author: DOYRE, J.

text:
    JIM CASE v. STATE.
    No. A-1738.
    Opinion Filed March 14, 1914.
    (139 Pac. 322.)
    1. LARCENY — Elements of Offense — Burden of Proof. The want of consent of the owner to the taking of his property" alleged to have been stolen is an essential ingredient of the crime of larceny, and, in order to support a conviction for the crime of larceny of domestic animals, the proof must show that said property was taken without the consent of the owner.
    2. SAME — Sufficiency of Evidence. In a prosecution for larceny of domestic animals, the evidence examined and held insufficient to warrant a verdict of guilty.

      Appeal from District Court, Pontotoc County; Tom. D. McKeown, Judge.

    Jim Case was convicted of grand larceny, and appeals.
    Reversed.

      Stone & Maxey, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYRE, J.

The plaintiff in error, Jim Case, and Aubrey McCall were jointly charged by information with the larceny of ten hogs, the property of one H. Hensler. A severance was demanded and granted. On his trial, Jim Case was found guilty and sentenced to be imprisoned for the term of one year in the penitentiary.

Of the various errors assigned, it is only necessary to consider the first: That the verdict of the jury is contrary to the evidence. After a careful examination of the record, we do not believe, that the evidence is sufficient to warrant the verdict and judgment rendered in the court below. The evidence shows that H. Hensler, a farmer living in the northeast part of Pontotoc county, had some hogs marked with a crop, split and underbit in each ear, running at large in the neighborhood; that the defendant hauled ten of these hogs to the town of Sasakwa and there sold them. PI. Hensler, the alleged owner of the hogs, testified that he did not think he gave Jim Case permission to s,ell any of his hogs. On cross-examination he stated, “I received the pay for those hogs,” and that he made no complaint against the defendants. Jim Hensler testified: That he was the son of PI. Plensler, and that he received from Jim Case the money for the hogs. That Case had complained about the hogs being in his field, and witness said to him: “Take the damn things and sell them.’ That’s just the words I said to him.” That he had authority to sell anything that was on his father’s place.

The want of consent of the owner to the taking of his property alleged to have been stolen is an essential ingredient of the crime of larceny of domestic animals, and, in order to support a conviction, the proof must show that the animals were taken without the consent of the owner. In this case the testimony of the witnesses for the state is to the effect that the hogs were taken with the consent of the owner, and the owner testifies that he received payment therefor. It follows that the evidence is insufficient to warrant a verdict of guilty.

For the reasons stated, we are of opinion that the evidence is insufficient to support the judgment. The judgment of conviction is therefore reversed, and the cause remanded.

ARMSTRONG, P. J., and FURMAN, J., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    TOM CASTLEBERRY v. STATE.
    No. A-1864.
    Opinion Filed March 10, 1914.
    (139 Pac. 132.)
    1. INDICTMENT AND INFORMATION — Essentials—Date of Offense — Rape. It is not required that an indictment or information should set forth with precision some particular day as the time when the offense was committed, except where time is a material ingredient of the offense; and an indictment, charging the crime of statutory rape to have been committed “on the-day of May of A. D. 1911,” is not subject to demurrer because the day of the month is left blank.
    2. SAME — Language of Statute — Description of Offense. The exact words of the statute defining á crime need not be used in the indictment or information charging it, but any words clearly and intelligibly setting forth the offense are sufficient.
    3. WITNESSES — Cross-Examination by State — Bias of Witness. The state has the right, on cross-examination, to show the nature of ■ the relations existing between the, witness and the defendant, so far as their relations are such as would create a bias that might reasonably be supposed to affect the credibility of the witness, and this rule cannot be changed by the fact that such evidence would probably prejudice the defendant in the minds of the jury.
    4. SAME — Impeachment—Proof of Disreputable Conduct — Admissibility. The privilege of degrading a witness by proof of disreputable conduct, not connected with the facts on trial, is one so liable to abuse that it should be closely guarded, and allowed only on the exercise of judicial discretion of the trial court, and then only to affect the credibility of the witness.
    5'. RAPE — Defense—Previous Defilement. In a prosecution for rape under the statute defining rape as an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, “where the female is over the age of sixteen years and under the age of eighteen and of previous chaste and virtuous character,” alleged to have been committed “on the-day of May, 1911,” the testimony of the prosecutrix tended to prove several acts constituting the crime charged; the first having occurred in March, and the last in May, 1911. The defendant did not request the court to require the state to elect on which act it would rely, and no election was made. Held, that the defendant, being the author of the child’s defilement, is precluded from taking advantage of his previous wrong-doing to avoid the application of the statute on the theory that at the time alleged in the indictment, or at any time after the first aet of sexual intercourse with the defendant, the child was not chaste, and therefore the defendant could only be convicted for the first act, which the evidence tended to prove.

      6. SAME — “Previous Chaste and Virtuous Character” — Previous Chaste Character. The phrase ‘' previous chaste and virtuous character, ” as used in the statute defining rape (Bev. Laws 1910, sec. 2414), means actual personal virtue. The allegation in an indictment that prosecutrix was then and there a female of “previous chaste character” meant the same, and was an allegation that she had never had sexual intercourse with any man. In other words, that she yet retained her virginity.
    7. WITNESSES — Privilege from Giving Incriminating Testimony-Eight to Claim. In a prosecution for statutory rape, the privilege of a witness to refuse to give testimony which would tend to show her guilty of violation of Bev. Laws 1910, see. 2463, prohibiting indecent exposure, was personal to the witness, and should not be taken advantage of by accused.
    8. EAPE — Statutory Eape — Sufficiency of Evidence. Evidence in a prosecution for statutory rape held to sustain a conviction.

      Appeal from District Court, Tillman County; Prank Mathews, Judge.

    Tom Castleberry, Jr., was convicted of statutory rape, and appeals.
    Affirmed.

      J. P. Red and W. P. Hudson, for plaintiff in error.

      Chas. W.est, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error was tried and convicted in the district court of Tillman county upon an indictment returned by the grand jury ón the 24th day of January, 1912. The indictment charged “that on the- day of May of A. D. 1911, at and within said county, and within the jurisdiction of said court, one Tom Castleberry, Jr., then and there being, did then and there unlawfully, willfully, and feloniously commit the crime of rape upon the person and body of one Willie Mathews, by then and there having carnal sexual intercourse with her, the said Willie Mathews, who was then and there a female of previous chaste character, and under the age of eighteen years, and the said Willie Mathews then and there not being the wife of the said defendant, Tom Castleberry, Jr., contrary to,” etc. On the Í4th day of June, 1912, in accordance with the verdict of the jury, the court sentenced the defendant to imprisonment in the penitentiary for the term of five years. To reverse the judgment an appeal was taken by filing in this court, on November 29, 1912, a petition in error with case-made.

The first assignment of error is in the overruling of the demurrer to the indictment. It is contended that the indictment is fatally defective in not alleging the exact day of the month of May that the offense was committed.

Our Code provides (section 5742, Rev. Taws 1910) :

“The precise time at which the offense was committed need not be stated in the indictment or information; but it may be alleged to have been committed at any time before the finding thereof, except where the time is a material ingredient in the offense.”

By section 5746, Rev. Laws 1910, it is also provided:

“The indictment or information is sufficient if it can be understood therefrom: * * * Fifth: That the offense was committed at some time prior to the time of filing the indictment or information. Sixth: That -the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended. Seventh: That the act or omission charged as the offense, is stated with such a degree of certainty, as to enable the court to pronounce judgment upon a conviction according to the right of the case.”

At the common law an allegation of the exact date of the offense was indispensable and authorities may be found holding that it is necessary to allege a particular date on which the offense was committed. However, under the foregoing provisions of our Code, it is unnecessary to allege the exact date of the offense, except in cases where time is a material ingredient of the offense charged. It is sufficient if it shall clearly appear that the offense charged was committed at some time prior to the finding of the indictment, and within the statute of limitations. However, as a- matter, of good pleading, even where time is not a material ingredient, it is better that an indictment or information should allege a particular day as the time when the offense was committed. As to time, all that is necessarjr to be proved in any case like this is that the offense charged was committed while the female was under the age of eighteen years. Otherwise timé is not a material ingredient of the.offense. Therefore the contention is not well taken.

It is also claimed that the indictment is defective in that it is not alleged, in the words of the statute, that Willie Mathews was a female of “previous chaste and virtuous character.” The indictment alleges that she was a female of “previous chaste character.” We think that the language used is sufficient. It is well settled that the exact words of a statute defining a crime need not be used in an indictment or information charging it, but any words clearly and intelligibly setting forth the offense are sufficient.

Our Code provides (section 5747, Rev. Taws 1910):

“No indictment or information is insufficient, or can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to' the prejudice of the substantial rights of the defendant upon the merits.”

The phrase “previous chaste and virtuous character,” as used in the statute defining rape (section 2414, Rev. Laws 1910), means actual personal virtue. The allegation in the information that she was then and there a female of “previous chaste character” means the same, and is an allegation that the prosecutrix had never had sexual intercourse with any man. In other words that she yet retained her virginity. Our conclusion is that the demurrer was properly overruled.

The next assignment is that the court erred in admitting the testimony of Ruth Brady, upon her cross-examination, and in permitting the state to introduce in evidence a post-card photograph of Ruth Brady and the defendant upon the cross-examination of said witness. Ruth, as a witness for the defendant, had testified that in February, 1912, she went to her home and had a conversation with the prosecutrix, and asked her who she thought her baby boy favored, and the prosecutrix said “that she didn’t know, but that she had a pretty good idea”; that she then asked her who was the father of her child, and that she said “she didn’t know who the father of her child was.” On cross-examination she stated that the defendant was her sweetheart. The state produced a photograph taken by Jack Kendrick, another witness for the defendant, and extended it to the witness; her further examination, taken from the transcript, being as follows:

“Q. Whose picture is that? A. It’s ours; Tom and me. Q. Yourself and Tom? A. Yes; don’t it look like us? Q. This shows Tom and you, and Tom has got his hands upon your leg, and your dress pulled up, and his hands up there on your knee, hasn’t he? (Objection that the same is not proper cross-examination. Overruled and exception allowed.) Q. He has got his hands up there on your legs? A. Yes, sir. Q. You was out riding with Tom and permitted him to do you that way? A. Yes, sir. Q. That is a true picture of you and Tom? A. Yes, sir.”

She further stated that the picture was taken by Jack Kendrick about three months before; that she left Hobart, her home, with the defendant, and went to see the prosecutrix at Davidson, because she just wanted to see if the baby favored Tom. The argument is made that:

“A person having their picture taken in possibly an immodest way, as this picture represents, could have nothing to do with the truth .or untruthfulness of what such person may testify to upon the witness stand upo.n a matter disconnected with such act. And the admission of such testimony, and the exhibit of said indecent picture as evidence, as was allowed in this case, answered no fairly useful purpose on the trial. It only tended to embarrass the witness by exposing an act done by her in the infirmity of human nature, amid the temptations that beset life, and the obvious purpose and the undoubted effect of such course of examination in this case were to degrade and injure the witness in the estimation of the jury to injuriously affect their verdict against the defendant.”

The evidence, if inadmissible, was, beyond doubt, highly prejudicial to the defendant. On the other hand, the evidence of the witness Ruth Brady, if believed, was very damaging to the state.

It is well settled that in a criminal case a witness on cross-examination may be questioned as to his relations and feelings of friendliness or hostility towards the defendant.

• In Underhill on Crim. Ev., sec. 221, it is said:

“Questions put to the witness for the purpose of ascertaining his relations, business, social, or otherwise, with the accused and his state of mind, whether hostile or friendly towards him, are unobjectionable.”

In Holly v. Commonwealth (Ky.) 36 S. W. 532, a woman was introduced as a witness for the defendant. It was held that it was not error, for the purpose of showing her interest and probable bias, to allow her to testify on cross-examination that she and the defendant had been living together without being married.

In Smith v. State, 143 Ind. 685, 42 N. E. 913, it was held that the state, on the cross-examination of a female who was a witness for the accused, could show her relations with him, as showing bias in his favor on the part of the witness.

In Martin v. State, 125 Ala. 64, 28 South. 92, it was held that a witness for the defendant could be asked on cross-examination if she did not sustain illicit relations with the defendant.

In Sexton v. State, 48 Tex. Cr. R. 497, 88 S. W. 348, a witness was permitted to- be asked on cross-examination if she had not lived in adultery with defendant for five or six years. She answered in the affirmative. This was held to be proper cross-examination. The court says:

“It was relevant for the purpose of showing her bias and friendship and close relationship -to the appellant, and her interest in testifying in his behalf, and,, consequently, as touching her credibility.”

In State v. McGahey, 3 N. D. 293, 55 N. W. 753, a witness for the defendant, over his objection, was permitted to be cross-examined at length as to her relations to and criminal intercourse with the defendant. The court says:

“The able counsel does not contend that it was improper to ask the witness on cross-examination as to her criminal relations with men generally as affecting her credit, but urges that such object could be equally well attained without specifically naming McGahey, and that the necessary effect of so naming him must have been to prejudice the jury against him. Admitting counsel’s conclusion, we are still of opinion that the line of cross-examination was proper. The state has the right to show the relations existing between the witness and the party at whose instance, and presumably in whose interest, she was testifying. It had the right to expose to the jury every motive and desire of the witness that might naturally and reasonably be supposed to produce that bias that would affect the character of her testimony.”

The doctrine that a witness may be cross-examined as to matters going to' credibility may well be regarded as an exception to the rule that cross-examination is to be confined to matters touched on in the examination in chief, and the limits within which either party may cross-examine upon matters not strictly relevant, but which affect the credibility of the witness, is largely within the discretion of the trial court, but the privilege of degrading a witness by proof of disreputable conduct, not connected with the facts on trial, is one so liable to abuse that it should be closely guarded and allowed only upon the exercise of sound judicial discretion, and then only to affect the credibility of the witness.

The witness, Ruth Brady, testified on her cross-examination that she was the sweetheart of the defendant. Here we have a very powerful motive for testimony in his behalf.. She identified and admitted the photograph which shows that witness, in the presence of a third person, permitted the defendant to take indecent liberties with her person. We think the entire evidence upon the cross-examination, including the photograph, was properly admitted, as showing the nature of the relations existing between the witness and the defendant, and that their relations were such as would create a'bias on the part of the witness that might reasonably be supposed to affect her credibility, and the fact that such evidence would probably prejudice the defendant in the minds of the jury did not affect its admissibility.

It is also contended that the evidence as to the photograph was inadmissible, because it compelled said witness Ruth Brady to give evidence which tended to incriminate her, in that it tended to show that witness was guilty of a violation of the criminal laws of the state prohibiting indecent exposure. Section 2463, Rev. Laws 1910. It is elementary law, supported by all the authorities, that the privilege to refuse to answer incriminating questions is one personal to the witness, and an objection to a question for this reason should come from the witness, not the party. In Underhill on Crim. Ev., par. 247, p. 449, the rule is thus stated:

“The right to refuse to answer incriminating questions is personal to the witness. To preserve his right he must himself object. If he wishes to answer, he may do so, and neither the prosecution nor the accused has a right to object.”

There is no merit in the contention. The privilege was that of the witness, and it is not a matter of which the defendant can complain. ^

Finally, undei- several assignments it is contended that the verdict is contrary to the evidence. The prosecutrix testified: That she was born on the 30th day of August, 1894, and had lived with her parents at Davidson, in Tillman county, for about three years, and the defendant had gone with her off and on for about three years; that during the months of March, April, and May, 1911, he was with her about three times a week. That he promised to marry her, and she permitted him to have sexual intercourse with her, the first time in March, 1911, while they were going to her home from church. That this conduct was repeated several times, always on the way from church to her home. The last act occurred May 25, 1911. As a result she became pregnant. That she informed the defendant, and he said; “I will fix that up all right in a few days,” and that they would go to Frederick, the county seat‘and get married. That soon thereafter he left the state. That her child was born January 28, 1912. That she never had intercourse with any man other than the defendant; that she consented to have intercourse with the defendant because he promised h> marry her, and she loved him; that she was unmarried, and not the wife of the defendant. There are in evidence many facts and circumstances of a corroborative character which materially strengthen the evidence of the prosecutrix as to the principal fact about which she testifies. We have given the evidence careful consideration, and our conclusion is that the evidence is ample to sustain the verdict, and that the controversy of fact' was peculiarly one for the jury to determine.

It is contended, however, that because the prosecutrix testified that the defendant had sexual relations with her prior to “the --- day of May, 1911, the time alleged in the indictment; that she was not on the- day of May, 1911, or at any time after the first act of sexual intercourse with the defendant, a female of previous chaste and virtuous character; therefore he cannot be convicted of any subsequent act, and counsel cite the case of State v. Dacke, 59 Wash. 238, 109 Pac. 1050, 30 L. R. A. (N. S.) 173. This contention presents the question to this court for the first time, and it becomes necessary therefore to determine whether a man may gratify his lust and passion by persuading a chaste child to permit him to have sexual intercourse with her, and afterwards repeat the act, and then, in a prosecution for statutory rape, to take advantage of his previous defilement of the child to avoid the application of the statute. The testimony of the prosecutrix tended to prove several acts constituting the crime charged. The defendant did not move or request the court to require the state to elect on which act it would rely. The court properly instructed the jury, in effect, that if they found from the evidence beyond a reasonable doubt that the defendant, within the county and state, on the --- day of May, 1911, or at any time within three years prior to the finding of the indictment, did have sexual intercourse with the prosecutrix, and that she was at the time under eighteen years of age and of previous chaste and virtuous character, then they should find the defendant guilty of rape in the second degree. Our Code provides that an indictment or information must charge but one offense. Rev. Laws 1910, sec. 5741.

It is a general rule that when the law permits but one offense to be set out in the accusation, the state will be compelled to choose the transactions on which it will ask a verdict. 1 Bish. New Crim. Proc., par. 459.

In this class of cases, however, we think the question of election is properly a matter within the judicial discretion of the trial court. We think the contention is not well taken. Such is not the law, and such a doctrine is without support in the principles of criminal jurisprudence.

In our opinion, the defendant, being the author of the child's defilement, is precluded from taking advantage of his previous wrongdoing to avoid the application of the statute.

In the case of State v. Sargent, 62 Wash. 692, 114 Pac. 868, 35 L. R. A. (N. S.) 173, Crow, J., delivering the opinion of the court and discussing the question here presented, said:

“If appellant’s contention is to be sustained, to the effect that he cannot be convicted for any subsequent act committed within the same calendar month, it would then be impossible to convict any defendant of the commission of this crime upon the person of a female child over fifteen and less than eighteen years of age, unless the state relied upon the first act only, and was able to produce other evidence to corroborate the testimony of the prosecuting witness as to that particular act. Such a holding would practically remove that protection with which the statute seeks to clothe female children of chaste character between fifteen and eighteen years of age. We are not prepared to thus extend the doctrine of the Dacke case, and in effect annul the statute itself.”

The object of the statute is to protect the chastity and virtue of the girlhood of our state from the evil machinations of vicious-minded persons of depraved nature and morals. The records of this court disclose that in this class of cases the defilement of a child is usually accompanied by a succession of illicit acts, and the punishment for this infamous crime against society and the state ought not to' be made to hinge upon a mere technical application of the rules of pleading, and evidence, when the only question is which one of such illicit acts was the verdict of guilty based on.

Having considered the questions presented, our conclusion is that the defendant had a fair trial and was properly convicted.

The judgment of conyiction is therefore affirmed.

ARMSTRONG, P. J., and FURMAN, J, concur.


author: ARMSTRONG, P. J.

text:
    E. B. PRESTON v. STATE.
    No. A-1762.
    Opinion Filed March 21, 1914.
    (139 Pac. 538.)
    1. HOMICIDE — Assault with Intent to Kill — Evidence. In a prosecution for assault with intent to kill, where there is conflicting evidence as to whether or not the person assaulted was armed at the time the assault was made, it is not error to permit the state to show 'that within a short time after the assault a search was made by the persons who cared for the victim, and that no weapons were found on his person or about his clothing.
    2. TRIAL — Refusal of Instructions Covered. Where the charge of the court, considered as a whole, fully and fairly presents the law of the case, it is not error to refuse to give an instruction when the same has, in substance, already been given.
    3. NEW TRIAL — Newly Discovered Evidence. A new trial will not be granted upon the ground of newly discovered evidence, where such evidence is cumulative, or for the purpose of impeachment, or only tends to affect the credibility of a" witness.

      Appeal from District Court, Osage County; R. H. Hudson, Judge.

    E. B. Preston was convicted of assault with intent to kill, and appeals.
    Affirmed.

      R. B. Boone, Ottamar Hamele, and Leahy & MacDonald, for plaintiff in error.

      Chas. West, Atty. Gen., Smith C. Matson, Asst, Atty. Gen., and H. A. King, Spl. Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

Upon an information, filed by the county attorney in the district court of Osage county on the 27th day of February, 1911, charging that E. B. Preston and Maud Preston did, on the 22d day of December, 1910, commit the offense of assault with intent to kill one Ed. Ireland, a trial was had, and Maud Preston was acquitted, and E. B. Preston was found guilty as charged, and his punishment assessed at one year in the penitentiary.

This appeal is prosecuted from the judgment and sentence rendered in accordance with the verdict of the jury on the 29th day of December, 1911.

The state’s evidence shows: That plaintiff in error, Preston, and prosecuting witness, Ireland, lived in the same neighborhood, about three-quarters of a mile' apart. That on December 22, 1910, Preston and his wife were on their way to Ralston, in an open buggy, when prosecuting witness, about four miles from his home on his way to Ralston, riding horseback, overtook them, and, when he started to ride on by them, Preston told him to stop, and said to him, “Did you tell Jack Cochran that I stole his horse collar?” and prosecuting witness said, “Did Jack Cochran tell you that?” and started to ride by, and Preston pulled an automatic pistol from his overcoat pocket. Whereupon prosecuting witness said he was unarmed, but that, if he would lay his gun off, he would fight him. Thereupon Preston began to shoot; one shot struck the horse in the neck, one struck the horn of the saddle, and four shots struck prosecuting witness, one his arm, one his leg, one his collar bone, and one through his body, all entering from the back. Prosecuting witness rode on about 120 yards, and, coming to a gate opening into a pasture, he turned his horse in there, and Preston shot at him again after he entered the field. He rode on and met some neighbors, who helped him off his horse and sent for a doctor.

The defendant testified in his own behalf that prosecuting witness drew a pistol, and that they both shot about the same time; that the prosecuting witness shot at him again from the pasture; that he shot prosecuting witness in self-defense.

Codefendant, Maud Preston, wife of defendant, testified that the prosecuting witness drew a gun, and she dropped down in the buggy and covered her face with her hands, and did not see the shooting.

In rebuttal prosecuting witness denied that he had a gun or pistol, and his wife testified that he was not the owner of a pistol.

The first alleged error complained of is that the court e.rred in admitting the testimony of Chris Wilcox and Estes Rhodes. These witnesses testified that they helped prosecuting witness off of his horse and, carried him to Mr. Wilcox’s house, and there helped to undress him, and that he did not have a gun, pistol, or weapon of any kind about his person or clothing.

Defendant and his wife each testified that the prosecuting witness had a pistol. On a trial for assault with intent to kill, where there is conflicting evidence as to whether the person assaulted was armed when the assault was committed, it is not error to permit the state to show that within a short time after the assault a search was made by the persons who- cared for the victim, and that no arms of any kind were found upon his person or about his clothing. Rogers v. State, 8 Okla. Cr. 226, 127 Pac. 365.

The contention that this testimony was incompetent and prejudicial is untenable.

Complaint is also made that the court erred in failing to instruct the jury that defendant would have a right to pursue his assailant so long as it reasonably appeared necessary for him to do so to protect himself from receiving great bodily injury or death at the hands of his assailant.

Without further discussion, it is sufficient to say that the instructions of the court fully, fairly, and correctly state the law of the case.

Finally, it is contended that the court erred in refusing to grant a new trial on the ground of newly discovered evidence. The newly discovered evidence set up in the affidavits for a new trial shows that the evidence claimed to be newly discovered is only cumulative and impeaching, and does not make such a showing as to entitle the defendant to a new trial. Ordinarily courts will not grant new trials upon the ground of newly discovered evidence, where it appears that such newly discovered evidence is merely cumulative, or only tends to affect the credibility of a witness.

Finding no error in the record prejudicial to the substantial rights of the defendant, we reach the conclusion that the judgment ought to be affirmed, which is accordingly so ordered.

DOYLE and FURMAN, JJ„ concur.


text:
    HENRY AMEAHTUBBEE v. STATE.

      No. A-1967.
    Opinion Filed March 21, 1914.
    (139 Pac. 527.)
    ^APPEAL — Brief—Necessity—Scope of Review, (a) It is the duty of counsel, when an appeal is taken to this court, to brief any assignment of error relied upon.
    (b) When an appeal is taken and no briefs filed, and no appearance made for oral argument, this court will examine the transcript only for the purpose of determining whether or not the accused was deprived of any fundamental right, and, if not, the judgment will be affirmed.

      Appeal from District Court, Carter County; S. H. Russell, Judge.

    Henry Ameahtubbee was convicted of rape, and appeals.
    Affirmed.

      R. P. Turner, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

The plaintiff in error, Henry Ameah-tubbee, was tried and convicted at the May, 1912, term of the district court of Carter county on a charge of statutory rape; the charge being based upon the allegation that he had had carnal knowledge of Sweeny Postoak, an unmarried female under the age of sixteen years.

The injured party, Sweeny Ppstoak, testified to numerous acts of intercourse had- with the accused in the year 1910; that in the year 1911 she gave birth to a child; that the accused was the father of the child; that he was her cousin, and was at her home frequently; that no other person had ever had sexual intercourse with her; that she was not married to the accused, but that he had promised to marry her, and thereby induced her to submit to the acts of intercourse in question. Malissa John, the mother of the prosecuting witness, testified that the accused was her nephew, and that she had raised him; that he was at her house a great deal of the time and associated with her daughter as a brother; that her daughter gave birth to a child; that she did not know who the father of the child was, other than what had been told her.

The accused testified for himself, denying that he had ever had intercourse with the prosecuting witness. He denied that he was ever at her home; that he had never seen her but once, and that on this occasion she hunted him up and told him another man was the father of her child; in fact he was so prolific in his unreasonable statements that the jury could not reasonably have been expected to find any other verdict than that returned.

The record has been carefully examined, and, so far as we are able to determine, the cause was fairly tried and properly submitted to the jury. There was no brief filed on behalf of the plaintiff in error, and ho appearance made for oral argument. In the absence of fundamental error, therefore, the judgment will be affirmed. All the'parties in interest are full-blood Choctaws. On account of this fact we have carefully read the record, and find no prejudicial error disclosed thereby. There is nothing disclosed by the petition in error worthy of discussion. The issues involved were clear-cut issues of fact, and there is no doubt but that they were properly determined by the jury.

The judgment therefore is affirmed.

DOYLE, J., concurs. FURMAN, J., absent and not participating.


text:
    JOE WILSON v. STATE.
    No. A-1655.
    Opinion Filed March 21, 1914.
    (139 Pac. 528.)
    1. APPEAL — Frivolous Assignments. An appeal should not be taken from a judgment of conviction when there is no merit in any assignment brought and clearly no prejudicial error in the record of the trial.

      2. HOMICIDE — Appeal—Trivial Irregularities. A person who is tried for murder and convicted of manslaughter in the second degree on facts which disclose no element of manslaughter in the second degree, and which would have warranted a conviction of murder, is in no attitude to complain in this court of trivial irregularities.
    3. COURTS — Opinion—Frivolous Appeal. An extended opinion should not be written by this court, when there are no meritorious questions to consider.

      Appeal from District Court, Grady County; Frank M. Bailey, Judge.

    Joe Wilson was convicted of manslaughter,' and appeals.
    Affirmed.

      Stuart, Cruce & Gilbert, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

The plaintiff in error, Joe Wilson, was put on trial at the October, 1911, term of the district court of Grady county, on a charge of murder, and convicted of manslaughter in the second degree. His punishment was fixed by the court at imprisonment in the state penitentiary for a period of four years.

The homicide out of which this conviction grew was committed in the town of Chickasha on the night of the 29th of September, 1911. It appears that plaintiff in error and deceased had had some trouble prior to the homicide; that on this evening they were drinking; that plaintiff in error had owned a dangerous knife which had been sent from the Philippine Islands by his sister; that he had pawned the same; and that on this particular evening had redeemed it; that during the early hours of the evening he had had some words with the deceased and one Holcomb; that a brother of the accused was with Holcomb and the deceased. They separated, going in different directions, and later met again, when Holcomb and the accused became engaged in a difficulty. Some of the witnesses testify that deceased pulled Holcomb back from the contest in an effort to settle the difficulty. Others say he was advancing upon the accused in a threatening manner, but none say he was armed or doing any injury of any kind. The wound that caused the death was a deep stab into the abdomen; the blade of the knife severing an artery in the liver, death resulting in a short time.

A careful consideration of the record clearly indicates that a miscarriage of justice resulted in this case when the jury returned a verdict finding the accused guilty of manslaughter in the second degree. The evidence amply warranted a verdict of murder, and certainly nothing less than manslaughter in the first degree. There is not an assignment of error urged which has a semblance of merit. The accused had a fair and impartial trial, without error as against him. There is absolutely no merit in the appeal, and it should not have been brought.

The judgment of the trial court is affirmed.

DOYLE and FURMAN, JJ., concur.


text:
    JOHNSON QUINTON v. STATE.
    No. A-1781.
    Opinion Filed March 28, 1914.
    (139 Pac. 705.)
    1. HOMICIDE — Motion to Quash Information — Preliminary Hearing. An unverified motion to quash or set aside an information, on the ground “that there has been no preliminary hearing in said^eause before a magistrate, ’ ’ is insufficient to overcome the legal presumption of the regularity of the proceedings, where defendant is held to the district court on a charge of murder, and the transcript of the committing magistrate shows that defendant waived a preliminary examination; and the fact that the county attorney caused the state's witnesses to be sworn and examined after such waiver did not deprive the defendant of any substantial right. The state is not barred from holding a preliminary examination, even though defendant waives his right thereto.
    2. CONTINUANCE — Grounds—Time for Preparation. The fact of an agreement by and between the defendant and his attorneys three weeks before trial that said attorneys “should do nothing until the amount of their stipulated fee was paid or arranged” is no legal and sufficient cause for a continuance on the ground of lack of time to prepare for trial.
    3. HOMICIDE — Manslaughter—Sufficiency of Evidence. In a prosecution for murder, the evidence is held to support the verdict of manslaughter in the first degree, and that no reversible error was committed on the trial.

      Appeal from District Court, Sequoyah County; John H. Pitchford, Judge.

    Johnson Quinton was convicted of manslaughter in the first degree, and appeals.
    Affirmed.

      Jess W. Watts and James Breedlove, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., T. P. Shackelford, Co. Atty., and /. B. Allen, Asst. Co. Atty., for the State.
   DOYLE, J.

Plaintiff in error, hereinafter referred to as the defendant, was informed against as having, on the 8th day of December, 1911, in Sequoyah county, without authority of law, feloniously, and with a premeditated design, killed one John Parker.

The record shows that the defendant was arrested on the 9th day of December, 1911, on a warrant issued on a preliminary •complaint, and the preliminary examination set for the 18th day of December. On that day the defendant appeared in person and by counsel and signified his desire to waive a preliminary examination. Thereupon the examining magistrate and county attorney caused the state’s witnesses to be sworn, and their testimony taken, and the stenographic notes, with a duly certified transcript of the proceedings and order holding the defendant to the district court, were filed with the clerk of said court. The information was filed January 2, 1912. Indorsed thereon were the names of the witnesses who testified at the preliminary hearing. Time to plead was taken, and on the 4th day of January the ■defendant filed a motion to quash the information, on the ground '‘that there has been no proper preliminary hearing in said cause before a magistrate of Sequoyah county, Okla.,” which motion was overruled; and the defendant refused to further plead. Thereupon the court directed a plea of not guilty, which was •entered. January 6th the defendant filed a motion for continuance, which motion was taken under advisement by the court until the 8th day of January, at which time said motion was by the court overruled, and the case was called for trial. On January 10th the jury returned a verdict of manslaughter in the first degree, and assessed his punishment at imprisonment in the penitentiary for .a term of 21 years.

Motions for new trial and in arrest of judgment were duly filed, and on the 22d day of January overruled; thereupon the court pronounced judgment and sentence in accordance with the verdict of the jury.

The evidence shows that the defendant and deceased met in the road and went to the home of the defendant’s brother, Dave Quinton, and after dinner they went to Rocky Point schoolhouse, where some men were at work, and remained only a few minutes. They were next seen at the home of Mrs. J. E. Pollard, about two and one-half miles from said schoolhouse, with one Mat McMurtry. The three remained only a short time at Mrs. Pollard’s, then left; the defendant leading deceased, who was, at this time, very drunk. They went to the home of one Jerry Pollard, taking three or four drinks between the last-named places, which are about a mile apart. All were in a good humor, and drinking deceased’s whisky or alcohol. The three went from Jerry Pollard’s to Ambrose Wilcox’s house, a distance of about one-fourth of .a mile. About 200 yards from the house they stopped, McMurtry leaving, and deceased and the defendant proceeded to the gate. At this time deceased was staggering drunk, and the parties were laughing. McMurtry was away only about five minutes. When he returned the defendant had deceased’s revolver, and was sitting by a tree. Deceased was standing leaning against a tree, and something was said about going — deceased remarked that he would not go without his revolver. At this time deceased was too- drunk to walk without assistance. Being supported by the defendant and McMur-try, one on either side, they started down the trail, and after going a short distance they met Ambrose Wilcox and Ed. Clark, and the defendant and deceased had a scuffle. Wilcox had a shotgun, and deceased caught hold of same, and defendant jerked him away from the gun; deceased was cursing, and the defendant said to'him, “There is a man hold of you now; you will have to cut it out.” The defendant then threw the deceased down and held him for a few minutes and let him up. Deceased, with the bottle in his hand, staggered back towards the defendant; he dropped the bottle, and the defendant told Wilcox to pick it up. The defendant drew the revolver, cocked it, and said: “God damn you, stand back, stand in yoür tracks.” Thereupon “deceased staggered around and acted the fool like a drunk man will.” Deceased and the defendant again scuffled, both falling to the ground, the defendant getting astride deceased, who was lying on his back; whereupon deceased, with his hands on the defendant’s shoulders, uttered these, his last words, to wit: “You God damn son of a bitch, you aint’ game enough to shoot me with- my own gun.” The defendant held the revolver within a foot of deceased’s breast, and fired the fatal shot; death was almost instantaneous. At the report of the pistol, deceased’s hands fell to the ground; the defendant got up off of deceased, and demanded the bottle. Witness Wilcox handed him the bottle. The defendant asked witness McMurtry to go with him, saying to witnesses Wilcox and Clark, “Boys, say nothing about this.” Thereupon all of the parties left the scene where deceased was lying on his back dead; the defeandant and witness McMurtry going at a rapid pace back by Mrs. J. E. Pollard’s, a distance of two miles, from there to the home of one Sam McKinney, where the defendant left McMurtiy a short distance from the house, stating that he was going to McKinney’s to get more cartridges.

The defendant, as a witness in his own behalf, testified that while McMurtry was gone deceased said, “God damn you, I am going to kill you,” and jerked out his gun and drew it on him,and it snapped; that he grabbed the gun and wrenched it out of his hand; that in the final scuffle, when he had him down, deceased “ran his hand down in his pocket like he was going after a knife, and he says, ‘You God damn son of a bitch, I am going to kill you,’ and then I shot him;” that he had only taken two or three drinks that day.

The first assignment is: “The court erred in overruling the defendant’s motion to quash the information.” The showing made by the filing of an unverified motion is not sufficient to overcome the legal presumption of the regularity of the proceedings. The argument is made that, as the record shows, the defendant having waived his right to a preliminary examination, the only object which might materially be to his advantage from such waiver would be to dispense with the taking of the testimony of the state’s witnesses, and in the proceeding by the county attorney to have the witnesses sworn and examined after his waiver, he was deprived of this material right.

We know of no rule or principle of law that supports this contention. The county attorney, we think, very properly had' the testimony of the state’s witnesses taken, regardless of the defendant’s waiver.

In Ponosky v. State, 8 Okla. Cr. 116, 126 Pac. 451, this court held that "the. state is not barred from holding an examina7 tion, even though a defendant waives his right thereto.”

The second assignment is: “The court erred in overruling the defendant’s motion for a continuance.” The motion is based on alleged insufficient time to prepare for trial. The affidavits of the defendant and bis attorneys of record as attached to the motion alleged that the defendant, a three-quarter blood Cherokee, was without means, and seemingly did not realize the graveness of the charge, or the necessity of prompt action; that, being in jail, the defendant was unable to make satisfactory arrangements with his attorneys; and that no arrangement was made-until about a week before the trial.

A motion for continuance on the ground that counsel had not had a reasonable time to prepare for a defense is addressed to-the sound discretion of the trial court, and the doctrine established in this state is that only where there is an abuse of the discretion will a reversal be had.' The fact of an agreement by and between the defendant and his attorneys three weeks before trial, conditioned that the attorneys “should do nothing until the amount of their stipulated fee was paid or arranged,” is no legal or sufficient cause for a continuance on the ground of lack of time to prepare for trial.

The record shows that his counsel of record, Watts & Breed-love, appeared at the preliminary hearing, and that they represented him upon his trial, and the skill and vigor of the defense.as shown by the record refute counsels' argument on this point.

We think that it is not shown that the time was too short, or that the court, in refusing to postpone the trial, abused its discretion.

There are several other assignments of error, which we do not discuss, because we deem them destitute of merit.

We are of opinion that the defendant had a fair and impartial trial, with every right accorded him that the law justifies or requires.

The judgment of the district court of Sequoyah county herein will therefore be affirmed.

ARMSTRONG, P. J., and FURMAN, J., concur.


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    GEO. W. JACKSON v. STATE.
    No. A-1744.
    Opinion Filed March 21, 1914.
    (139 Pac. 324.)
    1. LARCENY- — -Corpus Delicti — Proof. In a prosecution for larceny of domestic animals, it is not essential that the corpus delicti should be established by evidence independent of that which tends to connect the defendant with its perpetration. The same evidence which tends to prove one may also tend to prove the other, so that the existence of the crime and the guilt of the defendant may stand together inseparable on one foundation of circumstantial evidence,
    2. SAME — Elements—Want of Consent — Proof. The want of consent of the owner to the taking of his property alleged to have been stolen is an essential ingredient of the crime of larceny of domestic animals. The fact of non-consent to the taking may ■ bo proven by facts and circumstances which sufficiently show that the property was feloniously taken.
    3. SAME — Sufficiency of Evidence. In a prosecution for larceny of domestic animals, circumstantial evidence examined, and held sufficient to sustain the conviction, and that no reversible error was committed on the trial.

      Appeal from District Court, Atoka County; Robt. M. Rainey, Judge.

    George W. Jackson was convicted of the larceny of domestic animals, and appeals.
    Affirmed.

      /. G. Ralls, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (C. /. Davenport, Asst. Atty. Gen., of counsel), for the State.
   DOYLE, J.

Plaintiff in error, George W. Jackson, was indicted in the district court of Atoka county, on the 17th day of September, 1909, whereby he was charged with having on the 22d day of February, 1909, committed the crime of stealing six head of cattle, the property of Dave Crawford. Upon his trial, the jury returned a verdict of guilty as charged and assessed his punishment at imprisonment in the state penitentiary for six years. This appeal is prosecuted from the judgment and sentence rendered in accordance with the verdict of the jury on the 3d day of December, 1911.

The evidence was substantially as follows:

C. F. Lewis, the first witness called, testified that he lived near Coalgate, and in February, 1909,’ he went with Dave Crawford to hunt some of Crawford’s cattle that were missing; that they’found and followed cattle tracks mixed with the tracks of two horses, one shod and the other a barefoot horse, from near mine No. 14 down Boggy creek; that about two miles from Boggy Depot the tracks led into a field, and there they saw where the cattle had rested by lying down in the corner of the field; that the next morning they followed the same tracks for about eight miles from Boggy Depot, and there found the cattle described in the indictment in the defendant’s pasture; that they had^Dave Crawford’s brand, “Bar W,” and a fresh brand figure “14”; that they drove the cattle back to Crawford’s pasture in Coal county.

Will Cummings, the second witness for the state, testified: That he lived at Lehigh and was a deputy sheriff; that he went with Dave Crawford and C. F. Lewis. That they followed some cow tracks mixed with horse tracks, and Monday they tracked them to near Lehigh. On Tuesday they tracked them to where the cattle went into a field and lay down; and on Wednesday they tracked them from the field into the defendant’s pasture. That the tracks showed that the cattle had been let out of the pasture by laying the fence down, and then putting it up. The cattle were branded “Bar W,” also a fresh brand figure “14.” That they stayed at the defendant’s place that night, but the defendant did not appear. That witness met the defendant the next day at Boggy Depot, as they were driving the cattle back, and he said they were his. cattle, and that he was going to make an affidavit that they were his cattle. That he went before a justice of the peace and made an affidavit that .he was the owner of said cattle. That witness asked the defendant Jackson where he got the cattle, and he said he bought them on the road near Clear Boggy, from two men; that he thought they lived in Atoka. That witness asked him who was present when he bought them, and the defendant said Jim Ross and Col. Shipley. That he said he paid $130 in cash for the cattle. That he just happened to háve the cash with him. That this conversation was had before the defendant was arrested. That there was no interruption in or other tracks at the place where the defendant said he bought the cattle. That they found a horse barefooted and a horse that was shod in the defendant’s pasture.

W. W. Betts testified that he was with Crawford, Lewis, and Cummings trailing the cattle on the last day before they found them; that figure “14” was the brand of the defendant Jackson and Dumas.

Howard Haskins, the next witness, testified that he lived at Boggy Depot, and saw the defendant Jackson and a man named Bob Ross driving cattle three days before Crawford and his party found the cattle, and they were, the same cattle Crawford took from Jackson’s pasture.

Lewis Dawson testified that he lived north of Coalgate, near Dave' Crawford, and knew his brand, which was “Bar W”; that he saw the cattle that were found in Jackson’s pasture, and they were Crawford’s cattle.

C. E. Standfield testified that he lived at Boggy Depot, and was a deputy sheriff; that Crawford, Lewis, Cummings, and Betts stayed all night at.his house; that he saw the defendant Jackson and another man driving the cattle two or three days before they were found in Jackson’s pasture; that these were the same cattle that Dave Crawford drove back; that figure “14” was the defendant Jackson’s brand.

Dave Crawford, the owner of the cattle charged to have been stolen, was not present at the trial.

When the state rested its case, the defendant moved the court to direct a verdict of not guilty, which was overruled, arid exception allowed. No evidence was offered by the defendant.

The first assignment of error is that the court erred in overruling a motion to quash the indictment. The motion was made upon the ground that there was no legal evidence before the gi'and jury to support it. Upon the face of the record, the motion to quash was properly overruled.

The second assignment is that the court erred in overruling the defendant’s motion for a continuance. This motion was based on the absence of Jim Ross, Barney Briscoe, Willis Fair-child, and Caleb B. Smith. The record shows that the defendant had caused subpoenas to issue for these witnesses, and that the sheriff was unable to serve them, because Jim Ross had left Atoka county six weeks prior to that time, and was a fugitive from justice; that Briscoe had gone to Arkansas, and the others could not be found in Atoka county. There was no showing that there was any probability that the attendance of these witnesses could be secured at the next term of court. The record before us does not indicate any abuse of discretion in overruling the motion.

The third assignment is that the trial court erred in overruling the defendant’s motion to direct a verdict of not guilty. Under this assignment it is contended that the evidence is insufficient to show non-consent of the owner of the cattle to the taking. The precise question here presented was considered and the authorities reviewed in the case of Campbell George v. United States, 1 Okla. Cr. 307, 97 Pac. 1052, 100 Pac. 46. The opinion is in part as follows:

“In many, and perhaps most, cases, to support a conviction, direct proof that the property was feloniously taken from the person named in the indictment as owner is necessary. Yet it is not essential in all cases that there should be any direct evidence upon this point. The application of the rule must always depend upon the facts of the case. Appellate courts should carefully consider and guard against so construing the law that a proper rule of evidence would be perverted into a means of escape from the merited punishment of an offender. Circumstantial evidence may be resorted to for the purpose of proving the corptis delicti in the same way and to the same extent that it may be for the purpose of connecting the accused with the commission of the offense. Mr. Bishop, in discussing the subject, says: Tf we look at the matter as one of legal principle, we can hardly fail to be convinced that while the corpus delicti is a part of the case which should always receive careful attention, and no man should be convicted until it is in some way made clear that a crime has been committed, yet there can be no one kind of evidence to be always demanded in proof of the facts any more than of any other.’ 1 Bishop on Criminal Procedure, sec. 1071. Mr. McClain says: ‘The corpus delicti need not be shown by direct evidence; that is, there need not necessarily be proof of loss of property by theft distinct from the fact showing that property found in the defendant’s possession was wrongfully taken from the owner thereof. Proof of the act is not necessary where the circumstances can only be explained by a felonious act.’ 1 McClain on Criminal Law, sec. 612. Neither is it essential that the corpus delicti should be established by evidence independent of that which tends to' connect the accused with its perpetration. The same evidence which tends to prove one may also tend to 'prove the other, so that the existence of the crime and the guilt of the defendant may stand together inseparable on one foundation of circumstantial evidence. * * * Mr. McClain, in discussing the question, says: ‘Where the question of want of consent of the owner becomes material, it is not necessary to prove such want of consent by the evidence of the owner himself. It may be shown by others having knowledge of the facts.’ 1 McClain on Criminal Law, p. 558.”

In our opinion all the elements constituting the crime of larceny of domestic animals were proved by uncontradicted evidence. A careful consideration of the whole case leads to the conclusion that no error was committed-at the trial to the prejudice of the substantial rights of the defendant.

The judgment of the district court of Atoka county is therefore affirmed.

ARMSTRONG, P. J., and PURMAN, J., concur.


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    BENTON MURRAY v. STATE.
    No. A-1786.
    Opinion Filed March 28, 1914.
    (139 Pac. 707.)
    1. HOMICIDE — Assault With Intent to Kill — Self-Defense—Evidence. In-a prosecution for assault with a deadly weapon with intent to kill, it is considered by the court that there was no evidence tending to show that the shooting was in self-defense.
    2. SAME — Harmless Error — Instruction on Self-Defense. Error, if any, in instructions defining the law of self-defense is not prejudicial to the defendant, where the evidence does not justify instructions on self-defense.

      Appeal from District Court, Greer County; G. A. Brown, Judge.

    Benton Murray was convicted of an assault and battery by means of a deadly weapon, and appeals.
    Affirmed.
    &. B. Garrett, for plaintiff in error.

      Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and R. B. Gish, for the State.
   DOYLE, J.

This appeal is prosecuted from a judgment and sentence entered on the 12th day of January, 1912, in accordance with the verdict of the jury, finding the plaintiff in error, Benton Murray, guilty of an assault with a deadly weapon, and assessing his punishment at imprisonment in the penitentiary for one year.

The information charged that “C. C. Murray and Benton Murray did make an assault on George Fluty by shooting him with a shotgun with intent to kill the said George Fluty.” When the cáse was called for trial, the defendants demanded a severance, and the county atorney elected to try Benton Murray first.

Plaintiff in error’s brief contains the following summary of the facts in evidence:

“C. C. Murray and George Fluty are brothers-in-law. Benton Murray, the plaintiff in error, is a son of C. C. Murray. Benton Murray lived with his father about one and one-half miles southeast of Mangum at the date of the occurrences involved in the case, and George Fluty lived about three miles southeast of Mangum at the same time. The Northwestern Railroad runs through the farm of C. C. Murray, passing about 300 yards from Murray’s residence. In December, 1911, prior to this difficulty, George Fluty and his son Romance or Andrew Fluty, in a difficulty with C. C. Murray, had held Murray and cut and stabbed Murray almost to death with a pocket knife. Fluty and his son were being prosecuted in the courts for this offense. On the evening of the difficulty for which defendant is prosecuted in this case, C. C. Murray was driving a pair of mules belonging to him from his house to his pasture across the railroad, and his son Benton, plaintiff in error, was assisting him. Murray was crossing the railroad and opening the gate at the right of way for the mules to go through, and Benton was some 60 yards further south on or near the railroad, turning the mules to the gate, as George Fluty came along, with his sons Romance Fluty and Andrew Fluty and a young man niamed Hurleng some 50 yards behind him, all walking along the railroad track. Murray told Fluty that he had rather he would not be passing through his field, from which an altercation arose between George Fluty and C. C. Murray, and George Fluty called to his boys to come on; Fluty having stopped on the track near Murray, and, as claimed by Murray, made a demonstration as if to draw a weapon, whereupon Murray hallooed to his son Benton to run to the house and get the gun. Benton ran to the house and got the gun, and Fluty and the boys passed on beyond Murray further down the track, and Murray got into a cut or where the dirt had been removed from a ditch, so that, when Benton returned, he did not see his father. As Benton returned with the gun, and when within about 30 yards of Fluty, who had just come out of the railroad cut, he hallooed at Fluty and asked him to go on and let his father alone. Fluty stopped, and some curse words passed back and forth, during which plaintiff in error fired one barrel of the shotgun at Fluty, striking him in the back, side, and legs with birdshot. Benton Murray claimed that at the time the shot was fired Fluty was making a demonstration as if' to draw a weapon from his pocket, and on this point Fluty said he was not armed, but would not state whether he put his hand behind or towards the pocket as if to draw a weapon or not. Both barrels of the gun were loaded. but no attempt was made to fire a second time. The above is a fair statement of the 200 pages and over of the evidence.”

The evidence further shows that George Fluty, immediately after he had been shot, was removed to a-hospital, where he was operated on and 34 punctures found in his body, and fourteen or fifteen shot were taken out; and that the wounds were of such a character as might have caused death.

The only errors urged by the plaintiff in error are based upon the instructions defining the law of self-defense. We think the objections made are hypercritical. Under all the testimony, including that of codefendant, C. C. Murray, and that of plaintiff in error, there was not even the appearance of imminent danger to himself or his father, C. C. Murray, at the time of the shooting. ITe states that before he returned with the gun Fluty “came out of the cut and was coming on east,” which meant that Fluty was walking away from old man Murray, southeast down the track. His testimony also shows that he first called out to Fluty and asked him “why he kept jumping on and abusing the old man.” This after Fluty had moved off 60 yards or more down the track and away from where they had met. His advance upon Fluty with a shotgun was a menace, and the fact is undisputed that he first accosted Fluty and he was following him when he shot him. There was no apparent necessity for it in the defense of his father or himself.

When we consider the rule that what a defendant testifies to against his interest is to be taken as true, there is no evidence tending to show that plaintiff in error acted in self-defense or in defense of his father when he made the assault. One who seeks and brings on an affray cannot shield himself under a plea of self-defense. The facts, as testified to by plaintiff in error, in his own behalf, afford no justification for his murderous assault. The charge of the court was eminently fair and without fault.

Judgment affirmed.

ARMSTRONG, P. J., and FURMAN, J., concur.


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    BOB WALKER v. STATE.
    No. A-1797.
    Opinion Filed March 28, 1914.
    (139 Pac. 711.)
    1. HOMICIDE — Principals and Accessories. One who is present, aiding and abetting in a murder, is guilty as a principal, though another does the killing.
    2. WITNESSES — List of Witnesses — Disqualification of Witness. Under section 20, Bill of Bights, the defendant in a capital ease has a constitutional right to be furnished with a list of the witnesses that will be called in chief to prove the allegations of the indictment or information, together with their post-office addresses; such list to be furnished at least two days before the ease" is called for trial. In the instant case, held, that the failure of the state to give the Christian name of a witness in the list of witnesses furnished did not disqualify such witness from testifying, because it affirmatively appears from the record that the defendant was not misled to his prejudice by reason of such omission.
    3. CRIMINAL LAW — Constitutional Right — Waiver. Where a constitutional right is largely for the benefit of the defendant, and in the nature of a piersonal privilege, the law is well settled that the defendant may waive such right.

      Appeal from District Court, Creek County; Wade S. Stanfield, Judge.

    Bob Walker was convicted of murder, and appeals.
    Affirmed.
    Plaintiff in error, Bob Walker, herein referred to as the defendant, was by information charged with having killed Ered Evans, at Mannford, Creek county, Oltla., on the 2d day of December, 1911. Upon his trial he was found guilty of murder, and his punishment assessed at imprisonment in the penitentiary for life. Judgment and sentence was rendered on the 10th day of February, 1912.
    The evidence shows that the defendant, Bob Walker, and his brother, Bud Walker, went to work, picking cotton, for Joe Hayes on the 20th day of October, 1911, and lived in a tent in the yard of his house, two miles south and a quarter of a mile west of Mannford, until the 2d day of December, that year. About the hour of 7 o’clock, in the evening of that day, J. R. McDaniels was driving home from Mannford in a farm wagon. His son-in-law, Howard Walker, was with him. About two miles south of Mannford, Bud Walker climbed into the wagon, and after riding a short distance held a six-shooter on them and told them to throw up their hands. The defendant then appeared and climbed into the wagon and searched their clothes, taking a watch and a po.cketknife from McDaniels, who had dropped his pocketbook, and taking a watch and two pocketknives from Howard Walker. McDaniels stopped at the next house and gave the alarm by telephone. He borrowed a gun and returned to Mannford, and the town marshal with a posse started out to capture the highwaymen. Two negroes were seen on the road near the stockyards; a member of the posse called upon them to halt, and this command was repeated by two or three others. The negroes both fired upon the posse, one emptying his gun and the other firing two or three shots; one striking -Fred Evans, the deceased, above the eye, killing him instantly. One of the negroes ran northeast and the other east. Bud Walker was captured and lynched that night. The defendant was arrested at Claremore the next day. McDaniels’ watch and four pocketknives and 30' cartridges were found on his person.
    The testimony for the state was substantially as follows:
    Earl E. Ellsworth testified that he lived at Enid, and was a fireman on the Frisco between Enid and Tulsa; that.while his engine was near the east end of the yards at Mannford, about ■8 p. m., December 2d, a couple of negroes got on the back end of the engine tank, each carrying a pistol in his hand. A crowd of men were coming down the track, and the negroes jumped off and started down a nearby road; some one called on them to •halt, and the negroes commenced to shoot at the crowd; that the second shot from the shortest negro killed a white man; that no shot was fired by any person in the crowd until the man was killed; that then they all began to shoot; that both negroes wore stiff hats and three-quarter length overcoats.

      B. J. Chronic testified that he was a banker at Mannford; that the town marshal, Rider Bruner, directed him, with others, to look over a freight train that was in the yards for the two negroes that had held up Mr. McDaniels that evening; they found a negro in a coal car, but that he was not one of those that they were looking for; that it was a bright moonlight night, and they saw two negroes coming down the road; that he called on them to stop, and they opened fire and both shot at the posse before any person shot at them; that he was standing near Fred Evans when he fell dead almost at his feet.
    'Willie Mann testified that he was present when Fred Evans was shot and saw him fall; that both negroes were shooting when he fell; that the negroes then parted, one going north and the other east.
    R. C. Poulter testified that he was loading cotton that evening, and was called on to help arrest a couple of negroes; that the two negroes ran out from the freight train, and some one of the party called on them to halt, and the negroes opened fire; that they were standing two or three feet apart when they fired the shots; that the short negro fired one shot and Fred Evans •fell; that when they separated the short negro went north and the other down the road; that he found a Colts 38 on a 45 frame at the side of the road, near where the negroes were when they separated; it had six empty shells.
    W. E. Gage testified that he was present when Fred Evans was killed, and after the shooting tracked the negro that went north and covered some of the tracks with brush; that the next morning Mr. Berry and other parties brought a couple of bloodhounds and they put them on the tracks that he had covered. The bloodhounds followed the tracks about a mile; they went almost in a circle back to the railroad. In following the tracks they found an overcoat with the right elbow torn out.
    Claud Evans testified that he was a brother of the deceased, and was present when his brother was killed; that he saw the defendant, with another negro, about an hour before, a mile and a half south of Mannford; that the other negro was the tallest of the two; that about fifteen minutes later he met McDaniels and went with him in pursuit of the negroes; that he was standing within five feet of his brother when the latter fell, and the negroes were in the road about twenty steps from him; that the defendant shot at the time his brother fell; that he then began shooting, and the negroes started to run, the defendant going northeast.
    E. S. Plank testified that he was a policeman at Claremore and arrested the defendant on Sunday afternoon, December 3d, in Claremore, and took from him an Elgin watch, four pocketknives, and some 30 cartridges; that the defendant did not have an overcoat, but was wearing a stiff hat.
    J. R. McDaniels, as a witness, identified this watch as the one that was taken from him by the defendant when he was robbed, and identified one of the pocketknives as one that was taken from him.
    I-Ioward Walker identified one of the pocketknives that had the name “Corb Moore” engraved upon it as one that was taken from him by the defendant when he robbed witness on the highway.
    Joe Hayes, as a witness, identified the gun that was found near the road as one that the defendant’s brother kept in his house while he was picking cotton for him.
    The defendant, Bob Walker, as a witness in his own behalf, testified: That his home was at Daingerfield, Tex. That he and his brother went to work picking cotton for Joe Hayes. That the gun found where the shooting occurred was his brother’s gun. That on Saturday evening they started for Mannford, intending to gO' from there to Wagoner. That when they got about halfway to Mannford they heard a wagon coming, and his brother told him to turn around and go back, “and I said it would be bad luck to turn back, and he said, ‘Go on and say nothing.’ ” That he was going to get into the wagon. That when he had gone about 100 yards he heard some one say, “Whoa,” and his brother called him. That his brother had two men in the wagon holding their hands up, and he said to him, “Get in and go through them.” His brother stood behind the seat and held the gun, and after he went through them he and his brother got out of the wagon and started straight up through the woods; after going two or three miles they came to the train track, and his brother said: “You lay down; I am going uptown, up where that freight train is standing, to see if I can find an open car, and I will be back directly.” That in about 30 minutes he came back, and said, “I met a fellow up there I seen in Kansas City; I used to run with him; he was my partner, and he is going the same way, and when the train comes by you catch it”— and “I told him I could not catch the train with this overcoat, and he said, 'Give me the overcoat,’ and he took the overcoat with him, and said, ‘When you see us coming, get ready to catch the train.’ ” That when his brother went back he lay down on the side of the railroad. That “the next he saw them coming down the road,” and the shooting commenced, and he ran into the woods and kept on until he got to the river and then followed the river, walking all the way to West Tulsa, and there got on the train and went to Claremore.

      Pryor, Rockwood & Lively, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. 'Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

(after stating the facts as above). The assignments of error relied upon for the reversal of this judgment are based on exceptions to rulings in receiving and rejecting evidence. A careful examination of the record leads to the conclusion that the only error assigned which we cannot disregard as merely technical and without substantial merit is the first, that the court erred in permitting the state’s witness Earl E. Ells-worth to testify without service of written notice at least two days before the trial. The record shows that on February 5, Earl E. Ellsworth was sworn and called as the first witness for the state. After stating his name, age, and residence, the defendant objected to his being allowed to further testify “for the reason that his name was not indorsed upon the information as required by law, and that no notice has been served upon the defendant that this witness would be produced as a witness against him.” Thereupon the county attorney introduced a copy of a notice, which, omitting title, reads as follows:

“Notice.

“To Bob Walker, Defendant:

“You are hereby notified that the above-styled case in which you are the defendant has been set for trial on the 30th day of January, 1912, at nine o’clock a. m. at the courthouse in Sapulpa, Oklahoma, and that the following is part of a list of the witnesses that • will be called in chief to prove the allegations of the information filed against you, together with their post-office addresses:

Name of Witnesses. Post Office Address.

Elsworth whose first name is unknown to me. Enid, Oklahoma.

Jim Hayes. Mannford, Oklahoma.

J. J. Horn. Mannford, Oklahoma,

“Dated at Sapulpa, Oklahoma, 1912. this 25th day of January,

“Vick S. Decker, County Attorney.

“By Roy T. WiedmaN, Dep. Co. Atty.”

Indorsements:

“1197. State v. Bob Walker. Received and filed this 27 of Jan., 1912.

“J. B. Summers, District Clerk.

“Received this notice on 25th day of January, 1912, served same on Bob Walker in person on 25 day of January, 1912, by delivering him a true copy.

“J. W. Berry, Sheriff, Creek County,

“By J. H. TowNPENd, Deputy.”

Also a subpoena issued on the defendant’s praecipe for Earl E. Ellsworth, which subpoena shows that it was served by the sheriff on the 2d day of February, 1912. Thereupon the defendant’s objection was overruled by the court. The objection is founded on section 20 of the Bill of Rights, which provides, among oth^r things, that:

“In capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief to prove the allegations of the indictment or information, together with their post-office addresses.”

This constitutional provision is mandatory, and preserves an important right to a defendant in a capital case. Its purpose is to enable him to inquire into the testimony that he will be called on to meet, and to enable him to prepare for his defense.

Where a constitutional right is largely for the benefit of the accused, or in the nature of a personal privilege, the daw is' well settled that an accused may waive such right. Blair v. State, 4 Okla. Cr. 359, 111 Pac. 1003; Starr v. State, 5 Okla. Cr. 440, 115 Pac. 356; Stouse et al. v. State, 6 Okla. Cr. 415, 119 Pac. 271.

Says Mr. Bishop:

“Any right given by statute or otherwise to the defendant for his benefit, such as to have a copy of the indictment, or a list of the jurors, or of the witnesses against him, at a particular time, or before trial, may be waived, either in words or by omitting to apply for the thing. And if, for example, the copy of the indictment furnished him is incomplete, he cannot first object after trial.” (Bishop’s New Crim. Proc. par. 126.)

In the case of Logan v. United States, 144 U. S. 263-304, 12 Sup. Ct. 617, 630 (36 L. Ed. 429), it is said:

“The defendant, if indicted for treason, is to have delivered to him three days before the trial ‘a copy of the indictment, and a list of the jury, and of the witnesses to be produced on the trial for proving the indictment;’ and if indicted for any other capital offense, is to have ‘such copy of the indictment and list of the jurors and witnesses’ two days before the trial. The list of witnesses required to be delivered to the defendant is not a list of the witnesses on whose testimony the indictment has been found, or whose names are indorsed on the indictment; but it is a list of the ‘witnesses to be produced on the trial for proving the indictment.’ The provision is not directory only, but mandatory to the government; and its purpose is to inform the defendant of the testimony which he will have to meet, and to enable him to prepare his defense. Being enacted for his benefit, he may doubtless waive it, if he pleases; but he has a right to insist upon it, and if he seasonably does so, the trial cannot lawfully proceed until the requirement has been complied with. United States v. Stewart, 2 U. S. (2 Dall.) 343, 1 L. Ed. 408; United States v. Curtis, 4 Mason, 232; United States v. Dow, Taney, 34 [Fed. Cas. No. 14990]; Reg. v. Frost, 9 Car. & P. 129; 2 Mood. C. C. 140; Lord v: State, 18 N. H. 173; People v. Hall, 48 Mich. 482, 487 [12 N. W. 665, 42 Am. Rep. 477] ; Keener v. State, 18 Ga. 194, 218 [63 Am. Dec. 269].”

And in Hickory v. U. S., 151 U. S. 303, 14 Sup. Ct. 334, 38 L. Ed. 170, it is held that the benefits of this statute may be waived expressly or impliedly by failure to make seasonable objection.

It clearly appears from the record that the defendant had written notice as early as January 25, 1912, that a man by the name of Ellsworth, whose post-office address was Enid, Okla., would be used in chief by the state, and that the first name of such witness was unknown at that time to the county attorney. There was no showing that the county attorney had any fuller knowledge of the witness’ name than that contained in the notice served, nor showing of any attempt on his part to conceal the identity of this witness, and no objection to the list as served upon the defendant was made before entering upon the trial, nor did he ask for continuance because of the uncertainty of the name of this witness, and in this connection it will be observed that the defendant had caused a subpoena to be served upon the same witness to testify in his behalf. So that it clearly appears that the defendant not only had ample notice of the identity of the witness, but that he was acquainted with what his testimony would be, to such an extent that he caused said witness to be subpoenaed in his own behalf.

We cannot give our consent fe> a construction of the constitutional provision that would necessitate a reversal of 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,.

The court very fully and fairly instructed the jury as to all questions of law arising in the case.

The only controverted question is as to whether the defendant was present and participated in the shooting. The testimony of all the witnesses, except the defendant, is that he was present at the time of the homicide, aiding and assisting in it. One who- is present, aiding and abetting in a murder, is guilty as a principal; though another does the killing.

We are not favorably impressed with the defendant’s testimony in which he attempts to prove an alibi.

A careful examination of the record leads us to the conclusion that the only debatable question in the case for the jury to consider was whether the defendant’s punishment should be death or imprisonment for life. Having been unable to find any material error in the proceedings in this case, the judgment of conviction will be affirmed.

ARMSTRONG, P. J., and FURMAN, J., concur.


text:
    H. C. PARKER v. STATE.
    No. A-1821.
    Opinion Filed April 1, 1914.
    (139 Pac. 708.)
    1. NEW TRIAL — Power to Grant — Time. In a criminal case the trial court has no power to grant a new trial on the ground of newly discovered evidence, after the next succeeding term at which the case was tried.
    2. APPEAL — Mandate—Subsequent Proceedings. When a judgment of conviction has been affirmed on appeal and mandate issued, the trial court has no power to set aside said judgment, but must cause the judgment to be carried into execution.
    3. SAME — Denial of New Trial. There is no statute authorizing an appeal from an order denying a motion for a new trial, except as instant to an appeal from a judgment of conviction.

      Error from Superior Court, Oklahoma County; E. D. Oldfield, Judge.

    Appeal from supplemental motion for new- trial, on the ground of newly discovered evidence.
    Appeal dismissed.

      H. W. Winn, for plaintiff in error.

      Chas. West, Atty. Gen., for the State.
   DOYLE, J.

H. C. Parker, plaintiff in error, was convicted in the superior court of Oklahoma county of the crime of burglary, and was, on the 29th day of April, 1911, in accordance with the verdict of the jury, sentenced to be imprisoned in the penitentiary for a term of• four years; the term of the sentence to begin at and from the date of his delivery to the warden. From this judgment and sentence an appeal was properly taken to this court, and resulted in an affirmance. Parker v. State, 7 Okla. Cr. 238, 122 Pac. 1116, 124 Pac. 80, opinion filed April 25, 1912. Pending said appeal, the defendant, being unable to give bail, was held in the Oklahoma county jail. On the 13th day of August, 1912, he filed a supplemental motion for a new trial upon the ground of alleged newly discovered evidence. Thereafter, on August 17, 1912, said motion for new trial was overruled, and from the order overruling the supplemental motion for a new trial, the defendant appealed by petition in error with case-made. The Attorney General has moved to dismiss the appeal taken from the order denying the supplemental motion for a new trial.

It is sufficient, for the purposes of the motion, to refer to the provisions of Procedure Criminal regulating the practice. Section 5938, Rev. Laws 1910, reads as follows:

“The application for a new trial must be made before judgment is entered; but the court or judge thereof may for good cause shown allow such application to be made at any time within thirty days after the entry of the judgment. A motion for a new trial on the ground of newly discovered evidence may be made after judgment at the term at which the case was tried, or in vacation, before the judge or at the next term of court, and if on the ground that the grand jury was not properly drawn or impaneled then the motion must be made not later than the next term after trial.”

A supplemental motion for a new trial must be made not later than the'term at which the case was tried, or at the next succeeding term, and the trial court is without power or jurisdiction to grant a new trial on the ground of newly discovered evidence in a criminal case after the next succeeding term at which the case was tried.

In the case of Reed v. State, ante, 137 Pac. 369, it was held:

“After a case has been affirmed on appeal to the Criminal Court of Appeals, and is sent back to the trial court, the trial court has no power -to set aside said judgment, but it must be carried into execution as directed by this court.”

In the case at bar the supplemental motion for a new trial was made more than a year after judgment. Therefore the court was without jurisdiction to entertain the motion as made. It is not claimed that the proceeding was an effort to sue out the common-law writ of error coram nobis, to set aside a judgment of conviction obtained by duress or fraud. See Sanders v. State, 85 Ind. 318, 44 Am. Rep. 29; Adler v. State, 85 Ark. 517, 37 Am. Rep. 48; State v. Calhoun, 50 Kan. 523, 32 Pac. 38, 18 L. R. A. 838, 34 Am. St. Rep. 141.

There is no statute authorizing an appeal from an order denying a motion for a new trial, except as instant to an appeal from a judgment of conviction. An appeal is not a matter of inherent right. It is a right extended to the defendant by the favor of the state.

Procedure Criminal provides (section 5988, Rev. Laws 1910) :

“An appeal to the Criminal Court of Appeals may be taken by the defendant, as a matter of right, from any judgment against him; and upon the appeal, any decision of the court, or intermediate order made in the progress of the case may be reviewed.”

The language of the statute is so plain that there is no room for construction. If it were otherwise, a new opportunity would be afforded to invite the law’s delay. The appeal from the order of August 17, 1912, overruling the defendant’s supplemental motion for a new trial, should therefore be dismissed.

The further relief prayed for is “that in the event the decision is adverse to him, the judgment be modified so that the time served by the defendant in the county jail be deducted from his sentence of four years.”

It appears from the record that for some reason the defendant was not transferred to the penitentiary until the 22d day of September, 1912, since which date he has been confined in the penitentiary at McAlester. This matter was not called to the attention of the court upon the appeal proper. In view of the fact that the defendant has been confined for some time before and since the date of the judgment, in furtherance of justice, the judgment of conviction will be modified to read that the term of sentence is to begin at and from the 29th day of April, 1911, the day the judgment was rendered. The trial court will cause the warden of the penitentiary to be notified of this modification of the judgment.

ARMSTRONG, P. J., and FURMAN, J., concur.


text:
    CHARLEY SMITH v. STATE.
    No. A-1446.
    Opinion Filed April 1, 1914.
    (139 Pac. 709.)
    1. CONTINUANCE — Refusal of Continuance. Where, without preliminary complaint, the indictment was returned more than 18 months after the alleged offense was committed, and the ease called for trial nine days later, and defendant’s affidavit for continuance contained all the formal allegations required by law, and shows the temporary absence of two material witnesses, and shows what facts defendant expects to prove by said witnesses* and that he has used all possible diligence in endeavoring to get ready for trial, it was error to refuse a continuance.
    2. LARCENY — Elements of Offense — Felonious Intent. To consti-r tute larceny, there must have existed a felonious intent at the time of the taking.
    3. SAME — Sufficiency of Evidence. Evidence in this case considered and found insufficient to warrant a conviction.
    On rehearing.
    Reversed.
    For former opinion, see 9 Okla. Cr. 15, 130 Pac. 517.

      Tom W. Neal, for plaintiff in error.

      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error, Charley Smith, was indicted in the district court of LeFlore county on April 12, 1912, wherein he was charged with stealing a steer, the property of H. C. Dye and J. B. Maxey. The theft is alleged to have been committed on or about the 1st day of October, 1910. Upon his trial he was found guilty, and his punishment assessed at three years’ imprisonment in the penitentiary. Judgment and sentence, in accordance with the verdict of the jury, was entered on the 6th day of May, 1911. From the judgment the defendant appealed. Upon motion ifer the state, the judgment was affirmed March 8, 1913. 9 Okla. Cr. 15, 130 Pac. 517. Thereafter, on the 14th day of March, 1913, petition for rehearing was filed, and, it appearing that the briefs had been misplaced, a rehearing was granted.

Several errors are assigned, but in the brief filed for the defendant but two questions are discussed: First, error of the court in overruling defendant’s motion for a continuance; second, the insufficiency of the evidence to sustain the verdict.

Nine days after the indictment was returned, the case was called for trial, and the defendant filed his motion and presented his affidavit for a continuance, which, omitting the formal parts, is as follows:

“First. That there are absent from said court certain witnesses whose testimony is material to his defense, and without which he cannot get to trial, as follows, to wit: Walton James, who has resided all his life in Poteau, LeFlore county, up until a few weeks ago, when he went to Arizona temporarily, and has not yet returned; that said Walton James, if present, would testify that the steer with which this defendant is charged with stealing_ belonged to Wm. Monks, a cattleman who lives near McCurtain in the state of Oklahoma, and that this defendant took the steer to put in his own pasture, and to keep for the said Mm. Monks, and never at any time asserted any claim of ownership over said steer. That this defendant, while driving'said steer to his pasture, injured it and broke it down in the loins, and, in order to preserve any part of said steer, it became and was necessary for this defendant to sell the said steer to Poonix Bros., butchers at Poteau; that this defendant has not issued subpoena for the said Walton James since the finding of this indictment, because of the fact that it was well known to everybody, and to this defendant, that the said Walton James was in Arizona temporarily, and temporarily absent from his home in Poteau, and temporarily absent from this county and state.

“Second. That there is absent from attendance upon this court one Joe Trammel, who- the defendant is informed is now in Cheyenne, Wyo., but who was present in Poteau at the time of the indictment in this cause, and for whom this defendant immediately caused subpoena to issue to serve upon the said Joe Trammel, which said subpoena was duly and lawfully served by the sheriff of this county, and the said Joe Trammel is not present in attendance upon the court; that, if present, he would testify that the steer in question was branded with a large ‘Z’ upon the side, and that the said Wm. Monks had employed him (the said Joe Trammel) to hunt fpr said steer, and was present when the said Monks told the defendant, if he could find the steer, to put him in his pasture, and keep him until the said Monks' could send for him; that said witness, if present, would testify that said steer was branded with a big ‘Z’ as aforesaid, also branded with the figure ‘21’ on shoulder and hip.

“That said defendant cannot prove said facts above set out by any other witness, and said testimony is true, and that he used all reasonable diligence to procure the attendance of said witnesses at this term. That this indictment has only been returned into this court since the 12th day of April, 1911, and that defendant has not had time to procure the depositions of said witnesses, nor to prepare his defense.”

On the 25th day of April, 1911, the court overruled the motion for continuance, exception was taken, -defendant entered his plea of not guilty, and the trial proceeded.

It is the settled rule in this state that a motion for continuance is addressed to the sound discretion of the trial court under all the circumstances of the case, and its action thereon will not be disturbed, unless an abuse of discretion appears. In the instant case, we think a clear abuse of discretion appears. There can be no question but that the absent testimony as set forth in defendant’s affidavit was material and indispensable to his defense, and the evidence adduced on the trial does not render it improbable that it is true. In view of the fact that there was no preliminary complaint filed against defendant, and it appearing that the indictment was not returned until more than eighteen months after the alleged offense was committed, it would seem that defendant was entitled to reasonable time to prepare for trial, and it was error in the court to overrule his motion for a continuance.

The state’s evidence shows that Dye & Maxey, a partnership doing a general cattle business,, used' two “Z’s” as their brand, one on the side, and one on the left hip, one “Z” about four inches, and the other over a foot; and a man by the name of Monks owned a brand known as a large “Z.”

J. B. Maxey testified that the defendant told him that he. had killed the steer and sold it to the butcher at Poteau; that he was working for Mr. Monks, and had crippled, the steer, and thought the best thing he could do was to butcher it; that Monks had bought the Ben Thompson cattle, and their brand was a little “Z.”

T. A. Bullard testified that he saw defendant kill the steer; that he had the steer tied to a stump near his home; that the steer was crippled, and he asked him to water it. The next day defendant came back with another man and killed the steer.

Will Aldridge testified that the steer had been in the neighborhood about four years; that he talked to the defendant about the steer, and the defendant said that the steer was Monks’, and that Monks told him to get the steer for him; that defendant roped the steer and started away with it, and later he saw the steer tied to a stump near the road.

B. Mabrey testified that he knew the Ben Thompson’s brand; that it was a “Z” on the shoulder.

William Monks testified that he knew the Maxey brand, two “Z’s,” and then the Ben Thompson brand was “Z”; that he bought the Ben Thompson’s cattle, but did not authorize the defendant to get up the two “Z” steer; that the defendant did help him to get up steers with the Ben Thompson brand; that somebody told him that there were some of his Thompson steers up there, and he told Quarles that he would pay him to bring them down to him; that the defendant told him that some of them were claiming that steer of his, and he told him that he would pay him for bringing down any of his cattle.

On behalf of the defendant, Oscar Quarles testified that Bill Monks told him to get the steer with a “Z” brand. That he tried to get the steer, but the steer got away.

A witness, Jones, testified that he saw the steer some time in June, and told Bill Monks that he thought he had found one of the steers that he had bought from Thompson with the “Z” brand.

The defendant testified, in his own behalf, that he had lived near Poteau ten years, farming, buying and selling stock; that Mr. Monks asked him if he had seen any steer branded with a “Z,” and he told Monks about seeing this steer, and Monks said that he had bought the Thompson’s cattle with the “Z” brand, and told defendant to bring the steer down the next time he went up there; that he was there in October and roped the steer and started with him, and the steer commenced fighting and fell; that he tied him to a stump, and went back the next morning; that he tried to drive him and went a little piece, and the steer fell down again; that, when he found that he had crippled the steer, he went to Poteau and sold it to the butcher for $30; and returned with the butcher’s boy and they butchered the steer; that he had not paid Mr. Monks, and no other person had ever demanded the proceeds of the steer from him.

We are constrained to hold that the evidence is not sufficient to support the verdict and judgment of conviction. We think the state’s evidence is not prima facie sufficient to establish the corpus delicti. The circumstances of the taking, as shown by the witnesses, are that the steer was taken in the daytime in the presence of Aldridge and others by defendant, not as his property, but as the property of Monks, and for the purpose of turning it over to the owner. All the witnesses who knew anything about the facts testified that the steer was crippled, and was kept tied by the side of the road a part of two days before it was finally butchered. Whether, in fact, it was the property of Monks or not, there is, no proof to show that defendant did not believe that it was the steer that belonged to Monks. The evidence at most does not raise more than a mere suspicion that the taking was felonious.

For the reasons stated, the judgment is reversed.

ARMSTRONG, P. J., and FURMAN, J., concur.