law, sheriff of Blaine county, and has been so held for a period of six days without being given an opportunity to make bail, upon a charge of bank robbery. Upon consideration of the application, the petitioner is allowed bail in the sum of $5,000, to be approved by the county judge of Blaine county. The bond as ordered was executed, and the petitioner set at liberty.


text:
    Ex parte WILMA WOODHOUSE.
    No. A-5800.
    Opinion Filed Nov. 28, 1925.
    (240 Pac. 1118.)
    Huggins & Huser, for petitioners.
    The Attorney General, for respondent.
   PER CURIAM.

This is an application for writ of habeas corpus on behalf of Wilma Woodhouse for writ of habeas corpus, directed to J. A. Doyle, sheriff of Seminole county, filed in this court September 12, 1925. On the same day rule to show cause was issued, returnable September 16, 1925, at which time said sheriff filed his answer, showing that he was holding said petitioner under orders of Thos. O. Criswell, county judge of Seminole county, acting as a juvenile judge. Thereupon counsel of record for petitioner filed a motion to dismiss, and for grounds of such motion states: “That the said Wilma Woodhouse is no longer imprisoned and restrained of her liberty, by reason of the juvenile court’s revocation and modification of the commitment heretofore made and entered. Wherefore petitioner prays the judgment of the court dismissing said petition.” Thereupon it was ordered that said cause be dismissed.


author: EDWARDS, J.

text:
    J. E. YOUNGBLOOD v. STATE.
    No. A-5112.
    Opinion Filed Nov. 28, 1925.
    (240 Pac. 1100.)
    E. H. Bond, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State. .
   EDWARDS, J.

From a conviction in the county court of Stephens county on a charge of transporting intoxicating liquor, the plaintiff in error, hereinafter called defendant, has appealed.

The evidence is very brief, and on the part of the state is that of two police officers who testify that they were traveling on the highway east of Duncan, saw the defendant, who was traveling on foot, called to him to halt, that he did so and threw a bottle, of the appearance of a catsup bottle, at a post, and that they recovered the bottle. One of the witnesses testified he tasted the contents, and the other that he smelled it, and it was corn whisky. They testified further that at the time the defendant told them that he had found the bottle farther down the road andj showed them the place where he claimed to have found it; that one of them delivered the bottle to the sheriff.

The defendant testified that he was walking along the highway and found a bottle, apparently a catsup bottle, containing a small quantity of liquid, that two other persons came to him there and they tasted the contents to see if it was whisky, but that it was unfit to drink, and they poured it out, and that he carried the bottle with him until apprehended by the police officers, and that when, hailed he threw the bottle at a post and broke it, as he did not want them to find him with it in his possession. There was some other evidence in corroboration of the defendant’s testimony. The sheriff testified that he did not recall that the police officers delivered the whisky to him, and that he did not have possession of it.

Two witnesses in behalf of defendant testified that they saw him pick up a bottle on the highway, and that he called to them, and they went to him and tasted the contents of the bottle, that it appeared to be a very “rotten” grade of whisky, unfit for drinking, and that it was there poured out.

At the close of the evidence for the state, and just before the close of the entire evidence, the defendant demanded .the production of the bottle and contents alleged to have been seized, which request was by the court overruled. Upon this record it is contended that the evidence is insufficient to sustain a conviction.

Section 7016, Comp. St. 1921, requires that all liquors seized by any officer, either with or without a search warrant, shall, within five days, be delivered to the sheriff of the county and the sheriff’s receipt taken, that the sheriff shall retain the same until destroyed by order of court, and .that such liquors shall be preserved for use as evidence in the trial of any action growing out of such seizure, and the officer seizing such liquors shall mark the bottles or containers for identification by writing thereon the date of the seizure and the name of .the person from whom seized. The sheriff is made liable on his bond for the safekeeping of such property. In the following section it is made a misdemeanor for any officer to fail to comply with the provisions of the preceding section.

This court has held that a failure to comply with the provisions of the statute referred’ to does not render invalid a search lawfully made. Such statute evidently was enacted to prevent a misapplication or misuse of property seized under the gambling laws and the prohibitory liquor laws. It is not, however, always essential that the intoxicating liquor used in the violation of the law be' introduced in evidence, but the wisdom of the statute referred to is manifested in a case of this kind, where the proof is of an inconclusive and unsatisfactory character. Under the evidence, the liquor in question, if it existed, should, upon the request of counsel, have been produced, that it might be introduced in evidence. If it did not exist or had not ■been delivered to the sheriff, such fact would tend to corroborate the theory of the defendant. We are not satisfied that the guilt of defendant has been proven with that degree of certainty required by law.

The case is reversed and remanded.

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


author: BESSEY, P. J.

text:
    Ex parte H. B. ZOBISCH.
    No. A-5530.
    Opinion Filed Nov. 28, 1925.
    (240 Pac. 1102.)
    See, also, 29 Okla. Cr. 288, 233 P. 766.
    A. G. Morrison, for petitioner.
    The Attorney General, for the State.
   BESSEY, P. J.

The petition states that the petitioner is restrained of his liberty by Henry Law and Roy Brewer, sheriff and deputy sheriff respectively, of Blaine county; that the cause of said restraint, as petitioner has been informed, is on account of a prosecution begun in the city of Geary for a violation of a city ordinance providing for an occupation tax, and for which he was convicted in the county court of Blaine county.

The penalty prescribed for a violation of this ordinance was a fine of not less than $100 nor more than $200 and for imprisonment of the offender until the fine and costs should be paid. At the trial before the police magistrate the petitioner demanded a jury, which was by the court allowed. After the jury was summoned, the petitioner objected to the jurisdiction of the police magistrate, for the reason that the penalty prescribed by the ordinance was beyond his jurisdiction to impose. After a verdict of guilty the police magistrate certified the case to the county court, stating that he had set aside the verdict of the jury and that “the law provides that said cause should be certified to the county court of Blaine county.”

In the county court the petitioner again objected to the jurisdiction of the court, where the objection was again overruled. The trial proceeded, resulting in a conviction, with the penalty assessed at a fine of $100 and costs and imprisonment until the fine and costs should be paid. From his incarceration under this conviction the petitioner asks that he be discharged.

In the case of Ex parte Daugherty, 21 Okla. Cr. 56, 204 P. 937, it was held that section 1, c. 147, Session Laws 1915, as amended by Session Laws 1917, p. 190, c. 127, provid^ ing for the trial of municipal offenses before a justice of the peace or the county court, is inoperative, as being in conflict with section 57, article 5, of the Constitution of this state, providing that every act shall embrace but one subject which shall be clearly expressed in the title. Moreover, this act did not provide for a transfer from the magistrate’s court to the justice of the peace or county court.

It is not necessary to decide whether this prosecution might be considered as an original one in the county court, because the record discloses that the prosecution was commenced in the municipal court. And when the magistrate decided that he was without jurisdiction to assess a fine of $100, coupled with imprisonment for its nonpayment, he could not, by an unauthorized transfer of the case to the county court, confer jurisdiction on that court.

It has been held in numerous cases that it is beyond the power of a police magistrate, as the law now stands in this state, to enforce a penalty for the violation of an ordinance where the punishment may be a fine in excess of $20 for the nonpayment of which the accused may be imprisoned. Ex parte Daugherty, supra, and cases therein cited; Ex parte Johnson, 20 Okla. Cr. 66, 201 P. 533; Ex parte Bochmann, 20 Okla. Cr. 78, 201 P. 537.

It follows, therefore, that the county court was without jurisdiction for two reasons: First, that the magistrate had no jurisdiction of the offense in the first instance, and could confer no jurisdiction when he had none; and, second, that there is no authority in law for the transfer of a criminal prosecution pending before a municipal court to the county court.

The writ is allowed, and the petitioner discharged.

DOYLE and EDWARDS, JJ., concur.


text:
    PEARL ALLEN v. STATE.
    No. A-5670.
    Opinion Filed Oct. 30, 1925.
    Rehearing Denied Nov. 28, 1925.
    (240 Pac. 1075.)
    A. W. Whitfield, for plaintiff in error.
    The Attorney General and Fred Hansen, Asst. Atty« Gen., for the State.
   PER CURIAM.

The Attorney General has filed a motion to dismiss the appeal in this case, for the reason that the judgment in this trial court was rendered on March 2, 1925, and that under the laws of the state of Oklahoma, under the extension of time granted defendant by the trial court, said defendant had 120 days from the date of the rendition of judgment to file his appeal in this court, which time expired on the 30th day of June, 1925; that the appeal was not filed in this court until July 1, 1925, the 121st day from the rendition of judgment; and that therefore this court has no jurisdiction to entertain this appeal.

An examination of the record, and of the motion of the Attorney General, with affidavits attached, shows that this appeal was filed too late, and that the appeal should be and the same is hereby dismissed.


text:
    SAM WALTON v. STATE.
    No. A-5118.
    Opinion Filed Oct. 24, 1925.
    Rehearing Denied Nov. 28, 1925.
    (240 Pac. 666.)
    Turner, Turner, Harley & Parris, for plaintiff in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the district court of McIntosh county for a second violation of the liquor law, the plaintiff in error, hereinafter called defendant, has appealed. The only assignment argued for a reversal of this case is that the evidence is insufficient to sustain the verdict. The evidence of the previous conviction of the defendant for a violation of the liquor law is not controverted. The evidence of his guilt in this case is about as follows: On the night of the 3d of May, 1923, three officers in the town of Eufaula, having received some information of a violation of the liquor law, were on the lookout, and intercepted an automobile driven by Wash Stover and his wife. In the back seat of the car was the defendant and his brother-in-law, Emmet Roberts. When the car stopped, a breaking of jugs and bottles was begun by the parties in the back seat, and the defendant threw a jug of whisky out, which was recovered unbroken. The defendant in his own behalf' testified that he accompanied the parties, but had no part in transporting the whisky; that he was merely the official taster, and went along only to drink; that he did not break any of the containers or throw any of the whisky out of the car. His brother-in-law, Roberts, testified that he went from Eufaula in the car in question after whisky, and that the whisky in the car was his; that he and the bootlegger from whom he bought it put it in the car, and when the car was stopped by the officers he broke the containers and) threw part of the whisky out, and that defendant was with him merely as a drinking guest. It is not unusual for one of two law-breakers to assume all the responsibility for the commission of a crime, and the jury were justified in taking the testimony of Roberts with a grain of salt.

The evidence on the part of the state is such that the jury might reasonably and logically find the defendant was engaged in the transportation of the whisky in question, and, although the defendant offered testimony that he was not engaged nor concerned in the transportation, still it was a question of fact for the jury to say whom they would believe or disbelieve, and we are not at liberty to disturb the verdict for insufficiency of the evidence; that was a question for the jury. The rule is so well settled that it is no longer necessary to cite authorities.

The case is affirmed.

BESiSEY, P. J., and DOYLE, J., concur.


text:
    JOHN M. SHIELDS v. STATE.
    No. A-4993.
    Opinion Filed Sept. 14, 1925.
    Rehearing Denied Nov. 28, 1925.
    (240 Pac. 661.)

      Freeling, Hood & Howard, for plaintiff in error.
    George F. Short, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for the -State.
   EDWARDS, J.

From a conviction on a charge of larceny of an automobile, the plaintiff in error, hereinafter called defendant, has appealed.

The record discloses a state of facts about as follows: On March 30, 1922, one J. L. Duncan, a resident of Oklahoma City, parked his car, a Ford coupe, on Main street, near the Criterion Theater, left it and was away about SO minutes and when he returned his car was gone. About 20 days later he found this car, much altered in appearance, parked on Main street. The tires had been changed. It had a new license tag, new bumpers, a new steering wheel. The fender braces had been removed and the numbers altered and probably other changes. He called officers of the police department, who watched the car, and soon Mr. R. H. Gardner and others came and got in to drive away, when they were accosted and informed that the car belonged to Duncan. Mr. Gardner, who was a business man of the city, immediately informed them that he had purchased the car from defendant. Thereupon Duncan, Gardner, and the police officers went to the office of the defendant and had a conversation with him. Several subsequent conversations were held between Duncan, the police officers, and the defendant, which will be referred to later. An information was filed, charging the defendant and H. V. Owen jointly with larceny of the automobile in question. A severance was taken and at the trial of the defendant H. V. Owen testified in behalf of the state. The defendant had been a resident of Oklahoma City for many years, was engaged principally in the real estate business, and was of considerable means and influence. His codefendant, H. V. Owen, had been a citizen of Oklahoma City for several years, was engaged principally in the secondhand automobile business, and had formerly been in the employ of the defendant as a real estate salesman.

It is the theory of the state that the defendant did not personally physically steal the car in question, but that he was implicated in the theft* received the car in question, had the alterations made by his codefendant, Owen, and was the real criminal. It is the theory of the defendant that he bought the car with others from his codefendant, Owen, and openly' handled them, and had no connection with the theft or knowledge that they were stolen. The defendant assigns various errors, which may be summar rized as follows: First, insufficiency of the evidence; second, error of the court in refusing requested instructions with reference to possession of recently stolen property; third, error of the trial court in comments on the testimony in the presence of the jury; fourth, error in refusing requested instructions upon the law of accomplice. These assignments will be considered in the order presented.

Considering the first assignment; i. e., insufficiency of the evidence, the larceny of the car is established beyond question and its possession traced to the defendant a few days after it was stolen. Upon being questioned, the defendant made an explanation of his possession. When first questioned, he appeared nervous and offered to pay for the car. When asked from whom he got the car, he stated he did not know and said, in substance, that a nice dressed man came in, put up a hard luck story and sold him the car for $500 in cash; that he knew the man when he saw him, did not know his name or where he lived, and did not take a bill of sale. In the course of investigating the defendant’s connection with this car, it was ascertained that during a short time he had handled five other stolen cars, all Ford coupes, except one, a Cadillac. As the possession of the different cars was traced to the defendant, he was questioned about them in various conversations, and stated that he bought them from the same person from whom he bought the Duncan car, had no bills of sale, and always paid cash. ,

The evidence would indicate that defendant sought to conceal his connection with the cars and made untruthful explanations of his possession. J. L. Duncan testified as follows:

“Q. Did you have any conversation with Mr. Shields then about this car? A. Yes.
“Q. Tell the jury the substance of your conversation you had? A. Well, Mr. Wolf, my wife and myself went back over to his office — rather I met my wife in front of his office and we all went into his private office. I asked him from whom he had bought this car, and he said he didn’t know, and he oifered to pay me for it or return my car. I told him I would like to know who the thief was more than I wanted the car. He said he didn’t know who he bought it from.
“Q. Did he tell you where the man lived, or that he knew where he lived? A. No; he didn’t say. He said he did not know. He said he was a nice dressed man, walked in there and sold him the car. * * *
“Q. I will ask you if at any of these conversations he told you the name of the party from whom he bought it? A. No; he did not. Not until after — I don’t know about the time — this information was filed against him he told. ‡ ífí $7?

Fred Smith, of the stolen car department of Oklahoma City, testified in reference to statements made by defendant:

“* * * Q. What did he say and what did you say, or any one say in your presence or his presence? A. He was taken up to the chief’s office and the chief asked him where he bought the car.
“Q. What did he say? A. He bought it from a man that he didn’t know what his name was; didn’t know where he was; knew him when he seen him.
“Q. Knew him when he saw him ? A. Yes.
“Q. Did he furnish you any other description of the man other than what you had told the jury? A. No. * * *
“Q. Was anything said with reference to whether or not he had a bill of sale for the car at that time? A. Well, we asked him if he had a bill of sale, and he said he didn’t have.
“Q. You say that was the first conversation you had with him? A. That was the first conversation.
“Q. He said he didn’t have? A. Said he didn’t have a bill- of sale.
“Q. Now then, did you see him again that day, after this first conversation ? A. I don’t know whether we saw him again that day. or not. We'saw him the next day.
“Q. What was the occasion of seeing him the next day? A. Went to see him about another car.
“Q. What kind of a car was it? A. Ford coupe.
“Q. Whose car was it, if you know? A. Why Mr. C. C. Cantrell had that car. * * *
“Q. When he came to the police station, what was said to him with reference to this Cantrell car, and what did he say? A. We asked him if he bought this car. * * * Said it was the same party that sold the other car, the Duncan car. Asked him if he had a bill of sale, and he said he didn’t. * * *
“Q. What other conversation was had at the time he talked to you about this Cantrell car? A. Well, we asked him if he had bought any more.
“Q. What did he say when you asked him that? A. He said he had not — that was all. * * *
“Q. State whether or not at the time you talked to him about the Duncan car, the Cantrell car, and the Hale-Fox car there was anything said on the part of this defendant as to manner he paid for these cars. A. Yes; we asked him.
“Q. What did he say ? A. What he paid on each of these coupes — he told us he paid $300.
“Q. And did he say how he paid it? A. In cash. * * *
“Q. Have you had any further conversations with him later about any other cars? A. We did.
“Q. When was that with reference to this date? Was it the next day or several days after? A. Why, we got a car that Miles F. Smith was supposed to have, after that.
“Q. Did you talk with Mr. Shields about it? A. We identified that car and called Mr. Shields and asked him about it.
“Q. What did he say with reference to that car? A. He said he bought — that was one of the cars he bought, and that time we asked him if he had any deals with any more of them, and he said at that time that was all he had anything to do with. * * *
“Q. Now, with reference to a bill of sale, was there anything said different from what you have already told the jury regarding a bill of sale at a later date? A. There was after he first talked with Mr. Wright.
“Q. What was said with reference to a bill of sale? A. After he talked with Mr. Wright, he told us he had a bill of sale to all of the cars. * * *”

Harry Wolf, a police officer of the stolen car department of Oklahoma City, testified:

“* * * Q. Just tell the jury everything that you can recall of the conversation in the presence of Mr. Shields— I mean that day? A. Well, I tried to find out where Mr. Shields had got the car.
“Q. What did Mr. Shields say to you in that respect? A. He said he had bought it from a man whom he knew real well, but he didn’t know his name and didn’t know where he lived, but he seen him most every day or two on the street, and wouldn’t be any trouble to get hold of him. * * *
“Q. Just tell the jury the substance of the conversation you had with him? A. Well, the conversations didn’t vary a great deal. They were about along the same line each time.
“Q. Just relate the substance as nearly as you can. A. We tried every way we could to find out where Mr. Shields had got these cars and who he had bought them from and how much he paid. He first stated he didn’t have any bill of sale for any of the cars and later produced a bill of sale for each and every one of them. * * *
“Q. Now, did you have any conversation with him concerning the second of these six cars you testified about ? A. The conversations were all about the same. He said that he had bought the cars from this fellow who brought them to the office or somewhere over there, and he looked the cars over and sent them up to Owen’s place for inspection and to have the wheels changed and a bill of sale made out and one thing and another. * * *
“Q. What did he tell you in that respect, if anything? A. He said he bought this Cadillac from the same party he got the other cars from, and he paid $800 cash out of his pocket.
“Q. What if anything, did he say as to where he lived? A. Didn’t say where he lived. * * *
“Q, What did he say in that respect? A. He said he got all of the cars from the same party.
“Q. Did you ask him the name of this man? A. Yes.
“Q. What did he say? A. Said he didn’t know. * * *
“Q. Did you learn about all of these six cars at the same time or different dates? A. No, sir; we learned of— after we got the Duncan car, we learned of Mr. Cantrell's car. After we got Mr. Cantrell’s car and identified it, then Chief Binion at that time called Mr. Shields over and talked to him about it and asked him if he had any more cars. He said he absolutely did not have any other cars; had not bought any more. * * *
•‘Q. What did he say to you about the bill of sale? A. Well, he said he didn’t have a bill of sale for about the first week, I think.
“Q. Then at any later time did he make any statement concerning the bill of sale? A. Yes; later on he showed me a bill of sale to one car, and then later on he had a bill of sale for all of them. I think he told me at that time some one had got in his desk and stole them. This was a week or 10 days after we first asked him. * * *”

H. V. Owen, jointly charged with the defendant, a witness for the state, testified as follows:

“* * * Q. Are you the H. Y. Owen that is charged jointly in this case with Mr. Shields? A. Yes. * * *
“Q. State whether or not you ever worked out of his office? A. I did.
“Q. About how long was that? A. I was — I believe in the summer or fall of 1918 or somewhere. It was along in 1918 — no; I never worked with him in 1918. It was 1919 or 1920. * * *
“Q. Did you have any occasion, or any kind of transaction with Mr. Shields on the 6th day of April, this year? A. I did.
“Q. I wish you would tell the jury in detail all the facts concerning that transaction? A. Well, it was along in the morning or forenoon or was in the morning — in the forenoon perhaps — oh, it was after 9 o’clock, between 9 and 10, Mr. Shields called me up and told me the party or man was in town, and he would be up to my place, and to fix him out a bill of sale and deliver the car.
“Q. Just tell all the details of it you can — the details of the conversation? A. I did that. The man came up, I guess — oh, within 30 or 40 minutes after Mr. Shields called, and, when he came in, he had a bill of sale already made out. Mr. Shields had told me to get a lock — steering wheel lock and wheel for the car. I did that.
“Q. When had Mr. Shields told you that? A. That was in the conversation over the telephone.
“Q. Tell the jury everything that he told you in that conversation over the telephone? A. Well, that was about all with the exception of the steering wheel and lock combination. And, when the man came, I went over to either Lyons or the Southern Motors Supply, I am not positive, and bought a Spencer steering wheel — lock wheel. Came back and put it on the car and — the lock wheel on the car, and delivered the lock and wheel, the car, the keys and everything to Mr. Shields.
“Q. Where did you deliver it to Mr. Shields? A. At his office.
“Q. Where did you drive the car? A. In the alley between the Liberty Theater and Mr. Shields’ office.
“Q. Where did you deliver the key? A. In Mr. Shields’ private office; that is, it is just west of his main office and fronts on Robinson street, and I delivered the— then. He has a private office back of his main office and he has a side entrance out in the alley. I delivered the lock, the keys, and the bill of sale and the license receipt to Mr. Shields.
“Q. Where did you get that bill of sale? A. The bill of sale — the man had the bill of sale made out.
“Q. That is the man that took the car up to your place? A. Yes; the man that delivered the car to me.
“Q. Where did you get the license receipt that you delivered to Mr. Shields ? A. He delivered the license receipt with the bill of sale.
“Q. That is the man that delivered the car up at your place? A. Yes. * * *
“Q. Now what was said by you or Mr. Shields when you delivered to him the bill of sale and the keys and the license receipt for this car? A. Well, I guess Mr. Shields was in the back office, and I had taken the bill of sale and license and keys in to him and left the car in the alley and just walked in and told — I believe he was sitting down at this desk, I am not positive, he has a window, counter across the south — south window, and he came up there, and was just standing on the corner of the desk like this desk would be the same way, and, if I remember, I would be east this way, and there is a little kind of a place between the door and the desk, and I just stood at the corner of the desk and Mr. Shields got up and had his hand out, and I handed him the keys and everything, and had the license receipt and the bill of sale folded up, and gave me $25 and $9.50 — he gave me $3'4.50.
“Q. What was the $9.50 for? A. $9.50 was the wholesale price of the Spencer lock and wheel. * * *
“Q. What was he paying you this $25 for? A. Well, it was for making up the bill of sale on the car and delivering it to Mr. Shields.
“Q. A little louder? A. I say for making out the bill of sale on the car and for just — generally looking after the car, I suppose, or putting the wheel on there, a little extra labor on that as a voluntary payment. The $25 was a voluntary payment from Mr. Shields.
“Q. Did you have any other transaction with him? A. I did.
“Q. On that line? A. Yeg.
“Q. How many had you had? A. Five.
“Q. Prior to this? A. Yes.
“Q. Was the five including this or five excluding this? A. There was six total. * * *
“Q. Mr. Owen, I believe you testified this morning1 that you had seen this man that brought this car to your place of business, that is, the Duncan car, on some former occasion? A. Yes. * * *
“Q. What was the occasion of your seeing this man? A. Mr. Shields brought him up there. * * *
“Q. Did you see him on any other occasion prior to this Duncan car? A. I did.
“Q. How many occasions? A. Prior to the Duncan car, I believe I seen the man five times — no, six times, I believe, prior to the Duncan transaction.
“Q. Was it an occasion that you had similar transactions? A. Yes. i
“Q. What kind of a car was involved in that? A. Ford coupe. That was the third occasion.
“Q. Did you have any knowledge of that man coming up with this car before he did arrive with it? A. Yes.
“Q. Where did you get that information? A. From Mr. Shields.
“Q. How would you get the information? A. Well, at that time I had no telephone, and Mr. Shields would come up with — to the yard himself. * * *”

The defendant in his own behalf testified:

“Q. Now, then, the next transaction you had with Mr. Owen was on the 6th day of April, 1923? A. It was. * * * A. About 8:30 on the morning of April 6th Mr. Owen called me at my office and says, T have a real nice Ford to-day.’ Says, ‘Got all modern conveniences on it.’ He says, ‘Has big wheel on it and various things,’ and I asked him what he wanted for it. Well, he said he ought to have a pretty good price for that, with all this extra equipment on it. ‘Well,’ I says, ‘I wouldn’t give over $300 for a second-hand car,’ and we talked over the ’phone and he says, ‘Well, I will take $300 for it.’ * * * A. Mr. Owen called me and said he had this car for sale, and I told him I would take it. He says, T wish you would get me money for it; I don’t want any check.’ I says, ‘All right,’ and when the bank opened I went to the bank and got $300 and came back to the office and says, ‘Mr. Owen, I am going to the Franklin Garage to have my car fixed up. * * *’
“Q. Now, Mr. Shields, at the time you met Mr. Owen, on North Broadway, near 6th and Broadway, had he delivered to you this car that has been identified as the Duncan car? How did you pay him for that car? A. Paid him $300 in cash.
“Q. You carried the money up there? A. I did.
“Q. Did you receive a bill of sale? A. I did. * * *”

In reference to his conversation with Duncan, he testified:

“Q. He asked you where you got it? A. He may have.
“Q. Do you recall whether he did or didn’t? A. I don’t recall it just now.
“Q. I will ask you if he didn’t ask you where you got the car and you told him you didn’t know or that in substance? A. I told him I knew the man from whom I got the car. I knew I had gotten it from Vic Owen.
“Q. I will ask you if Mr. Duncan didn’t ask you the name of the man or give him the name of the man or that in substance of the party from whom you got the car ? A. I don’t know.
“Q. And you told him that you did not know his name ? A. I didn’t know from whom I had gotten the car. I knew I bought it from Vic Owen, but I didn’t know the man who made the bill of sale. * * *”

This, with other evidence on the part of the state, shows the recent possession of stolen property by the defendant, and that defendant procured his codefendant, Owen, to have alterations made in the car in question. His explanation of his recent possession of the car when first questioned is in conflict with his subsequent explanation, and indicated a concealment of facts. This evidence is contradicted, in part, by the testimony of the defendant and by incidental evidence in corroboration and by proof of good character.

The presumption arising from the possession of recently stolen property is one of fact and not of law. It is a circumstance for the jury to consider and weigh along with all the other evidence in the case. If the possession is unexplained, or if it is unsatisfactorily explained, or the explanation, even though plausible, is not believed, the jury will accord it such weight as they deem right and proper. They are the sole judge as to its weight, and when such fact with the other facts and circumstances in evidence, when given due weight, satisfy the jury beyond a reasonable doubt of defendant’s guilt, it is sufficient to sustain the verdict. Slater v. U. S., 1 Okla. Cr. 275, 98 P. 110; Davis v. State, 7 Okla. Cr. 322, 123 P. 560; Gunter v. State, 18 Okla. Cr. 476, 184 P. 797; Cheeves v. State, 18 Okla. Cr. 480, 196 P. 726; West v. State, 19 Okla. Cr. 355, 198 P. 99.

Here the jury heard and observed the witnesses. Their verdict conclusively shows that they believed the evidence for the state and disbelieved that of defendant. This question as to who should be believed was within their province. This court does not have the power to become triers of fact and weigh conflicting evidence. Where the evidence and the reasonable and logical deductions to be drawn from it reasonably support the verdict, this court will not set aside the verdict for insufficiency.

Defendant also assigns as error the refusal of the trial court to give instructions requested in reference to possession of recently stolen property. The requests state correct principles of law, but it is not every correct statement of law upon a subject that should be embodied in an instruction. The court gave no charge on the weight or probative effect of evidence of possession of stolen property. This court has consistently held that possession raises a presumption of fact, and not a presumption of law, as was said in the case of Askew v. U. S., 2 Okla. Cr. 155, 101 P. 121:

“The culpatory inference to be drawn from the possession of property recently stolen is not a presumption of law, but is a deduction of fact to be drawn by the jury alone, unforestalled by any instructions from the court upon the weight of the evidence.”

And in such opinion quoted, we find in the case of Lehman v. State, 18 Tex. App. 174, 51 Am. Rep. 298, it is said:

“As a general rule, if a person in whose exclusive possession goods recently stolen are found fails to give a reasonable account of his possession when it is incumbent upon him to do so, the inference of guilt arising from the possession and the recent theft is sufficient to sustain his conviction of the theft. Nevertheless, this inculpatory inference is not a presumption of law, but is a deduction of fact to be drawn by the jury alone, unforestalled by any instructions from the court upon the weight of the evidence. But when this inculpatory possession constitutes the only evidence criminative of the accused, the case is one of circumstantial evidence alone, and the legal principles which control that species of proof should be given in charge to the jury.”

The court correctly and fully instructed on the law of circumstantial evidence, and that the jury were the sole and exclusive judges of the facts proven, the weight of the evidence, and the credibility of the witnesses, and it was not error to refuse a more specific instruction in reference to recent possession of stolen property.

It is next assigned as error that the trial court commented on the testimony of defendant, Shields, while he was testifying on cross-examination. The record shows the following to have taken place:

“* * * Q. I will ask you if Mr. Duncan didn’t ask you the name of the man, or that, in substance, of the party from whom you got the car? A. I don’t know.
“Q. And you told him you did not know his name? A. I did not know from whom I had gotten the car. I know I had bought it from Vic Owen, but I didn’t know the man who made the bill of sale.
“Q. Answer the question.
“Mr. Howard: (for defendant) I think he has answered it.
“The Court: Answer the question. No; I think he is avoiding it.
“Mr. Howard: Give us an exception to the remarks of the court. * * *”

The defendant had not answered the particular question. His counsel did not interpose objection in the usual way, but instead himself commented on the answer of the witness by stating, “I think he has answered it.” The statement by the court, “No; I think he is avoiding it,” was brought about by the statement of counsel, and is in a sense invited. This is not a new question, but has been many times before this court and the Supreme Court of this state, and it has been well said that remarks made by a trial judge in the course of a trial in the presence of the jury which may affect the character and credibility of the witness are an improper invasion upon the province of the jury. It is clearly the duty of a trial court to refrain from allowing his actions or words to indicate to the jury his opinion of the credibility of any witness, and, where the comments of the court are such as to indicate his opinion, they will be deemed prejudicial. Wilson v. Ter., 9 Okla. 331, 60 P. 112; Hicks v. United States, 2 Okla. Cr. 626, 103 P. 873; Reed v. State, 5 Okla. Cr. 365, 114 P. 1114; Harrison v. State, 11 Okla. Cr. 14, 141 P. 236; Koontz v. State, 10 Okla. Cr. 553, 139 P. 842, Ann Cas. 1916A, 689; Shepherd v. State, 17 Okla. Cr. 630, 192 P. 238; Chambers v. State, 28 Okla. Cr. 156, 229 P. 646.

The rule announced, however, does not forbid a trial judge making any statement in explanation of his ruling. We think the statement here made, along with the other parts of the record, cannot reasonably be construed to be a reflection on the defendant, nor a comment on his character or credibility. It was for the court to say by his ruling whether or not the witness had answered the question, and while that might have been done by a mere dissent from the statement of counsel, or a direction that the witness answer, the addition by the court of the words used is not reversible error, particularly as those words were directed not to the jury but to counsel. 16 Corpus Juris, 827; State v. Surry, 23 Wash. 655, 63 P. 557; People v. Mooney, 132 Cal. 13, 63 P. 1070; City of Guthrie v. Carey, 15 Okla. 276, 81 P. 431.

The last assignment is based on the refusal of the court to instruct on the law governing the evidence of an accomplice. The instructions requested by defendant correctly state the law. Section 2701, Comp. St. 1921.

There is no contention under the statute and the many holdings of this court that a conviction cannot be had upon the testimony of an accomplice, unless his testimony is corroborated by such other evidence as tends to connect the defendant with the commission of the crime charged, and the corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof. So well is this settled, that it is not necessary to cite authorities. Here the defendant and the witness H. V. Owen were jointly charged with the crime for which the defendant was being tried. However, it is not the fact that a person is jointly charged with another that makes him an accomplice. In order to make an accomplice, it is necessary that the evidence show participation in the crime charged. State v. Shlagel, 19 Iowa, 169; Sizemore v. Commonwealth (Ky.) 6 S. W. 123; People v. Kosta, 14 Cal. App. 696, 112 P. 907; State v. Spotted Hawk, 22 Mont. 33, 55 P. 1026.

In the trial of the case it was not the theory of either the state or the defendant that Owen was an accomplice of •the defendant. There was no effort to show that any immunity was promised Owen and the presumption Is that he testified voluntarily. Dumas v. State, 19 Okla. Cr. 413, 201 P. 820.

■The state contends that the defendant procured the car to be stolen and had it taken to the place of business of the witness Owen, where alterations were made. It was not the theory of the state that Owen was connected with the larceny of the car. The defendant contended that he was innocent, knew nothing of the larceny of the car, and under such theory could have had no accomplice. The same reasoning applies to the witness Neff, who had some connection with the car in question. The testimony of both the defendant and Owen is that they were not accomplices. To have instructed upon the law of accomplice would have been contrary to the theory of both the state and the defendant ■and to the evidence of the witnesses. Under this state of the record it was not error for the trial judge to refuse .the requested instructions on the law of accomplice.

We have considered the thorough briefs, both of the state and the defendant, and have read the record with care, and find no error requiring a reversal of this case.

The case is therefore affirmed.

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


text:
    JEFF KIRK v. STATE
    No. A-4917.
    Opinion Filed Nov. 28, 1925.
    (241 Pac. 205.)

      Carlile & Wall, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for the State.
   EDWARDS, J.

From a conviction of manslaughter in the first degree, in the district court of Sequoyah county, the plaintiff in error, hereinafter called defendant, has appealed.

Briefly stated, the record discloses a state of facts about as follows: On the night of the 9th of March, 1923, in the little town of Marble City, the defendant, with a revolver, shot and killed Mack Dodson. It is the theory of the state that the defendant provoked the difficulty on account of the friendship of the deceased toward a young woman with whom defendant was keeping company. The defendant contends that the difficulty was provoked by the deceased, and that the killing was in his necessary self-defense.

The assignments of error argued in the brief may be considered under two propositions: First, error of the court in permitting the use of witnesses whose names were not correctly indorsed on the information; second, insufficiency of the evidence. These contentions will be considered in the order named.

The first error claimed is that the court allowed Dr. Holcomb to be used in chief by the state as a witness. The name indorsed upon the information was “Dr. Holcomb, Marble City,” without using the initials. Also that the court erred in permitting Lola May Carlton to be used by the state in chief. The name indorsed upon the information was “Miss Carlton of Marble City.” It is not suggested that the list of names required by the Constitution to be served upon the defendant at least two days before the trial did not contain the correct names, nor that the defendant was in any wise prejudiced by failure of the state to more definitely identify the witnesses. It affirmatively appears that the defendant was not prejudiced by the failure of the state to give the first name or the initials of the witnesses Dr. Holcomb and Miss Carlton. No objection was made before going to trial and none until the witnesses were called and sworn. This court, in the case of Galbert v. State, 12 Okla. Cr. 573, 160 P. 332, in passing upon a similar contention, said:

“The only other matter defendant complains of is that among the names of the witnesses served on him, under the constitutional requirement, the only cognomen ascribed to one witness was ‘Rev. Walker,’ and, further, that the post office address of the first witness was given at Maxwell, Okla., and instead of writing the words, ‘Maxwell, Okl,.’ after each successive name, that only ditto marks appeared under the words ‘Maxwell,’ and ‘Oklahoma’ opposite the names of all the other witnesses, and contends that this was a serious infringement upon his constitutional rights. But the purpose of the constitutional provision that ‘in capital cases, at least two days before a case is called for trial, the defendant shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations in the indictment or information, together with their post office addresses,’ is to apprise the defendant who the witnesses are and where they may be found, and thus enable him to investigate their character, learn what their testimony will be, and take whatever steps he may desire to offset or le-but their evidence; and if the defendant in this case had not been able to locate the witness Walker by the cognomen given, or did not understand what these ditto marks meant, and had been misled by reason of their use, he should have made his troubles known to the court before announcing ready for trial. But he did not do this. He answered ready for trial, and waited until Rev. Walker was called upon the witness stand, and then objected to his testifying on the grounds above set out. But the objection came too late.”

In the case of Walker v. State, 10 Okla. Cr. 533, 139 Pac. 711, it was held:

“We cannot give our consent to a construction of the constitutional provision that would necessitate a reversal c-f the judgment from the record in this case. It is sufficient to say that, where it affirmatively appears that the defendant has not been misled to his prejudice by the omission of the given name of a witness, whose surname and post office address appeared upon the list furnished to the defendant, he is not entitled to a reversal because the testimony of such witness has been received.”

Upon this view of the case, if the names indorsed on the information so indefinitely described, the witnesses that the defendant was not able to investigate their character or testimony and was misled, some suggestion should have been made to the court prior to announcing ready for trial, and when that was not done the objection, if it had any merit, is waived.

The second assignment is that the court should have sustained the defendant’s demurrer at the close of the state’s evidence and should have sustained his motion for a new trial on the ground of insufficient evidence. The state offered the evidence of several witnesses to show a motive for the killing of the deceased by the defendant. Lola May Carlton testified that, about two or three days before the homicide, she heard the defendant tell Velma Gossett that he was going to kill the next boy he caught going with her. Lillian Lee testified that she was present when that conversation was had, and heard the defendant say that he would kill the next boy he caught Velma Gossett with, and that Velma replied, “You need not care who I go with,” and that the defendant said, “All right, you are my girl, and I will kill him the next time you do.” She further testified that later she saw the deceased, Mack Dodson, in company with Velma Gossett. Mildred Lee and Helen Lee testified to substantially the same effect.

Mamie Crouch testified that shortly after the homicide she saw defendant go to his sister’s house and put his pistol on her dresser, and that at the time he appeared angry.

Clifford Woodward testified that a few minutes before the homicide he saw defendant going down the street, and a few minutes afterward the deceased passed going in that direction, and in some ten or fifteen minutes he heard shots; that Mack Dodson was killed about a block from where he saw him pass. The deceased was shot in the left breast, and was dead when the physician reached him about fifteen minutes later. There was some evidence that for some three weeks after the killing the defendant was a fugitive. He later came in and surrendered.

The defendant contends that his demurrer to the evidence at the close of the state’s case should have been sustained. With this contention, we do not agree. In so grave a matter as a charge of murder, if there is any evidence fending to connect a defendant with the commission of the crime charged, a demurrer or a motion to direct a verdict should not be sustained by the court, but the question of guilt or innocence should be submitted to the jury.

The circumstances proven were such that the court did not err in overruling the defendant’s demurrer. The defendant then offered evidence of several witnesses to the homicide who testified concerning the homicide; their evidence tending to prove self-defense. Two of these witnesses, Boy Sloan and Brodie Diffee, admitted that at an inquest held over the body of the deceased they had sworn falsely in giving testimony that they were not present at the time of the homicide and knew nothing about it. The 'defendant testified in his own behalf that he and Boy Sloan and Brodie Diffee were together when the deceased came up and provoked the difficulty, struck the defendant and was choking him, when defendant called to them to take deceased off of him, but, as they did not seem to be moving, he reached in his hip pocket, got his gun, and punched the deceased with it two or three times, called again to the boys to take him off, and told the deceased he was going to shoot him, and the deceased then struck him on the ear, and he shot him.

The evidence of the state is circumstantial. While the evidence of the defendant and the witnesses Sloan and Dif-fee is that of eyewitnesses, the credibility and weight and value of the evidence, and the inferences to be drawn from it, is for the jury, and, where the evidence is such that the jury may reasonably and logically find the defendant guilty, the verdict will not be disturbed.

The case is affirmed.

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