text:
    C. F. CLOWERS v. STATE.
    No. A-3281.
    Opinion Filed Nov. 1, 1919.
    Rehearing Denied Feb. 9, 1920.
    (184 Pac. 790.)
    (Syllabus.)
    1. RAPE — Evidence—Sufficiency. In a prosecution for statutory rape, the evidence considered, and conviction affirmed.

      2. EVIDENCE — Predicate For AdmBssion of Letter. In a trial for statutory rape, a note or letter was properly admitted, where the prosecutrix testified that she received the same from the defendant, and there was proof that the same was in his handwriting.
    3. RAPE — Improper Acts of Prosecutrix as Defense. Proof that the female was guilty of improper relations with other men is no defense to the charge of statutory rape.

      Appeal from District ‘Court, Hughes County; Geo. C. Crump, Judge.

    C. F. Clowers was convicted of statutory rape, and he appeals.
    Affirmed.

      J. L. Skinner and Pruiett, Sniggs & Patterson, for plaintiff in error.

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

C. F. Clowers was charged, in an information filed in the district court of Okfuskee county, with the crime of statutory rape, alleged to have been committed upon Alva Strain, a child under 16. years of age. On his application a change of venue was granted, and the case was duly transferred to Hughes county, where upon his trial he was convicted and his punishment fixed at imprisonment in the penitentiary for a term of five years. From the judgment rendered on the verdict, he appeals. The alleged errors will be considered in the order presented.

First. It is contended that the evidence is insufficient to sustain the verdict and judgment of conviction. The record shows that at the time charged the defendant was principal of the school at Beardon; that he was a married man, about 29 years of age; that the prosecutrix attended said school, and at the time charged — March, 1917 — she was under the age of sixteen years, her fifteenth birthday being in February, 1917. The prosecutrix testified in substance as follows:

That she had been attending school at Beardon since she was old enough to go to school, and during the years 1916 and 1917 the defendant was principal or superintendent, and there were four other teachers; that before the close of the term in 1916 the defendant began taking liberties with her, such as hugging and kissing her, and then soliciting her to permit him to have sexual intercourse with her, and she consented; that he arranged to have her meet him out in her father’s orchard; that his first and second attempt to accomplish an act of sexual intercourse failed, because it hurt her; that the second week after school started in the fall of 1916 she met him by appointment in her father’s barn, and that was the first time he accomplished an act of sexual intercourse; that after that he frequently had sexual intercourse with her in a closet in the sehoolhouse and also in the lodge room on the third floor of the sehoolhouse, and during that term of school this occurred sometimes every day, and then three or four times a week; that he always used “rubbers,” and said he used them to prevent babies from coming; that R. At Johnston, Will Hendrix, and Opal Frogge told her that they had been watching and knew of her relations with Prof. Clowers, and that it had better be stopped; that unless she would give them the same privilege that she had given him they would tell it; that she refused to do that; that she informed defendant as to what they had said, and he said he ought not to have been so careless, but could not help it now; that they could not prove anything, and, if they did, he could sue them for slander. She also identified an unsigned note as one that she had received from him. No man had ever had sexual intercourse with her, except the defendant. Will Hendrix came into the closet one time after Prof. Clowers had left, and asked her what she was doing in there, and said he came in for a baseball bat or something.

R. A. Johnston testified that he was 17 years of age; that he attended the Beardon school during the years of 1916 and 1917, and was in the same grade as Alva Strain; that some time between the 24th of March and the 1st of April, 1917, he, with Opal Frogge and Bill Hendrix, went into a closet under the stair steps of the school building and found a pallet, and he picked up a comb that he knew belonged to the defendant, so they watched and a day or so later found the door of the closet locked, and they went outside and looked in the window, but could not see anything; that they then went back up the stairway, where there was a,hole inside the window; that they crawled into the hole one at a time, and when he looked C. F. Clowers and Alva Strain were having sexual intercourse; that they watched the door, and in five or six minutes Prof. Clowers unlocked the door and came out; then Bill Hendrix went into the closet to get a baseball bat, and Alva Strain was sitting in there on a box; that he saw her there, and Bill Hendrix spoke to her; that the next day, after the third period in the afternoon, he with the same two boys crawled into the same place, one at a time, and he witnessed another act of intercourse, and watched and saw that it was the same two persons; about two days later he again witnessed the same act at the same place and about the same time; that usually before this happened Prof. Clowers left the schoolroom by one door and Alva Strain would leave by the other door; that after they had observed this conduct seven or eight times he in the presence of the other two boys told Miss Strain that they were aware of what was taking place between her and Clowers in the closet below the stairway and that they would like for her to stop this conduct, and she held her face in her hands and thanked them and told them she would. His cross-examination was in part as follows:

“Q. Didn’t Prof. Clowers catch you up in the closet with Alva Strain? A. He did not.
“Q. And didn’t he call you and Will Hendrix into.his library room and tell you of it? A. He did not.
“Q. And didn’t he tell you that if he was a mind to he could put you in the penitentiary for what you were doing? A. He did not.”

Bill Hendrix testified that in the month of March, 1917, he was present when R. A. Johnston picked up the comb from the pallet in the closet under the stairs, and he knew the comb belonged to Prof. Clowers, and the boys agreed to watch the place. The very next day Alva Strain left the schoolroom, and1 about three minutes later Prof. Clowers left, and he and Johnston and Frogge followed him; that about halfway up the steps there is a window that leaves an opening, and he crawled into this opening and looked into the closet and saw Prof. Clowers and this girl having sexual intercourse. The other boys, one after another, looked through this opening. When Prof. Clowers came out, he went into the closet for a baseball bat, and Alva Strain was sitting in there. He asked her what she was doing down there, and she said, “Nothing; I have been down here since the history class; I got so sleepy up there.” That the next day they watched, and the same thing occurred about the same period in the afternoon; that he with the other boys observed this conduct seven or eight times during the month; that later he saw the defendant hug and kiss Alva Strain in the lodge hall; that one day, while she was up there waiting for him, they told her what they had observed, and she began to cry, and said that Prof. Clowers led her into it. On cross-examination he was asked:

“Q. About the 15th of March, did Miss Lucile Pen-dleton catch you and Alva Strain in an act of intercourse in that closet? A. She did not.
“Q. Now, just a short time before school was out, did Prof. Clowers have you and R. A. Johnston in the library room talking to you in regard to Alva Strain? A. No, sir; he did not.
“Q. Didn’t he tell you in the library room that Miss Pendleton had caught you having intercourse with Alva Strain, and that he caught R. A. Johnston, and that you were ruining yourselves and that girl? A. He did not.”

The testimony of Opal Frogge was in substance the same as that of the witnesses Johnston and Hendrix. Other corroborating testimony was given, which we deem it unnecessary to state.

A number of witnesses were called, who testified to the defendant’s good character. Miss Lucile Pendleton testified that she was one of the teachers at the Beardon school, where'the defendant was superintendent; about the middle of March, 1917, she went upstairs to ring the bell at noon, and' heard a noise, and looked into the middle room of the lodge hall, and saw Alva Strain lying on the floor with her dress up, and Bill Hendrix there with his trousers unbuttoned; that she said to them, “What does this mean?” and they never answered; and she said, “I am going to report •this to Prof. Gowers;” that she did,report it to Prof. Gow-ers that same evening; that after this she heard Prof. Gowers say to Will Hendrix and R. A. Johnston, “Boys, nothing like this can go in this school.” On cross-examination she stated that she had never mentioned this occurrence to any other person.

Mrs. Gowers, wife of the defendant, testified that she had a conversation with the prosecutrix in reference to her conduct with Will Hendrix and R. A. Johnston, and told her that her husband had informed her that he caught R. A. Johnston having intercourse with her, and that Miss Pendleton had caught Will Hendrix having intercourse with her, and the prosecutrix cried and told her that it was true, and after the term ended the prosecutrix came to her house and stated to her that R. A. Johnston and Will Hendrix and Opal Frogge had tried to get her to agree to lay their misconduct with her on Prof. Clowers. On cross-examination she stated she did not tell any person other than her husband what the prosecutrix told her.

As a witness in his own behalf the defendant testified that he was superintendent of the Beardon school for five years; that on or about the 10th day of March, 1917, Miss Pendleton, a teacher in the high school, reported to him that she had caught Bill Hendrix and Alva Strain having improper relations in the lodge room, and that day he called Bill Hendrix in the library and told him what Miss Pendle-ton had reported, and that he had better stop such conduct as that in the school; that about the 25th of March he went to ring the bell, and observed R. A. Johnston and Alva Strain passing into an anteroom of the lodge hall, and he walked over and saw Alva Strain sitting on the floor, and Johnston, with his back to him, seemed to be unbuttoning his pants; that she jumped up and hurriedly left; that he said to Johnston, “What does this mean? I am going to report you to your parents and take this matter up with the school board;” and he replied, “I am not in this;” and he asked him who was. Johnston said: “Bill Hendrix and Opal Frogge.” After this he called the boys into the library and told them, “If this conduct is not stopped, you will ruin the life of this girl;” that he did not write the note introduced in evidence, and it was not in his handwriting. He denied ever having any improper relations with the prose-cutrix.

The defense was made upon the theory that the defendant was the victim of a conspiracy entered into between the prosecutrix and these three schoolboys for the purpose of shielding the boys. While no objection was interposed by the state, we are inclined to think that the evidence given on the part of the defendant, tending to show that the prosecutrix was guilty of improper relations with other witnesses for the state, was incompetent and inadmissible. If the defendant had sexual intercourse with the prosecutrix at a time when she was under 16 years of age, the offense was complete, since under the law she was incapable of consenting to such an act. Had it. been established beyond a reasonable doubt, it would have been no defense to this charge of statutory rape against the defendant.

There can be no doubt that the verdict of the jury is amply supported, if the jury believed the evidence given on the part of the state, and we find no sufficient reason for believing that the evidence given on the part of the state, so far as the materia! facts are concerned, is not worthy of belief. 'It is apparent that justice has been done, and the judgment ought to be affirmed, unless the court in the course of the trial committed some error prejudicial to the substantial rights of the defendant.

The next error assigned is:

“The court admitted incompetent and irrélevant evidence, prejudicial to the rights of the defendant.”

The state, over the objection of the defendant, read in evidence the following letter or note:

“My dear darling sweet darling: It has been so long since I have written to you dear that I must take the time. Dear I’m all blue over school. It seems that everything is going wrong and I’m afraid that we are going to have to go a little slow here for a few days until things settle down. I can’t imagine why so many people are against the school .and me. Dear I can’t believe you will ever do or say a thing that will hurt me will you. Of course it would ruin us both. I have just placed absolute confidence in you and I still be-Heve in you. Dear I know you could tell me lots of things if you had a chance. I would stay here another year if the people wanted me and would give me their support, but they are forcing me out you know that, and it hearts me, for I’ve done the best I could. I could gladly go if I had not become so fondly attached to you. Even though I do go it will not be the end of our relation if you remain to me a friend and confidant. If you do not, I will ever be to you. I sure hate to leave you and you know it. Dear tell me once more that you will stick to me. I can’t help my attitude toward you for I have tried. Only you can stop me for I have fought that tendency like a demon. Answer to-day. Love and kisses.”

Before the note was read in evidence, Alma Rogers testified she was 18 years of age; was a pupil at the Bear don school during the years 1916 and 1917; that she picked this note up from the floor in the library of the school and read it and kept it until the sheriff of Okfuskee county called for it; that she was familiar with the defendant’s handwriting, and that the note was in his handwriting. The prosecutrix testified that it was one of the notes received by her from the defendant; that she knew his handwriting, and that this note was in his handwriting. Several other witnesses testified that they were familiar with the defendant’s handwriting, and that this note was in his handwriting. ■■ While this note was not addressed to angr one and was unsigned, we think that under the evidence offered it was clearly competent and was properly admitted in evidence. ,

The exceptions taken to certain instructions given- by the court are not argued in the brief. We have, however, examined the instructions and find no error in them. They were as favorable to the defendant as he could have demanded.

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

ARMSTRONG and MATSON, JJ., concur.


source: Caselaw Access Project

author: MATSON, J.

license: Public Domain

text:
    GEO. RUSSELL v. STATE.
    No. A-3025.
    Opinion Filed Jan. 17, 1920.
    Rehearing Denied Feb. 13, 1920.
    (186 Pac. 492.)
    (Syllabus.)
    1. TRIAL — Settlement of and Exceptions to Instructions — Tinte. The trial court is required to settle, and counsel are required to take exceptions to, instructions before the same are read to the jury.

      2. SAME — Right of Counsel to be Heard on Instructions. When requested1, it is error for the trial court to refuse to permit counsel for the defendant to have a reasonable opportunity to he heard upon the instructions to be given to the jury before the' same are read to the jury.
    3. SAME — Exception to Instruction After Verdict. The trial court is without power to make a rule of court which permits counsel on either side to save an exception to an instruction after the verdict of the jury has been returned in a criminal case. It is essential to the validity- of a court rule that it must not contravene any constitutional or statutory provision on the same subject.
    4. APPEAL AND ERROR — Exceptions to Instructions — Time. Where counsel rely for an exception to an instruction given by the trial court upon a rule of the -court which directly contravenes the plain provisions of a statute and the decisions of this court construing same (requiring the instructions to be settled before -being read' to the jury in a criminal cause), on appeal the instruction will be considered as if no objection had been made or exception whatever had been taken to it.

      5. SAME — Instructions not Excepted to — Review. Where no objection is taken to the instructions of the trial court, such instructions ■will not be examined by this court for the purpose of discovering other than fundamental error.
    6. TRIAL — Instruction on Failure of Defendant to Take Stand. The trial court gave the following instruction; “Gentlemen of the jury, you are instructed that a person charged with a crime shall, at his own request, but not otherwise, be a competent witness and his failure to make such request or to take the stand in his own behalf shall not create any presumption against him or be mentioned on the trial.” Held, that said instruction is not fundamentally erroneous. The holding of this court in McLaughlin v. State, 14 Okla. Or. 192, 169 Pac. 657, is distinguished and modified to conform to the holding herein.
    7. APPEAL AND ERROR — Witnesses—Scope of Cross-Examination of Character Witnesses. A witness to good character may be asked on cross-examination whether or not he has heard rumors of particular and specific charges of the commission of acts inconsistent with .the character he is called on to prove, not for the purpose of establishing the truth of siuieh facts or charges, but to test the credibility of the witness and to determine the weight to be given his evidence. The extent of such cross-examination is a matter resting in the sound discretion of the trial court, and a judgment of conviction will not be reversed because the trial court permitted such a cross-examination unless a clear abuse of such discretion is shown.
    8. TRIAL — Argument of Prosecutor not Reversible Error. The remarks indulged in 'by the county attorney were not such as to constitute fundamental error, and considering the fact that the defendant made no denial of the incriminating facts and circumstances proved against him, and the further fact that, at the request of defendant’s counsel, the court instructed the jury not to consider the only portion of the county attorney’s argument objected to, said alleged improper argument cannot be considered reversible error in this case.

      Appeal from District Court, Noble County; W. M. Bowles, Judge.

    •George Riussell was convicted- of statutory rape, and he appeals.
    Affirmed.
    On the 11th day of January, 1916, Blanche De Roin, a female under the age of 16 years, gave birth to a male child at the home of the niece of this defendant near War-rensburg, in the state of Missouri, to which place the defendant had taken the said Blanche De Roin in the month of September, 1915. After the birth of the child, he was adopted by a man named Smith, who lived in the neighborhood of Warrensburg.
    Prior to the happening of the foregoing events, the prosecutrix, Blanche De Roin, and the defendant, George Russell, her stepfather, had lived on the Bar L ranch in the northeastern part of Noble county, Okla. The defendant had married the mother of the prosecutrix in the year 1911, at which time Blanche was 10 or 11 years of age. Blanche testifies that shortly after the marriage of her mother with the defendant, the defendant directed his attentions to her, and- in a short time accomplished sexual intercourse with her, a practice that was carried on between them at frequent intervals, resulting in her pregnancy in the month of April, 1915, and the subsequent birth of her child in January, 1916.
    The particular act of sexual intercourse relied upon for a conviction, and which resulted in the pregnancy of the prosecutrix, is alleged to have occurred in the home of the defendant and in a room in the second story of the said home, where the prosecutrix and her younger half-sister, Bertha Cunningham, were sleeping. ■ The prosecutrix testified that the defendant, her stepfather, came to her bed early in the morning about the 11th of April, 1915, and accomplished an act of sexual intercourse with her. In this statement she is corroborated by her sister, Bertha Cunningham, who testified that the defendant came to Blanche’s room and got into bed with her, and that she saw him on top of Blanche and described the movements of their bodies, indicating clearly an act of sexual intercourse.
    In addition to the evidence relative to the act relied upon for a conviction, the prosecutrix testified to other acts of intercourse with the defendant, which she said were numerous, and as to several she was corroborated by other evidence and by a chain of circumstances clearly indicating an unlawful intimacy between the prosecutrix and the defendant. We deem it unnecessary to go into the minute details of these alleged acts of intimacy and intercourse further than to say that they tend unerringly to the conclusion that an unlawful relationship had existed between the defendant and the prosecuting witness for several years prior to the commission of the act relied upon for a conviction in this case.
    In the spring of 1916, immediately subsequent to the birth of her child in January of that year, Blanche De Roin returned from Missouri to the home of her stepfather, and lived there and under the same roof with the defendant until shortly before the institution of this prosecution against him.
    After Blanche’s return from Missouri, the fact leaked out that she had given birth to a child while at the home of the defendant’s niece in Warrensburg. This information resulted in an investigation by the authorities of Noble county, through juvenile proceedings instituted for the benefit of the children, Blanche De Roin and Bertha Cunningham, brought about at the instigation of Lennie Stockdale, an aunt of such children, who then resided in the town of Bliss, Okla. As a result of such investigation, Bertha Cunningham filed a complaint against her stepfather, charging him with the crime of statutory rape on her sister, Blanche. Blanche, however, at that time charged the crime to one Rolla McFarland, a young man living in the neighborhood. Later, however, and after the defendant had been arrested charged with the crime, Blanche filed a complaint against one Chris Anderson, a young man who had commenced to work for the defendant on April 9, 1915, charging him with the offense, and while the evidence shows that the said Chris Anderson had kept company with Blanche, there is no evidence in the record that he ever commenced to pay attentions to Blanche until several months after she became pregnant. Chris Anderson was still working for the defendant at the time he was arrested and charged with the crime, and it so happened that the filing of the complaint against Anderson was within the time of the sitting of a grand jury in Nbble county, and, as required by law, his case was submitted to the grand jury, resulting in. his discharge. *•
    Up until the time of the hearing before the grand jury Blanche had told several conflicting stories as to who was responsible for her pregnancy. On the trial of this case she says that such stories were told by her at the behest and instigation of the defendant, and on the witness stand she admitted that she had told these several conflicting stories, but explained that defendant had threatened her if she did not tell them, and on the trial she testified positively that no other person than the defendant had ever had sexual intercourse with her.
    The defendant did not take the witness stand in his own behalf. He offered evidence by several reputable witnesses to show that prior to the time of the institution of this prosecution his general reputation as an honest, upright, and law-abiding citizen was good. Otherwise his entire defense was directed to the purpose of discrediting the testimony of the prosecutrix and in an attempt to make the jury believe that this prosecution was the outgrowth of animosity upon the part of Lennie Stockdale. defendant’s sister-in-law, against the defendant, and that the purpose of the said Lennie Stockdale was to blackmail the defendant into the payment of a sum of money to avoid prosecution. To this end the defendant placed the said Lennie Stockdale upon the witness stand, and introduced in evidence two letters written by the said Lennie Stockdale under dates of May 17 and 23, 1916, to Mrs. Pearl Byrd, which said letters are as follows:
    “Bliss, Okl., May 17 — 16.
    “Mrs. Pearl Byrd — Kind Friend: I was glad to receive jour letter of the 16 and was glad to hear of Blanchie talked like she did about me. I care for her when she was a baby and care for her until Russell got hold of her and care for her after to but if Blanchie want to give me tales I dont care a Dam. I no of her baby she stayed with me one month she want me to get reaid of it for but Mrs. Byrd I did not so george thought he better get her away, the baby is george. that is tacking plane but I cannot help but I am sorrow you did not let me know of it when she was in bed with the baby, well Mrs. Byrd you will stay with this will you. I heard Blanchie give you some talk like she give you about me but for myself I have got friends after friends in Bliss and owt to more them Russell are Blanchie has got george has not lett Blanchie come to see us sent she come back. Grandma has been sick but little did Blanchie care, are George and Blanchie has been in Bliss times after times but she dont come down at all. george will not let Berthie came at all. I seen Berthie she told me he would let her come down and Berthie cride about it the poor girl well as I want to C. E. Smith I am glad you write and don’t let this be the last letter. I have cride all morning ever sent I got your letter it is trowble 0 trowble george russell does not like me I do not no whether you can reaid this or not I have cry so I will close, for this times from your unnone friend Len-nie Stockdale. write and let me no what you think of this P. S. place write and let me no what we are do abowt this I wont, to be good every one but they dont want to be good to me I have friends after friends so let me no by return mail I think you for writ me this letter I have find out what I want to no I now Blanchie was big when george took her away to get her hid.”
    “Bliss, Okla., May 23 — 16.
    “Mrs: Pearl Byard — Kind Friend: I have waten up till now and now answers yet'a what I wrot you some days ago so please ancwers and tell us more about it as I think I want to know as Blanchie is under age yet Blanchie was born March 26 1901 so she is just 16 years old last March I no becuse I was there. I am 27 years old myself so you can see how'old I was when Blanchie was bom. Russell say I do not no Blanchie eage he has toll people arownd thear that hes new me for 15 years long before he got in the family at all so writ and tell me more. I wrote C. C. Smith a bout the baby but got no ancures up till yet and say if George russell send you iny money dont take it becuses you can get more then $100.00 'if you will do as I want you to do so let me no by return mail as I wont to no all about it so dont wate no longer, you now let me help you and we can get more money than you think we can. Blanchie has toolk about you to me and toolk about me to you. We can sue for Slander money and get every sent. I would tell more if I would see you. I wich you would come down, russell not no you weare thear at all becuse every come to my place at all so let me no as I am going to do something about it. will you help me out, so I will close hopen to hear from you by return mail.
    “Yours truley, Lennie Stockdale Bliss..”
    As part of the cross-examination of the said Lennie Stockdale, and without objection on the part of the defendant, the letter written by Mrs. Byrd to Mrs. Stockdale was introduced in evidence, to which the foregoing letters are in reply:
    “Centerview, Mo., May 16, 1916.
    “Mrs. Lennie Stockdale, Bliss, Okl. — Dear Mrs. Stock-dale : I got to studying about you to-day and I thought I would write and let you know what tales Blanche told on you while she was here at my house.
    “She talked fearfully about you but I didn’t believe it. She made out to Grandma and I that you were the worst old Chip, in Bliss and if I were you I’d give her a talking to that she will remember and Grandma says that Chris Anderson, the fellow she goes with, is a nice young man, and I want you to tell him what sort of a girl she is. ■
    “Uncle Geo. brought her here to our house and promised tp give us $100.00 if we would smuggle her up and get a home for the baby. She stayed here six months as you know. The 11th of January her baby was born. It was the sweetest little boy with black hair and eyes; weighed 10 pounds. I took care of her and that baby and was up with it 7 or 8 times every night and I washed for her and' did everything and here they won’t pay us a cent. She wouldn’t look at it or take care of it at all, and I intend to inform people around there about it, for she is the whole cause of us not getting the money, and the way for you to get even with her is to let people around there know all about her.
    “She adopted the baby to some people who live out chree miles from here and if you should doubt it write to C. C. Smith, Holden, Mo. They are the people who got it. She went to Warrensburg and swore she was 20 years old and married a man by the name of Charlie Deroih, then he died with neumonía and she had to go to work to make a living and couldn’t keep the baby.
    “She also told some funny tales on herself and Uncle Geo which if they are true don’t sound very good. And I pity Aunt Mary for having such a thing as she is around her for she can’t cause her anything but trouble, and she told some of the terriblest tales on her own mother. Grandmother is well and would write if she knew I was writing, but she is upstairs asleep. So I will close for this time.
    “From a friend, Mrs. Pearl Byrd.”
    To set out in detail all the incriminating facts and circumstances would consume too much space, as the record contains about 400 typewritten pages. The foregoing statement, however, is sufficient for the purposes of this opinion.

      W. B. Clark, W. E. Rice, Henry S. Johnston, and H. A. Johnson, for plaintiff in error.

      S. P. Freeling, Atty. Gen., R. McMilkm, Asst. Atty. Gen., H. A. Smith, Co. Atty., and P. W. Cress, for the State.
   MATSON, J.

(after stating the facts as above). It is first contended that the trial court erjjed in giving to the jury the following instruction:

“Gentlemen of the jury, you are instructed that a person charged with a crime shall, at his own request, but not otherwise, be a competent witness, and his failure to make such request, or take the stand in. his own behalf, shall not create any presumption against him, nor be mentioned on the trial.”

While there is indorsed on the instruction:

“Excepted to by defendant. Exception allowed. W. M. Bowles, Judge ”

—it is proper in considering this assignment of error to ascertain the exact circumstances under which the giving of such instruction was excepted to. As part of the journal entry of trial we find the following:

“The court then took a recess and prepared the instructions to the jury in writing. Thereafter and at the reconvening of court the instructions so prepared were read to the jury. Thereupon counsel for the defendant, W. B. Clark, Esq., not in the hearing of counsel for the state nor the jury, asked the court if counsel for the defendant would have the benefit of the rule prevailing in the Twelfth judicial district of noting any exceptions upon the instruction's after the verdict of the jury. To this request the court assented, and thereafter, on the 13th day of January, 1917, one of the attorneys for the defendant, W. E. Rice, Esq., and after the verdict had been returned by the jury and filed with the clerk, noted in writing the exceptions of defendant to the instructions given by the court as the exceptions appear upon the,, original instructions given and filed in the case, and the exceptions so taken were at the time signed by the trial judge.
“That after the said instructions had been duly given to the jury, and the cause argued by counsel for the state and for the defendant, and the bailiff duly sworn according to law, and the jury placed in his lawful charge, the jury retired to deliberate of their verdict, and on, to wit, the 11th day of January, 1917, the said jury returned into court the following verdict.”

The foregoing excerpt from the record shows conclusively that no exception was taken to the giving of the above instruction until the 13th day of January, 1917, two days after the verdict had been returned. It shows, however, that after the court had read the instructions to the jury, counsel for the defendant, not in the hearing of counsel for the state nor the jury, asked the court if counsel for the defendant would have the benefit of the rule prevailing in that district of noting exceptions upon the instructions after the verdict of the jury had been returned, and the trial court assented to this procedure.

The fifth subdivision of section 5870, Revised Laws 1910, relative to Criminal Procedure, provides:

“When the evidence is concluded, the attorneys for the prosecution may submit to the court written instructions. . If the questions of law involved in the instructions are to be argued, the court shall direct the jury to withdraw during the argument, and after the argument, must settle the instructions, and may give or refuse any instructions asked, or may modify the same as he deems the law to be. Instructions refused shall be marked in writing by the judge; if modified, modification shall be shown in the instruction. When the instructions are thus settled, the jury, if sent out, shall be recalled and the court shall thereupon read the instructions to the jury.”

It is clear from said statute above quoted that in the trial of criminal cases the court is required to settle, and counsel are required to take exceptions to, instructions before the same are read to the jury.

On motion for a rehearing in the case of Boutcher v. State, 4 Okla. Cr. 585, 112 Pac. 762, in construing the foregoing subdivision of section 5870, this court held:

“When the evidence in a criminal case is concluded, the judge should give counsel for the state and counsel for the defendant an opportunity to submit any written instructions which they may desire to be given to the jury, and should also give counsel an opportunity to be heard, either in support of or in opposition to instructions to be given to the jury; and the court should require counsel for the defendant, upon such hearing, to point out what objections, if any, they have to the instructions given to the jury, and these objections should be incorporated in the record.”

In the body of the opinion it is said: •

“This section clearly contemplates that instructions to juries in criminal cases should be settled before they are read to the jury, and that, if counsel have any instructions whmh they desire to be given, or if they have any objections to any instructions proposed to be given by the court, it is the privilege and duty of counsel to point out such matters to the court before the instructions are read to the jury. Counsel' for the defense have the right to be heard in the trial court upon the law as well as upon the facts. This is fair to all parties concerned, and is necessary to the proper administration of justice. It gives the judge an opportunity to correct any errors.which he may have made, and it gives the county attorney an opportunity, if he thinks the charge of the court is erroneous, to join with the defendant in requesting that such error be corrected. If counsel desire to make objections to the instructions which the court proposes to give to the jury and request permission to do so, it would be error on the part of the trial court to refuse to give counsel such opportunity.”

It has also been held in the following cases to be error for the trial court to refuse to permit counsel for the defendant to have a reasonable opportunity to be heard upon the instructions to be given to the j ury before such instructions are read to the jury. Thompson v. State, 8 Okla. Cr. 50, 117 Pac. 216; Fowler v. State, 8 Okla. Cr. 130, 126 Pac. 831.

The statute requiring the instructions of the trial court in criminal causes to be settled before being read to the jury affords to the defendant an opportunity to request instructions, and to be heard fully .upon the law of the case relative to the instructions proposed to be given by the trial court. It affords protection as well to the defendant as to the court, and such statute may not be abrogated or contravened by any rule of the trial court. It is the plain duty of the trial judge to give counsel on both sides an ample opportunity to make proper objection and take proper exception to the instructions before they are read. It is the duty of counsel on both sides to follow the plain terms of the statute by seeing to it that whatever objections and'exceptions they care to make and take to the instructions are made and taken before the instructions are settled.

The trial court has no authority to permit counsel on either side to save an exception to an instruction after the verdict of the jury has been returned in a criminal case. The trial court is without power to make any rule to that effect, and it is evident in this case that no exception was taken to any of the court’s instructions in the manner required by law. It is essential to the validity of a court rule that it must not contravene any constitutional or statutory provision on the same subject. 7* Ruling Case Law, 1024, and cases cited.

In Patterson v. State, 4 Okla. Cr. 542, 113 Pac. 216, this court held:

“Exceptions to instructions should be taken at the time they are given to the jury, and the trial court has no power to allow exceptions to instructions which are not in fact taken at the time the instructions are given to the jury.!’

• See, also, Bashara v. State, 13 Okla. Or. 304, 164 Pac. 324.

It follows, therefore, that counsel for the defendant in this case, relying for their exception to the court’s instruction upon a rule of the .trial court which directly contravenes the plain provisions of the statute and the decisions of this court construing same (requiring the instructions to be settled before being read to the jury in a criminal cause), are in the same position as if no exceptions whatever had been taken to said instruction.

Further it has been held:

“Where the record shows no objection or exception to the instructions of the trial court, such instructions will not be examined by this court for the purpose of discovering other-than fundamental errors on appeal.” Ford v. State, 5 Okla. Cr. 241, 114 Pac. 274.

See also, Birdwell v. United States, 10 Okla. Cr. 159, 135 Pac. 445.

It follows, therefore, that if instruction No. 5, above quoted, is fundamentally erroneous, the giving of the same, under the circumstances disclosed by this record, would be reversible error; otherwise not. Is said instruction fundamentally erroneous? We think not.

Section 5881, Revised Laws 1910, provides as follows:

“In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of a crime, offense or misdemeanor before any court or committing magistrate in this state, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel, it shall be ground for a new trial.”

Section 6005, Revised Laws 1910, provides as follows:

“No judgment shall be set aside or a new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”

Under the latter provision, this court is without power to reverse a judgment of conviction because of the misdirection of the jury unless it is apparent from an examination of the entire record that there has been a miscarriage of justice or that the defendant has been deprived of some constitutional or statutory right.

A careful perusal of the transcript of the evidence in this case convinces the court that the trial did not result in a miscarriage of justice. Counsel for defendant do not contend that it did, but it is strenuously contended by them that it is mandatory to reverse the case because of the giving of such instruction. We are of opinion that this contention is not fully warranted by a fair and impartial interpretation of sections 5881 and 6005, supra.

The instruction given follows the language employed by the Legislature in section 5881. That section contains a caution against any reference to the fact that the defendant has failed to take the witness stand in his own behalf, either by the court or by counsel. It further provides, “If commented upon by counsel, it shall be ground for a new trial.” The Legislature cautioned against even the mention of the fact that the defendant had failed to take the witness stand, and made it ground for new trial when commented upon by counsel. A plain distinction is made between comment by counsel and a mention of the fact .'by others engaged in the trial. The Legislature, no doubt, apprehended that any comment made by the prosecuting officer would be unfavorable to the defendant, while, on the other hand, such an inference would not necessarily obtain with reference to the court. Of course, the trial judge might forget himself during the progress of the trial and make an unfavorable remark or comment concerning the defendant’s failure to testify,. which would be prejudicial to the defendant, and be sufficient ground to authorize a reversal of the judgment, and such mentioning of the defendant’s failure to testify would be within the purview of the statute and be sufficiently prejudicial to constitute ground for the granting of a new trial.

The jury was bound to accept the law as given in the court’s instructions, and therefore bound not to consider 'the fact that the defendant failed to take the witness stand as a presumption against him. The instruction given cannot be considered an adverse comment, and it could only be prejudicial upon the theory that the jury wholly disregarded the instruction and refused to be bound by it.

Even should the instruction be considered as a mention of the fact that the defendant did not take the witness stand in his own behalf, its giving would not be fundamental error unless commented upon by counsel, in which event the defendant would be entitled to a new trial. There is no contention made that counsel in any manner commented upon this instruction or upon the failure of the defendant to testify in this case. We reach the conclusion, therefore, that although the giving of said instruction be considered erroneous, no proper objection having been made or exception taken thereto in the manner required by law, and, the error complained of not being fundamental in character, it is without prejudice to the substantial rights of the defendant in this case. . • . ■

The cases of Sturgis v. State. 2 Okla. Cr. 362, 102 Pac. 57, Brown v. State, 3 Okla. Cr. 442, 106 Pac. 808, Nowlin v. State, 7 Okla. Cr. 27, 115 Pac. 625, 121 Pac. 791, Weinberger v. State, 8 Okla. Cr. 441, 128 Pac. 160, Teer v. State, 10 Okla. Cr. 651, 135 Pac. 1198, and Holmes v. State, 13 Okla. Cr. 113, 162 Pac. 446, cited in the brief of counsel for defendant, are all cases where the judgment of conviction was reversed by this court, among other reasons, primarily because the county attorney in argument to the jury commented upon the failure of the defendant to testify. In the case of McLaughlin v. State, 14 Okla. Cr. 192, 169 Pac. 657, in which the judgment of conviction was reversed because of the giving of an instruction similar to the one com-» plained of in this case, timely objection was made and exception taken to the instruction before the same was given, and the trial court’s attention in that case was directed specifically to the fact before the instruction was given that the defendant deemed it prejudicial to his rights for the court to give such an instruction. Such is not the record in this case, and the holding here is that, where no objection or exception is properly taken, the giving of such an instruction is not fundamental error and to such an extent the holding in the case of McLaughlin v. State is modified to conform to the holding herein.

It is also contended that the court erred in permitting prejudicial and grossly unfair misconduct on the part of the county attorney and his associates during the course of the trial. This assignment of error relates to the cross-examination of witnesses who were called by the defendant to establish his good reputation for honesty, uprightness, and as a law-abiding citizen.

On cross-examination counsel for the state asked several of these witnesses if they had not heard that the defendant had once killed a man; also if they had not heard that he had lived in open and notorious adultery; also if they had not heard that he was in the habit of carrying a gun — all of said facts occurring prior to the commencement of this prosecution. The record discloses that no objections were made to these questions at the time they were asked and answered, but subsequently counsel for defendant moved the court to strike the questions and answers, which motion was overruled.

The record shows that counsel for the state asked only such questions on the cross-examination of these reputation witnesses as were ruled to be proper by the trial court. No misconduct is disclosed by the state’s counsel such as has been heretofore condemned by this court in repeatedly asking on cross-examination questions which had previously been ruled to 'be improper by the trial court. The question here presented, therefore, is whether or not it was error for the trial court to overrule the motion to strike these questions and answers.

In Stouse et al. v. State, 6, Okla. Cr. 415, 119 Pac. 271, this court held:

“As the general reputation of any person is established by the opinions of witnesses as to the general estimation of his character, it is permissible upon cross-examination of such witness to show the sources of his information, and particular facts may be called to his attention, and he may be asked if he ever heard of them. This is permissible, not for the purpose of establishing the truth of such facts, but to test the credibility of the witness, and to ascertain what weight or value is to be given to his testimony.”

In Underhill on Criminal Evidence (2d Ed.) § 82, the rule is stated as follows:

“But a witness to good character may be asked on cross-examination to test his, credibility whether he has heard rumors of particular and specific charges of the commission of acts inconsistent with the character he is called on to prove, and generally as to the grounds of his evidence, not so much as to establish the truth of such facts or charges, as to test his credibility, and to determine the weight of his evidence. He may be asked if he has not heard some general report which contradicts the good reputation he has been called upon to prove. Thus he may be asked on cross-examination whether he had not heard of a difficulty during which the accused had assaulted a person with a knife.”

In McDonald v. State, 90 Ind. 320, a witness who had testified to the general good reputation for humanity and honesty of the defendant in the neighborhood where he resided was asked on cross-examination as to whether she had heard certain rumors which, had she admitted hearing them, would have materially weakened the force of her evidence in chief. The court said:

“The questions were relevant, not to prove that the appellant had been guilty of the offenses referred to in the question, but to elicit testimony which might affect the credibility of the witness’ evidence in chief as to the appellant’s reputation for humanity and honesty. One’s reputation consists in the general estimation in which he is held by his neighbors. This is to be ascertained from what "they generally say of him. When a witness testifies that such reputation is good with respect to some quality or disposition, it is competent to show by his cross-examination that he has heard reports at variance with the reputation he has given the party; and, if his admissions of hearing such, adverse rumors go to the extent of showing that they were general in the neighborhood where the party resided, the effect of the witness’ testimony in chief would be destroyed.”

In Basye v. State, 45 Neb. 261, 63 N. W. 811, it is said:

“It is firmly settled by the adjudications in this country that upon cross-examination of a witness who has testified to general reputation questions may be propounded for the purpose of eliciting the source of the witness’ information, and particular facts may be called to his attention, and he be asked whether he ever heard them. This is permissible, not for the purpose of establishing the truth of such facts, but to test the witness’ credibility, and to enable the jury to ascertain the weight to be given to his testimony. The extent of the cross-examination of a witness must be left to the discretion of the trial court.”

In People v. Pyckett, 99 Mich. 613, 58 N. W. 621, it is said:

“The defense called several witnesses as to the respondent’s prior good character. Upon cross-examination these witnesses were asked as to whether respondent had not been suspected of other crimes and misdemeanors. It is well settled, that when a witness is called to attack or defend character, he can only be asked on his examination in chief as to the .personal character of the person in question, and he will not be allowed to testify as to particular facts, either favorable or unfavorable to such person, but upon cross-examination he may then be asked, with a view to test the value of his testimony, as to particular facts. 1 Taylor on Evidence, § 352; 2 Starkie on Evidence, § 304; 3 Rice, Criminal Evidence, § 375; Reg. v. Wood, 5 Jur. 225; State v. Merriman, 34 S. Car. 16, 12 S. E. 619.”

See, also, Lowery v. State, 98 Ala. 45, 13 South. 498; Smith v. State, 103 Ala. 57, 15 South. 866; Sheers v. State, 147 Ind. 51, 46 N. E. 331; State v. Ogden, 39 Or. 195, 65 Pac. 449; State v. McDonald, 57 Kan. 537, 46 Pac. 966; People v. Mayes, 113 Cal. 618, 45 Pac. 860.

We ñnd no abuse of discretion on the part of the trial court in permitting the witnesses called by- the defendant to establish his general reputation as a law-abiding citizen to be cross-examined in the manner above indicated. The adjudicated cases are to the effect that such questions are competent on cross-examination to test the credibility of the witness, and for the purpose of determining the weight and value to be given to his testimony as given in chief. The contention that these questions were asked by the county attorney and the special counsel assisting him without foundation for their truthfulness seems to 'be lacking of merit in view of the fact that some of the witnesses at least had heard the particular facts and rumors inquired about.

Complaint is also made of certain alleged statements of the county attorney in the closing argument to the jury, but the record shows that the particular argument complained of was not requested to be taken in shorthand, and that, where objection was made to the argument, either the court instructed the jury not to consider, or else it was argument made in reply to previous statements made in argument by counsel for the defendant, to which no objection was interposed at the time.

The remarks indulged in by the county attorney were not such as to constitute fundamental error, and when construed in reference to the evidence in the record before us, considering the fact that the defendant made no denial of the incriminating facts and circumstances proved against him, and the further fact that at the request of the defendant the court instructed the jury not to consider the only part of the county attorney’s argument objected to, said alleged improper argument cannot be considered as constituting reversible error in this case.

We have here the conviction of a man who commenced, according to the state’s evidence, his illicit relations with his stepdaughter at the tender age of 11 years, and who continued said illicit intercourse, as testified to by the prose-cutrix, almost every day until it resulted in her pregnancy when she was yet but 15 years of age. The fact of prose-cutrix’s pregnancy becoming known to the defendant, he took her to the state of Missouri to the home of his niece, where the child was born, and, at the defendant’s request, adopted into the home of a stranger. Thereafter the defendant and the prosecutrix continued to live in the same home, and if the defendant is not guilty of this offense, it can at least be said of him that he made no effort whatever to discover and punish the guilty party. It was not •until the aunt of the prosecutrix had heard of the birth of this child and defendant’s conduct in connection with his stepdaughter that any effort was made to discover and punish the guilty party. It was then, as testified to by the prosecutrix, that at the behest and request of the defendant she at different times charged this offense to other parties, one of whom had lived with the defendant during the time that he had taken the prosecutrix to Missouri, and up until the very minute that such party was arrested and charged with the crime. If said party was guilty of the offense, the defendant certainly by very little effort on his part could have obtained such information before he took his stepdaughter to Missouri, and defendant would have at least either required such young man to have married his stepdaughter, or else, if not guilty himself, would have seen to it that just punishment was meted out to the aforesaid young man long before the defendant was charged with the offense himself.

The failure of the defendant to do the things that ordinarily would have been done under such circumstances by an innocent person, and his failure to deny any of the incriminating facts and circumstances proved against him, point unerringly to his guilt. The defendant had the benefit of able counsel. The punishment imposed was fixed at three years in the penitentiary, and the jury was extremely lenient with him.

Finding no error in the record such as would authorize the reversal of this'judgment and conviction, it is the opinion of the court that the same should be affirmed; and it is so ordered.

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


author: ARMSTRONG1, J.

text:
    C. E. BERRY v. STATE.
    No. A-2830
    Opinion Filed Feb. 16, 1920.
    (187 Pac. 248.)
    (Syllabus.)
    INDICTMENT AND INFORMATION — Duplicity—Information for Issuing Fraudulent Checks. The information in this case in one count charges that the defendant gave R. C. B. three fraudulent checks as follows, to wit, one for $42.76, one for $35.06, and one for $2.75, each of said checks bearing even date of issue; but it is not averred that all of said checks were given at one and the same time and were one transaction. Held, that the information was duplicitous, and the demurrer interposed to it on that ground should have been sustained.

      Appeal from District Court, Cleveland County; F. B. Swank, Judge.

    ■Clarence Earnest Berry was convicted of issuing fraudulent checks, and he appeals.
    Reversed and remanded.

      Warren K. Snyder, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG1, J.

The plaintiff in error, Clarence Earnest Berry, hereinafter called defendant, was by information charged with the issue of fraudulent and bogus checks, and convicted and sentenced to imprisonment in the penitentiary at McAlester for a term of one year and one day. To reverse the judgment he prosecutes this appeal.

The charging part of the information is as follows:

“That on the 20th day of May in Cleveland county, state of Oklahoma, J. M. Berry and Earnest Berry late of said county, and within the jurisdiction of this court, did unlawfully, maliciously, feloniously, fraudulently, designedly, with the intent to cheat and defraud one R. C. Berry out of his property by means of false pretenses and color and of false and fraudulent writings and tokens and false and fraudulent statements and representations knowingly made, obtain from the said R. C. Berry property consisting of poultry, butter and éggs of the value of- $80.57 giving him the said R. C. Berry in exchange for said property three false and bogus checks, which said checks are in words and figures as follows to wit: ‘Capitol Hill, Oklahoma 5 — 2—1914, pay R. €. Berry or order the sum of $42.76. J. M. Berry, Jr.,- & Co., by J. M. Berry, Manager, to the State Bank of Capitol Hill Okla.’ — and the other two checks in all respects the same as.the above-described check except they were for the sum of $35.06 and $2.75 respectively. And the said R. C. Berry believed the said checks to be good and valid checks and relying upon the same as such, though false and bogus and fraudulent, was induced to deliver and did then and there deliver to the said J. M. Berry, Jr., & Co., and Earnest Berry the property ■ so as aforesaid in exchange for said three checks, whereas in truth and in fact they the said J. M. Berry, Jr., & Co. did not then and. there have upon deposit in said Capitol Hill State Bank of Capitol Hill, Okla., funds to their credit with which to pay said checks and did not then and there have a credit with said bank sufficient to pay said checks, as they the said J. M. Berry, Jr., & Co. and Earnest Berry then and there well knew, and were not authorized to draw said checks upon said bank as they the said J. M. Berry, Jr., & Co., and Earnest Berry with the unlawful and felonious purpose and design to then and there cheat and defraud the said R. C. Berry out of his property.”

The defendant demurred to the information upon the grounds: (1) That said information does not state facts sufficient to charge a public offense; (2) that the said information and in one count attempts to charge more than? one offense, to wit, three separate and distinct offenses. The court overruled the demurrer, and the defendant excepted.

Thereupon the defendant filed a motion to require the state to elect upon which of the charges they would try the defendant, which said motion the court overruled, and the defendant excepted.

The uncontradicted evidence is: That J. M. Berry & Co. were for several months prior to May 20, 1914, engaged, in the city of Oklahoma, in buying chickens, eggs, and butter, and in the territory adjacent to the said city, and that on the 20th day of May, 1914, it having been made known to the defendant that a check previously given R. C. Berry 'by the defendant had been dishonored and returned, the defendant gave the said R. C. Berry a check for $42.06 on the State Bank of Capitol Hill in payment of said dishonored check, and bought in Norman, Okla., from one Forehand, who was a clerk for the said R. C. Berry, chickens, eggs, and butter, and gave in payment for same a check to R. C. Berry on the State Bank of Capitol Hill, for $35.06, and that the defendant then and there left the place of business of the said R. C. Berry and transacted other business with other merchants in said town, and later returned to the said place of business of the said R. O. Berry on the same day and purchased from the said R. C. Berry another case of eggs or some “friers,” for which he gave the said R. C. Berry another check on the State Bank of Capitol Hill for $2.75, and that there was nothing else that induced the said clerk of the said Berry and the said Berry to part with the property for which the said checks were given, except their reliance upon the genuineness of the said checks, and that, had they known that the said checks were not genuine, they would not have parted with the property for which the said checks were given, and that none of the said checks were signed by the defendant, but were signed by stencil “J. M. Berry, Jr., & Co.,” to which was added in writing, “By J. M. Berry, Jr., Mng.,” and that the defendant just before delivering said checks entered on said checks in pencil the amount of each of said checks and the name of the payee. That all of the said checks were deposited in a bank at Norman, Okla., and went through Kansas City, and on the 23d day of May, 1914, were presented to the State Bank of Capitol ■ Hill and protested for want of funds. That on the close of business on May 19, 1914, J. M. Berry, Jr., & Co. had on deposit with the said bank of Capital Hill $11.43, and on the 20th day of May, 1914, deposited $136.25, and had at the close of business that day $144.69. That on May' 21st they checked out $141.69, leaving a balance in their favor of $2.63, which amount, four months thereafter, was checked out. That their account in the said bank started on May 16, 1914, and practically ended May 21, 1914, and that previous to May 16, 1914, they had their account with the First State Bank of Oklahoma City and had stopped doing business with said bank on account of their funds having been garnished on an old judgment against J. M. Berry, Jr. That J. M. Berry, Jr., & Co. had been extensively engaged in buying chickens, eggs and butter, paying for the same with checks, all of which were paid except' the three given R. C. Berry. That ' checks given D. J. Pecket, dated May 19, 1914, for $10.53, to E. O. Whitenall, dated May 16, 1914, for $48,50, to McKinney Bros., dated May 20, 1914, for $29.75, to E. O. Whitenall, dated May 13, 1914, for $-, each of said checks being drawn on the State Bank of Capitol Hill, and a check to S. H. McCall drawn by J. M. Berry, Jr., on the First State Bank of Oklahoma, were not paid for want of funds and were introduced in evidence against the objection and exception of the defendant. That on the 22d day of May, 1914, the defendant was arrested and carried to Norman, and that thereafter the defendant left the state and was again arrested in Little Rock, Ark., and returned to this state and held for trial in this case. That J. M. Berry, after being arrested in this case, had disappeared, and his whereabouts had been unknown for nearly two years. That during the time J. M. Berry, Jr., & Co. did business with the State Bank.of Capitol Hill, their deposits amounted to $2,000 to $2,500. That the defendant had no transactions .with and was unknown to the said bank, and that the said bank did not know and had not been informed who was the company in the firm of J. M. Berry, Jr., & Co., and that the defendant previous to this case had never been charged with criminal offense.

We are of the opinion that the information, by failure to aver that all of said three checks were issued at one and the same time, charges more than one offense. Each transaction involving the checks, if it issued as averred in the information, constituted a distinct criminal offense. The information, therefore, is duplicitous, and the court committed reversible error in overruling the demurrer thereto.

“An indictment is bad for duplicity that charges two distinct offenses in one court — that is, uttering a check known to be forged, and the forging of the indorsement thereon, and a demurrer thereto should be sustained.” Wells v. Territory, 1 Okla. Cr. 469, 98 Pac. 483.

In the instant case, the information charges the issuance of three separate checks, each for a different amount, and does not aver that said checks were issued at one and the same time and constituted one transaction, while the undenied evidence shows that said three checks were not issued at the same time, and were issued for different transactions. If the information had alleged that the said three checks were issued at one and the same time, and as one transaction, the information would not be duplicitous. Tucker v. State, 8 Okla. Cr. 428, 128 Pac. 313.

The information being duplicitous, for the reason stated above, the judgment is reversed.

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


author: MATSON!, J.

text:
    MIKE BROSHEARS v. STATE.
    No. A-3257
    Opinion Filed Feb. 17, 1920.

    (187 Pac. 254.)
    (Syllabus.)
    1. MALICIOUS MISCHIEF — Evidence—Insufficiency. Record exam-mined, and held competent substantive evidence of guilt insufficient to sustain the conviction.
    2. TRIAL — 'Witnesses—Rule as to Prosecutor’s Impeachment of State’s Witness on Ground of Surprise — instructions. Where the trial court permits the prosecuting officer, upon the ground of surprise, to impeach a state’a witness by showing contradictory testimony given at the preliminary examination, the impeachment of such witness should 'be limited only to a contradiction of the material testimony given at the trial which is injurious to the state, and such matters should be called specifically to the attention of the witness. The trial court, under such circumstances, should positively instruct the jury that none of the contradictory statements may be considered as substantive evidence of guilt. Before impeaching evidence of this kind is permitted to be introduced, there should.be a clear showing of surprise on the part of the state.

      Appeal from Superior Court, Okmulgee County; R. E. Simpson, Judge.

    Mike Broshears was convicted of the crime of unlawful destruction of public property, and he appeals.
    Reversed and remanded, with instructions.

      E. M. Carter, for plaintiff in error.

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

The Attorney General-has filed in this ease the following brief and confession of error:

“On the 29th day of September, 1917, in the superior court of Okmulgee county, Mike Broshears, plaintiff in error herein, and hereinafter referred to as defendant, was convicted of the crime of injuring and destroying public improvements, and awarded a term of seven years in the state penitentiary. On the 14th day of February, 1918, he lodged in this court his appeal from said judgment of conviction.
“The defendant was tried and convicted of the crime of destroying with dynamite the water reservoir of the town of Dewar. The evidence against him was circumstantial, except that in his preliminary examination his 15 year old boy testified for the state, making out a complete case against him, and at the final trial, on this boy’s failure to testify favorably to the state, this evidence given by him at the preliminary examination was introduced in behalf of the prosecution. His entire testimony was introduced into the record after the witness had refused to testify to the material facts in favor of the prosecution, as disclosed by his former testimony.
“In asking to have this judgment reversed, counsel for defendant presents to this court the following specifications of error:
“ ‘First. That the court erred in refusing to sustain the demurrer to the information filed herein, to which action of the court the defendant at the time excepted.
“ ‘Second. That the court erred in refusing to grant the application of the defendant for a change of venue in this cause, to which action of the court in refusing to do so the defendant at the time excepted.
“ ‘Third. That the court erred in permitting the state, over the objection of the defendant, to introduce at the trial before the.jury incompetent, irrelevant, and immaterial evidence, to which action of the court the defendant at the time duly excepted.
❖ * * * * * * *
“ ‘That the court erred in refusing to give in his charge to the jury instruction No. 2 offered by the defendant, to which action of the court the defendant at the time duly excepted.
“ ‘Specification of Error 1. That the court erred in refusing to sustain the demurrer to information filed herein, to which action of the court the defendant at the time excepted.’
“There is no merit in this contention. The information contained the allegation that the tank was public property of the town of Dewar, and there is nothing in the specific allegation, to wit, ‘which was used as public property,’ necessarily changing the preceding allegation. In other words, after the allegation that a thing is public property, a subsequent allegation that it is being used as such is not contradictory of ownership.
“ ‘Specification of Error 2. That the court erred in refusing to grant the application of the defendant for a change of venue in this cause, to which action of the court in refusing to do so the defendant at the time excepted.’
“In view of the extremely light sentence which defendant was awarded, based upon the evidence submitted to them, no abuse of discretion is shown on the part of the trial judge in refusing on order transferring the case to another court in the same county.
“ ‘Specification of Error 3. That the court erred in permitting the state, over the objection of the defendant, to introduce at the trial before the jury incompetent, irrelevant, and immaterial evidence, to which action of the court the defendant at the time duly excepted.
* * ******
“ ‘That the court erred in refusing to give in his charge to the jury instruction No. 2 offered by the defendant, to which action of the court the defendant at the time duly excepted.’
“A portion of these assignments under these specifications of error not only possess merit, but as long as judicial trials partake the nature of law as we now know it, such errors as committed or rather permitted by the court in this trial must necessarily work a reversal in any criminal case. However, in the cross-examination of defendant’s witnesses, we do not think that the court committed error in permitting the county attorney to ask these witnesses if they were members of organizations known as W. C. U. and I. W. W. This testimony might have been harmful to the defendant and beneficial to the prosecution. We presume that it was brought out for that purpose, but because testimony is hurtful to the adverse party is no reason for its exclusion, provided that it is otherwise relevant.
“It would be a dangerous precedent to hold that the state or the defendant could not, by way of cross-examination, show the relationship — fraternal, social, and otherwise — of the witnesses to the defendant or the prosecution, in order to disclose any motive for a possible or probable coloring of their testimony. A jury should know these things concerning the state’s witnesses before they deprive an accused of his liberty or his life, and likewise they should be informed of the same objects of relationship and fidelity on the part of the defendant’s witnesses before they turn loose on society a monster and a vandal.
“Admission of Improper Testimony.
“The county attorney placed on the stand a witness, Claude Broshears, who had testified favorably to the state in the preliminary examination; his testimony making a clear case of guilt against the defendant. At the final Trial this witness did not testify to the incriminating things which he testified- in the preliminary examination; he testified to no incriminating act or circumstances against the defendant, but, on the other hand, he testified to nothing injurious to the state or the side which called him as a witness. In effect he was a neutral witness; he had testified to nothing requiring an impeachment; had he been impeached, the prosecution would have been exactly where it was before the impeachment. Notwithstanding this, the •county attorney introduced in evidence all these statements in its former testimony favorable to the prosecution.
“This undoubtedly was manifest error, and is without support in a single judicial precedent. The universal rule is stated by this court in Sturgis v. State, 2 Okla. Cr. 362, 102 Pac. 57, in the following language: ‘A party cannot impeach •his own witness by introducing in evidence conflicting statements made by him, unless he shall testify injuriously to the party placing him upon the stand. The mere fact that the witness does not testify as the party expected him to do will afford no ground for the introduction in evidence of previous contradictory statements made by such witness.’
“The rule laid down in Jones’ Commentaries on Evidence, volume 5, page 244, is to tfie same effect and is as follows: Tn a few jurisdictions it is held, even in the absence of statutes, that in the discretion of the court, if a party has been misled and surprised by the testimony of his witness, he may impeach him by proving his former contradictory statements. Under these statutes, the right of a party to impeach his own witness arises only when the witness testifies to some matter prejudicial to the party calling him.’
“This former testimony was not only introduced by way of questions and answers submitted to the witness, but the whole of it introduced in evidence and incorporated into the record in the same manner as if the witness had been dead, out of the state, or by due diligence could not be found. The admission of this testimony in part and as a whole is condemned by all the laws and rules of evidence and the decision of this court in numerous cases, holding in substance with Hawkins v. State, 3 Okla. Cr. 652, 108 Pac. 562, which reads as follows: ‘Before the testimony of á witness * * * may be proved, * * * it must first be proved that such former trial was had, that the witness was sworn and testified, that the defendant was present and had an opportunity for cross-examination, and that the witness has since died, become insane, left the state, that he is sick and unable to testify, or that his whereabouts cannot with due diligence be ascertained.’
“Had the former statements of the witness been admissible for the purpose of impeachment, the court’s instruction pertaining to it was only a partial statement of the law. The instruction (No. 7) reads: ‘The state has been permitted to' offer in evidence testimony of Claude Broshears, taken in the preliminary trial in this case before C. J. Shields, justice of the peace, and in this connection you are instructed that the sole purpose of the introduction of this testimony was to impeach the testimony of Claude Broshears in this trial, and cannot be considered by you for any other purpose, and if you believe from the testimony of the witness Claude Broshears, and the testimony given by him in said preliminary trial, that he has made such contradictory statements as to successfully impeach the witness Claude Broshears, then you are at 'liberty to disregard the whole or any portion of, his testimony.’
“Thiá instruction was incomplete. Cmmentators on evidence, addressing lawyers and practitioners, do not stop at saying that the former contradictory statements can be used for impeachment purposes only, but invariably state that it cannot be used as substantive evidence or to establish the truth of the matter contained in the contradictory statement. Jones on Evidence (The Blue Book) vol. 5, at page 254, gleans from the adjudicated cases the following rule: ‘Before closing this subject, attention should be called to the effect of impeaching testimony consisting of the contradictory or inconsistent statements of witnesses. It often happens' that such testimony is of vital importance in its effect upon the credit of the witness, and it is not infrequent that jurors fail to understand that such testimony is only received to affect the credibility of witnesses. In other words, the impeaching testimony does not establish or in any way tend to establish the truth of the matters contained in the contradictory statements.’
“The authors of Corpus Juris, vol. 16, page 855, state the rule in this language: ‘Where evidence is introduced or is admissible only to impeach either a witness for defendant, or defendant himself when he testifies, and is calculated to cause injury unless limited to such purposes, the court, particularly on request, should charge that this evidence shall be considered by the jury only on the question of the credibility of the witness or defendant, and not to show the guilt of defendant.’
“No case on this point is more unambiguous than is Sturgis v. State, supra, in which this court said: ‘When contradictory statements made by a witness are admissible in evidence for the purpose of impeaching him, they must be confined to contradictions of the testimony of the witness which are injurious to the party seeking to impeach him, and it is the duty of the court to clearly inform the jury that such statements cannot be considered as independent substantive evidence against or in favor of the defendant, and that the jury can only consider such contradictory statements for the purpose of affecting the credibility of the witness, if they decide that such statements do have this effect, and that it is unlawful for the jury to consider such statements for any other purpose.’
“The admission of this testimony was error of such a nature that no instruction could have cured it, but the defendant was entitled to an instruction expressly telling the jury that they could not use and consider the testimony of Claude Broshears, given at the former trial, as a basis for determining the guilt of the defendant, but that it should be confined to the impeachment of the witness in so far as his testimony was injurious to the state.
“Respectfully submitted,
“S. P. Freeling,
“Attorney General.
“W. C. Hall,
“Assistant Attorney General

A careful examination of the record has been made by the court, and the conclusion is reached that the defendant did not receive that fair and impartial trial which is accorded to him by the Constitution and statutes of this state. As stated by the Attorney General in his brief and confession of error, the evidence against this defendant, with the exception of the testimony given by his son in the preliminary examination, was wholly circumstantial. The evidence given by the son could only be considered for the purpose of his impeachment as a witness upon the trial, and not in any sense as substantive evidence of the guilt of the defendant. In considering, therefore, the sufficiency of the evidence to sustain the conviction in this case, the court must eliminate entirely from its consideration that portion of the evidence which was introduced by the state over the objection and exception of the defendant containing the testimony of the witness Claude Broshears, as given in the preliminary examination. With this evidence eliminated, the court reaches the conclusion that there is an entire insufficiency of evidence to sustain the conviction. The circumstances testified to by other witnesses, while of a very suspicious character, do not meet the well-established rule of law that, in order to be sufficient to sustain a conviction based solely on circumstantial evidence, the circumstances must be consistent with the guilt of the defendant and inconsistent with his innocence, and incapable of explanation on any other reasonable hypothesis than that of his guilt.

The circumstances testified to by the witnesses, other than the evidence of Claude Broshears given at the preliminary trial, might be said to be consistent with guilt; but they cannot be held to be inconsistent with any other reasonable hypothesis than that of guilt, unless they are linked together and considered in connection with the direct evidence of guilt testified to by the witness Claude Broshears on the preliminary hearing.

At the conclusion of the state’s evidence, counsel for the defendant interposed a motion for a directed verdict. The court refused to direct the jury to return a verdict of not guilty on the ground of insufficient evidence, to which action proper exception was taken at the time, and this is one of the grounds urged for a reversal of this judgment. The motion for a directed verdict of not guilty should have been sustained. '

It may be added, also, that the court concurs in the view expressed in the confesson of error filed in this case by the Attorney General, to the effect that it was preju-dicially erroneous for the trial court to permit the state to read in its entirety, the evidence given by Claude Bro-shears in the preliminary examination of this defendant. This the court permitted to be done on the ground that the prosecuting officers were surprised by the testimony of Claude Broshears given upon the trial. There is a very-meager showing of surprise; the only witness introduced being the assistant county attorney, who testified on that subject as follows:

“Q. Your name is L. A. Wallace? A. Yes, sir.
“By Mr. 'Carter: We object to the introduction of any testimony by this witness for the reason his name is not indorsed on the information; we had no knowledge or information he would be called as a witness.
“By Mr. Eaton: It is for the purpose of laying a foundation for the reading of Claude Broshears’ testimony taken at the preliminary.
“By the 'Court: Objection overruled.
“By Mr. Carter: We except.
“Q. You are assistant county attorney of this county? A. Yes, sir.
“Q. You know Claude Broshears? A. Yes, sir.
“Q. I will ask you, Mr. Wallace, if you were present in the clerk’s office, this week, the day this case was called for trial, when ■ the county attorney called Claude Bro-shears into the clerk’s office and had a talk with him? A. I was.
“By Mr. ‘Carter: We object to that as incompetent, irrelevant, and immaterial, because the witness Claude Bro-shears testified to the same fact.
“By the Court: It is purely a preliminary question, I imagine, Mr. Carter; objection overruled.
“By Mr. Carter: We except.
“Q. I will ask you if you heard the county attorney ask Claude Broshears if he was going to give the same testimony he gave at the preliminary hearing? A. Yes, sir.
“Q. You may state to the jury what his answer was.
“By Mr. Carter: Objected to as incompetent, irrelevant, and immaterial.
“By the Court: Objection overruled.
“By Mr. Carter: Exception.
“A. If I remember the conversation, it was like this: The witness yesterday morning was called into the clerk’s office — •
“Q. You don’t mean yesterday morning? A. I be- , lieve it was yesterday morning.
“Q. To refresh your memory, the case was called yesterday morning. A. Probably the day before; any way, just before we went into this trial, or soon before. Mr. Eaton asked him if he was going to tell it here just like he did before. He says, ‘Yes, I guess so; why?’ Mr. Eaton said, T just want to know if you were going to testify like you did before.’
“Q. Who else was there present at that time? A. Don Stormont was there; not sure whether Mr. Bailey was in the room or not.
“Q. I will ask you if you heard him make this statement : T would know what he testified to when he got on the witness stand.’
“By Mr. Carter: Objected to as incompetent, irrelevant, and immaterial.
“By the Court: Overruled.
“By Mr. Carter: Exception.
“A. I believe something like that was said; not sure. The way I remember the conversation, you asked him if he was going to testify like he did before; he said, ‘Yes; why?’
“Q. Did he say anything about not letting me know what he was going to swear until he got on the witness stand ? A. I believe he did say something about he would tell you when he got on the witness stand.”

An analysis of the assistant county attorney’s testimony as given above shows that there was a feeling of uneasiness on the part of the prosecution that the said Claude Broshears was likely going to change his testimony to some extent when called as a witness at the trial. When asked if he was going to testify to the same facts at the trial that he did at the preliminary, his answer was, “Yes, I guess so; why?”,and after being told that the county attorney wanted to know if he was going to testify like he did at the preliminary, his only further answer was that he would tell him (the county attorney) when he got on the witness stand.

Without any further investigation as to what the witness Claude Broshears’ testimony would be' at that time, the county attorney placed him upon the witness stand as a witness for the state. The evidence of Claude Broshears at the trial proving unsatisfactory to the county attorney, and to a certain extent contradictory to the evidence given by said witness at the preliminary, the county attorney on the above showing of surprise was permitted to read the entire evidence given by said witness at the preliminary examination.. The county attorney was not confined to those questions and answers which were contradictory of the evidence of the witness given at the trial, and which were prejudicial to the defendant, but was allowed to read the entire evidence of the witness, as heretofore stated. This action upon the part of the trial court we think was also clearly prejudicial to the substantial rights of the defendant. Despite the court's instruction that such evidence should only be considered,for the purpose of impeaching the witness Claude Broshears, in order to arrive at a verdict of guilty, the jury must have considered it as substantive evidence of guilt. Without such evidence of guilt, there was no sufficient competent evidence, to sustain the conviction. It is clear to this court, therefore, that the evidence of Claude Broshears, given at the preliminary examination, must have had a controlling influence with the jury in reaching a verdict of guilty in this case.

The crime committed here was a most diabolical one. It was a successful effort to destroy the source of the water supply to the incorporated town of Dewar. Its effect was to disorganize the orderly procedure of the government of said town, and to deprive its citizens of a sufficient supply of water, which was badly needed, especially at the time the crime was committed — in the middle of summer. Parties guilty of such an offense as this should meet the severest penalty of the law; but whatever prejudice the court may have against the crime itself should not influence its decision upon the question of affording one accused of such a crime a fair and impartial trial.

For the reasons stated, the judgment of conviction is reversed, and the cause remanded to the superior court of Okmulgee county, with instructions for further proceedings not inconsistent with this opinion.

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