text:
    WILL GREEN v. STATE.
    No. A-4759.
    Opinion Filed Feb. 4, 1925.
    (233 Pac. 244.)
    (Syllabus.)
    1. Trial — Right of Accused to Instruction Defining Law Applicable to( His Theory. In the trial of a criminal case, a defendant is entitled to an instruction defining the law applicable to his theory if there is any competent evidence reasonably tending to substantiate that theory.

      2. Appeal and Error — Brief Should Point out Specific Parts of Instructions Complained of and Cite Authorities to Official OkIM homa Reports. When the error alleged relates to the instructions of the court, whether given or refused, the brief of plaintiff in error should point out the specific parts complained of, and citation of authorities should be to the official State Reports of this state.
    3. Homicide — Evidence Sustaining Conviction of Assault with Intent to Kill. Evidence examined and found sufficient to sustain the verdict.
    Appeal from District Court, Canadian County; James I. Phelps, Judge.
    Will Green was convicted of assault with intent to kill, and he appeals.
    Affirmed.
    E. J. Giddings, for plaintiff in error.
    George F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The evidence discloses that a posse of officers, at night, near Piedmont, discovered a still in a straw stack which had been hollowed out. No one was present, so the posse hid near by. Soon thereafter two men approached, one on foot and one on horseback. According to the evidence of the state, when the posse raised up from hiding, one of the men fired and the posse returned the fire. Both men ran, and the posse pursued. After running a short distance, the man on foot turned and fired a gun, and a few hundred yards further on the plaintiff in error in this case was overtaken. In his pocket was a hollow copper wire and some small parts used about a still. He was tried for shooting with intent to kill a member of the posse.

The brief of the plaintiff in error is directed at errors relating to the instructions given by the court, and those offered and refused. The motion for a new trial is insufficient to point out the errors complained of. The fourth and twelfth assignments challenged the instructions, and are as follows:

“(4) Because the court misdirected the jury in matters of law and duly excepted to by the defendant.
“(¡12) Because the court erred in refusing to give defendant’s requested instructions numbered 1 to 19 respectively, to which defendant duly excepted.”

The plaintiff in error in his brief has not in any sense complied with rule 7 of this court by setting out the instructions or parts of instructions which are complained of that were given or refused. He does not specifically and particularly set out in his brief the errors intended to be relied on. The brief is merely a running statement and argument of which the following is an excerpt:

“Our ninth requested instruction at page 269 of the case-made asks the court to instruct the jury with regard to assault and battery and the punishment therefor. Requested instruction No. 10, at page 270 of the case-made, is on the law of circumstantial evidence, and certainly should have been given. Instruction No. 12 certainly should have been given, and we most earnestly insist that it was reversible error not to give it. It is found at page 271 of the case-made, and is our requested instruction No. 12, and is on the law of self-defense, and sets out the salient features of self-defense, and nowhere in the instructions is there a word thereon. We also think it was error for the court to fail to give our requested instruction No. 13, at page 272 of the case-made, which follows the identical language of the statute as to when a peace officer may or may not shoot at or kill any person, and when he may or may not make an arrest. Instruction No. 15 at pages 272 and 273 should have been given. It is with regard to when peace officers may arrest without warrant.”

There is much more to the same effect. We have, however, examined the record and considered the arguments presented by the plaintiff in error. One of the contentions made is that an instruction on circumstantial evidence should have been given. The case is not in any sense a circumstantial evidence case, and such contention is without merit.

It is also argued at some length that the jury should have been instructed on the law of self-defense. The plaintiff in error took the stand and testified in substance that on the occasion in question he had gone hunting at night with a dog and shotgun; that he went by chance to the straw stack where the still was, and there found the hollow copper wire, or “jigger,” as he called it, and put it in his pocket. While standing there he heard a shot, saw a horse running to the northwest, and directly a man came up on foot running, and these men (posse) were firing at him, and that he (plaintiff in error) went off southwest and the other man northwest; that he turned and fired to one side, but did not try to hit any one; that he was shot in the back and shoulders with a shotgun; that he finally stopped, threw down his gun, and stuck up his hands.

The theory on which the defense was based was that he never shot at any member of the posse at all; that he shot once to frighten his pursuers. There is no evidence - indicating that he shot in self-defense.

This court has held that the accused in a criminal case is entitled to instructions defining the law applicable to his theory and covering his defense, if there is competent evidence tending reasonably to substantiate his theory. Courtney v. State, 10 Okla. Cr. 589, 140 P. 163; Reed v. State, 3 Okla. Cr. 18, 103 P. 1070, 24 L. R. A. (N. S.) 268.

But the court is not required to give a law on some theory not warranted by the evidence and on a theory different to that taken by the defendant in the trial. Under the record the plaintiff in error had a fair trial. His guilt was abundantly established.

The judgment will be affirmed.

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


source: Caselaw Access Project

author: BESSEY, P. J.

license: Public Domain

text:
    JOE KIRCHNER et al. v. STATE.
    No. A-4579.
    Opinion Filed Feb. 4, 1925.
    (232 Pac. 1118.)
    (Syllabus.)
    Appeal from County Court, Major County; Harry Randall, Judge.
    Joe Kirchner and Ray Baird were convicted of assault and battery, and they appeal.
    Affirmed as to Baird. Modified and affirmed, as to Kirchner.

      Seymour Foose and R. C. Brown, for plaintiffs in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiffs in error, here referred to as the defendants, were convicted of an assault and battery. The punishment of defendant Kirchner was fixed by the court at confinement in the county jail for 30 days and to pay a fine of $25 and costs; the penalty assessed against defendant Baird was a fine of $10 and costs. The defendants say that the evidence was insufficient to support the verdict. The record shows that this prosecution arose out of a mutual juvenile fist fight, in which the two youthful participants, Forest Miller and Raymond Kirchner, were sons of farmers who were enemies of some years standing; that the fight between these two boys took place on the highway near their homes and continued for about 20 minutes. Defendant Ray Baird, as he claims, in the interest of fair play and to avoid bloodshed or serious trouble, came up while the affray was in progress and took a pocket knife away from the Miller boy. Towards the end of the fight the defendant, Joe Kirchner, father of Raymond Kirchner, came near and is said to have encouraged the difficulty, by directing his son’s attacks on the other boy. The Miller boy, who was receiving the more severe punishment, says that Baird held him while the Kirchner boy administered further blows with his fist. Defendant Kirchner, the father, along with the other witness, denied that he participated in the fight by either words or action. From a reading of this record it is impossible to say definitely who was the most to blame. The members of the families on both sides seem to have passively encouraged the difficulty. Evidence tending to show active participation on the part of either defendant is weak. Without a further analysis of the testimony, we think the punishment assessed against defendant Kirchner should be reduced by remitting. the jail sentence. It is therefore ordered that the punishment assessed against defendant Kirchner be modified to a fine of $25 and costs, and that the judgment as to defendant Baird be affirmed.

DOYLE, and EDWARDS, JJ., concur.


author: DOYLE, J.

text:
    JOHN MARTIN v. STATE.
    No. A-4787.
    Opinion Filed Feb. 4, 1925.
    (232 Pac. 966.)
    (Syllabus.)
    1. Intoxicating Liquors — Unlawful Transportation — Evidence Insufficient. In a prosecution for unlawfully conveying intoxicating liquor, evidence considered,. and held insufficient to sustain a conviction.
    ¡Í. Evidence — Attack on Character of Accused Only After He Introduces! Evidence of Good Character. The state cannot attack the character of a defendant unless he first puts that in issue by introducing evidence of his good character.
    3. Same — Issue in • Trial Whether Accused Committed Crime Charged, not Reputation. In the trial of a criminal case the issue is singular and is based upon the question, “Did the defendant commit the crime charged?” and not upon the question, “Has the defendant the reputation of having committed the crime charged, or some similar crime?”
    4. Trial' — Waiver of Rights by Failure to Object to Incompetent Evidence. While the defendant in a criminal prosecution has the right to insist that only competent evidence shall be in-) troduced against him, he may waive the right, and he does waive it by failing to introduce proper and timely objections.
    Appeal from District Court, Ottawa County; J. J. Smith, Judge.
    John Martin was convicted of unlawfully transporting intoxicating liquor, second offense, and he appeals.
    Reversed.
    A. W. Turner, for plaintiff in,error.
    The Attorney General, for the State.
   DOYLE, J.

This appeal is from a judgment of the district court of Ottawa county, rendered on the verdict of a jury finding the defendant, John Martin, guilty of transporting whisky, second offense, and fixing his punishment at imprisonment in the penitentiary for a term of two years and a fine of $100.

The assignments of error relate to rulings of the court in the admission of evidence and the sufficiency of the evidence, taken as a whole, to sustain the verdict.

Sam L. Braeselton testified that he was in the government service as an enforcement officer and was standing on the street when deputy sheriff Jennings came dragging and pulling the defendant along, holding 'both his hands, and asked him to take the bottle of whisky out of Martin’s pocket; that he took a half pint bottle of whisky from the defendant’s person.

U. S. Jennings, deputy sheriff, testified that as he was passing the Woodland Drug Store in Picher, the defendant came out on the porch and he grabbed hold of him and went to search him; that the defendant tried to put his hand in his pocket and he prevented him and asked Mr. Braeselton to take the bottle off of him.

As a witness in his own behalf the defendant, John Martin, testified that as he was coming out of the door of the Woodland Drug Store, Mr. Jennings arrested him and dragged him down to the corner where an officer took a half pint of whisky out of his pocket; that a man in the drug store gave him the bottle to sample it.

In rebuttal, Jennings, deputy sheriff, was recalled and against the defendant’s objections he further testified as follows:

“Q. How long have you known Mr. Martin? A. Well, I guess about four years, or maybe a little longer.
“Q. Mr. Jennings, I will ask you if you are acquainted with the general reputation of Mr. Martin, as to whether it is good or bad as to being a bootlegger or not? A. Yes, sir.
“Q. What is that reputation? A. Well, he is known as a bootlegger. I have arrested him several times.”

After a careful examination of the record, the conclusion of the court,is that the judgment in this case cannot be permitted to stand. It has been repeatedly decided by this court that the fact that an offense has been committed cannot be proven by common rumor or general repute.

It is a fundamental principle of criminal law that the character of a defendant cannot be impeached or attacked by the state unless he puts his character in issue by introducing evidence of good character. Says Bishop:

“Bad character is never admissible in evidence against a defendant as ground for presuming guilt. This doctrine is absolute; thus, the evidence of stealing a horse cannot be reinforced by showing that the defendant is an associate of horse thieves.” 1 Bishop’s New Cr. Proc. par. 1112.

If the defendant elects to testify in his own behalf, he occupies a double position. As a defendant, his character cannot be attacked by the state; as a witness, it can be. The law is that a defendant taking the stand as a witness may, as a witness, be impeached precisely like any other witness. Kirby v. State, 25 Okla. Cr. 330, 220 P. 74, 33 A. L. R. 1212; Morris v. State, 26 Okla. Cr. 399, 224 P. 377; Munson v. State, 23 Okla. Cr. 64, 212 P. 438; Kirk v. State, 11 Okla. Cr. 203, 145 P. 307.

The proof of previous arrests of the defendant was also incompetent. Where a defendant is on trial for a specific offense, evidence of unrelated offenses is not admissible, unless relevant to the issue and tending to show motive or interest; and an unlawful intent is not an ingredient of the offense of unlawfully conveying intoxicating liquors. Proctor v. State, 8 Okla. Cr. 537, 129 P. 77.

Excepting the proof of former conviction, all the evidence introduced by the state was incompetent.

The officers did not have a warrant for the defendant and the evidence was obtained by means of an unlawful search of the person of the defendant, and the taking from his person the bottle was an unreasonable search and seizure made in violation of his constitutional rights. HJowever, no objection was made to the admission of this incompetent evidence. If counsel for the defendant had interposed proper objections, it is fair to presume that they would have been sustained by the court. While the defendant had the right to insist that only competent evidence should be introduced against him, yet he may waive the right, and does waive it by a failure to interpose proper objections.

The allegation of conveyance is from some place unknown to a place near the front door of the Woodland Drug Store, in the city of Picher. The defendant testified that he got the whisky in the drug store.

The offense, as defined by the statute, is “to ship or in any way convey such liquor from one place within this state to another place therein.” Comp. Stats. 1921, § 7002. Under the statute, a conveyance from place to place must be shown. The evidence in this case is clearly insufficient to show such a conveyance.

For the errors pointed out, the judgment of the district court is reversed.

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


author: EDIWARDS, J.

text:
    WILL JACOBS v. STATE.
    No. A-4814.
    Opinion Filed Feb. 4, 1925.
    (232 Pac. 861.)
    (Syllabus.)
    Continuance — Time of Trial When Arraignment for Misdemeanor Waived and! Plea Entered. In a misdemeanor case, when arraignment is waived and plea entered, the case it at issue, and stands for trial, unless it ,be made to appear to the court that the defendant requires time to prepare his defense.
    Appeal from County Court, Muskogee County; W. W. Cotton, Judge.
    Will Jacobs was convicted of transporting intoxicating liquors, and he appeals.
    Affirmed.
    W. W. Momyer, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   EDIWARDS, J.

The only question raised by plaintiff in error in his brief is that he was not allowed sufficient time to prepare for trial. The information was filed on the 11th day of June, 1923’. On the 25th day of June the plaintiff in error and his codefendant appeared in the county court, waived formal arraignment, and entered pleas of not guilty, both being represented by attorney, and made a request for a severance which was denied. A motion was filed to strike the case from the trial calendar in the following language:

“Comes now the defendants herein and moves this honorable court to strike this the above-styled cause from this setting, for the reason that said cause was set for trial before the expiration of ten days after the issue was joined; that said defendants have not had sufficient time to prepare for trial.”

The motion was overruled, the case tried, and the plaintiff in error convicted, and his codefendant was acquitted. In the motion for a new trial the following is assigned as error:

“(1) The court erred in not sustaining motion of said defendant to strike said cause from the present setting.” , ; j4[

The only complaint presented is that the court erred in proceeding with the trial of the case after plea of not guilty on June 25th, and the attention of the court is called to the cases of Noel v. State, 17 Okla. Cr. 308, 188 P. 688, and Westbrook v. State, 14 Okla. Cr. 423, 172 P. 464. These were all felony cases in which the death penalty had been assessed. The same strictness in pleading does not obtain in a misdemeanor case.

In Westbrook v. State, supra, it was said:

“* * * No felony case should be set over the objection of the defendant within ten days after his plea is entered.”

The question here is:

“'Where no showing is made of inability to be ready is it reversible error to put a defendant in a misdemeanor case on trial within ten days from date of plea?”

When the plea was entered the issue was made, and we do not perceive why the case might not be at once assigned for trial. If the time assigned for trial is too short to enable a defendant to present his defense, he should make that fact known to the court by an application for a continuance, setting out the facts. It would be an abuse of discretion for a trial court to deny a defendant under such circumstances time to prepare his defense if a proper showing is made. Where such is not done, it is not reversible error on the part of a trial court in a misdemeanor case to at once assign the same for trial.

The judgment is affirmed.

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


text:
    SID LUMPKINS et al. v. STATE.
    No. A-4602.
    Opinion Filed Feb. 4, 1925.
    (232 Pac. 855.)
    (Syllabus.)
    Larceny — Evidence Sufficient as to One Defendant, and Insufficient as to Other. In a prosecution for larceny, evidence held sufficient to sustain conviction as to one defendant, and insufficient as to the other.
    Appeal from District Court, Stephens County; Cham Jones, Judge.
    Sid Lumpkins and Bill Cantrell were convicted of larceny, and they appeal.
    Affirmed as to Lumpkins; reversed as to Cantrell.
    Carr & Henderson, for plaintiffs in error.
    The Attorney General, for the State.
   DOYLE, J.

The plaintiffs in error in this case were jointly tried under an information charging them with the theft of an engine of the value of $3.00, the personal property of Montgomery, Shaffer & Montgomery, and the jury convicted them, fixing the punishment of the defendant Lumpkins at imprisonment in the penitentiary for a term of one year, and of the defendant Cantrell at imprisonment in the penitentiary for a term of six months. From the judgments rendered on the verdicts they have appealed to this court, but no briefs in support of the assignments of error have been filed.

While the defendants are not represented in this court, we have carefully gone through the record.

The undisputed facts are that, on the date alleged, an engine owned by Montgomery, Shaffer & Montgomery, was taken from their lease in Stephens county; it was hauled to Konawa by the defendant Cantrell on his truck; that Dr. C. H. Heilman purchased the engine from the defendant, Lumpkins, to be delivered on his lease near Konawa.

The defense urged by the defendant Lumpkins was that he had authority from a man named Brown to sell the engine for $200 and he ypas to receive a commission of $25; he testified that he told Brown that Dr. Hellman wanted to buy a secondhand engine, but would not pay over $200; that Brown said he and Joe Anderson, his partner, would sell and give a bill of sale of the engine; that they would hire Bill Cantrell to haul the engine to Konawa; that he went out on 'Cantrell’s truck, and Brown and two other fellows followed in a Buiek car; that they disconnected and loaded the engine; that he went with Cantrell on the truck to Konawa; that when they got there Mr. Osmun, acting for Dr. Heilman, said he thought $100 was too much to charge for hauling the engine; witness called Dr. Heilman over the phone, and the doctor told him he would arrange that when they returned; that when they returnel to Duncan both were arrested.

As a witness in his own behalf, the defendant Cantrell testified that Sid Lumpkins told him that he had bought an engine for Dr. Heilman, and wanted him to haul it; that he went into the supply house and found that the engine weighed 4,000 pounds; that he came back and Lumpkins said that he had an order from Dr. Heilman authorizing Mr. Osmun to pay for the drayage; that he agreed to haul it, and drove out to the lease with Lumpkins; three other men were there and they loaded the engine on the truck and he hauled it over to Konawa, and Lumpkins went with him; that when it was unloaded Mr. Osmun asked him what the drayage was, and he told him that he was supposed to get $100; that his truck registered 110 miles; that he did not receive his pay, and when he returned to Duncan was arrested; that Lump-kins said that he was to receive $25 for selling the engine ; that he was never before arrested.

As to the defendant Lumpkins, the verdict has ample support, and the record presents no error. As to the defendant Cantrell, we cannot say that the evidence is sufficient to sustain his conviction. No witness for the state connects him with the transactions leading up to the taking of the engine; his claim that he was acting in good faith, under the direction of his codefendant is not disputed, and it was not shown that he had personal knowledge as to the ownership of the engine. It also appears that the trial judge expressed a doubt as to the sufficiency of the evidence to support the verdict against this defendant.

After a careful examination of the record, we conclude that the evidence is insufficient to support the verdict and judgment of conviction against the defendant Bill Cantrell. The judgment as to him is accordingly reversed.

In our opinion the evidence on the part of the state was amply sufficient to sustain the verdict against the defendant Sid Lumpkins, and finding no prejudicial error, the judgment is affirmed.

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


author: EDWARDS, J.

text:
    GEORGE GREEN v. STATE.
    No. A-4815.
    Opinion Filed Feb. 7, 1925.
    (232 Pac. 853.)
    (Syllabus.)
    1. Continuance — Application on Ground of Absence of Witness— ¡Necessary Showing. An application for a continuance on account of the absence of a witness should show the place of residence of the witness, the probability of procuring his attendance upon the court if the case be continued, and that due diligence has been used to secure his attendance, and that his testimony cannot be obtained from any other source. Such application is to be construed most strongly against the pleader.
    2. Same — Refusal of Continuance Held not Abuse of Discretion. The application for a continuance in' this case examined, and no abuse of discretion is shown in overruling the same.
    3. Trial — Refusing Instruction on Circumstantial Evidence, When not Error. It is not error to refuse a requested instruction on circumstantial evidence, unless the case is wholly circumstantial.
    Appeal from County Court, Woodward County; H. B. King, Judge.
    George Green was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    L. F. Robertson, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, with three other persons, on the 10th day of June, 1922, in a Ford car, which was the property of plaintiff in error, drove to the town of Mooreland and went into a cafe and ordered a meal. The plaintiff in error and one other of the party named Lawson were drunk and noisy. The proprietor of the cafe called an officer to quiet them. The officer arrested them, and started to search Lawson, when the plaintiff in error, Green, ran, got in his car, and went west. After going a quarter of a mile, the car ran into a sand bank and stalled. When the officers came up to him, he (Green) pointed a pistol at one of them and snapped it. Both whisky and wine were found in the car. The two persons in the car and in the restaurant, it developed, had merely sought a ride and were not intoxicated, and were acquitted. Lawson, the other member of the party beside plaintiff in error, pleaded guilty.

The plaintiff in error, upon the calling of the case for trial, made an application for a continuance, setting out that Lawson was absent. That plaintiff in error had been •unable to locate him; that he had left the country and his whereabouts was unknown; that plaintiff in error believed he would be able to locate him by the next term of court; and that the absent witness had made an affidavit in a habeas corpus case of plaintiff in error, which by reference was incorporated in the application.

This is the sum and substance of the application for continuance. There was no abuse of discretion on the part of the trial court in overruling this application. Pugh v. State, 6 Okla. Cr. 578, 120 P. 296; Rhea v. State, 3 Okla. Cr. 230, 105 P. 314; Davis v. State, 10 Okla. Cr. 169, 135 P. 439; Musgraves v. State, 3 Okla. Cr. 421, 106 P. 544; Boswell v. State, 8 Okla. Cr. 152, 126 P. 826.

It is next contended that the court erred in refusing plaintiff in error’s request for an instruction on circumstantial evidence. We think the evidence is not wholly circumstantial. The plaintiff in error admitted the ownership of the car that he was driving; admitted that he was intoxicated, and flight from the restaurant and altercation with the officer. The finding of the wine and whisky in the car is not denied.

Where the evidence is not wholly circumstantial, an instruction on this class of evidence is not necessary. Star v. State, 9 Okla. Cr. 210, 131 P. 542.

The cause is affirmed.

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


text:
    W. R. ROBERTS v. STATE.
    No. A-4626.
    Opinion Filed Feb. 7, 1925.
    (232 Pac. 861.)
    (Syllabus.)
    1. Intoxicating Liquors — Instruction on Prima Facie Evidence Held Error. An instruction on prima facie evidence of guilt examined and condemned.
    2. Same — Unlawful Possession — Presumptions and Burden of Proof. A conviction for a violation of tbe prohibitory law cannot bé sustained upon a presumption alone. Along with the presumption of the possession being illegal, the jury must consider the presumption of innocence, and the state must assume the burden of proof on the issues as a whole.
    Appeal from County Court, Texas County; Geo. M. Frittz, Judge.
    W. R. Roberts was convicted of illegal possession of intoxicating liquor, and he appeals.
    Reversed and remanded.
    Ross Rizley, for plaintiff in. error.
    The Attorney General, for the State.
   BESSEY, P. J.

W. R. Roberts was convicted in the county court of Texas county of the offense of having illegal possession of six gallons of whisky. The whisky was found by peace officers buried in the sand at different places along a fence near , the home of the accused. Roberts claimed it was placed there by a man who was transporting liquor to Guymon and who said he was having automobile trouble and was afraid to carry it further. Roberts refused to grant him permission to leave the liquor on his premises, and assumed that the liquor found by the officers was hidden there by this man after he had refused him such permission, and without his knowledge or consent. Whether Roberts’ story in this regard was worthy of credence was a question of fact for the jury. By their verdict it is apparent that they decided this issue of fact against him.

Roberts claims in this appeal that this was probably due to erroneous instructions given by the court, particularly instruction No. 5, which reads as follows:

“You are further instructed that the possession as heretofore defined in these instructions of a quantity of intoxicating liquors in excess of one gallon is prima face evidence on the part of the person having possession of the same of an unlawful intent to violate the prohibitory laws of the state of Oklahoma.
“You are further instructed that prima facie evidence is such evidence as in the judgment of the law is sufficient to establish the fact, and if not rebutted remains sufficient for that purpose.”

Instructions of this character have heretofore been condemned by this court. Wilson v. State, 11 Okla. Cr. 510, 148 P. 823; Sellers v. State, 11 Okla. Cr. 588, 149 P. 1071; Beal v. State, 12 Okla. Cr. 157, 152 P. 808; Huff v. State, 12 Okla. Cr. 138, 152 P. 464; Langham v. State, 25 Okla. Cr. 33, 218 P. 897.

Possession of more than one' gallon of whisky amounts to no more than a presumption that the possessor has it for an illegal purpose. Along with that presumption must be considered the presumption of innocence, so that the jury are required to take into consideration both presumptions, along with all other evidential facts tending to establish guilt, or in rebuttal thereof. A conviction for a violation of the prohibitory law cannot rest wholly upon a presumption. By this instruction the jury were advised that, if they found that Roberts had this liquor in his possession, unless it was shown by defendant that his possession was not unlawful, they should find him guilty. In effect, this instruction shifted the burden of proof to the accused, which is error.

This was a special instruction, the vice of which was not cured by the general instruction which followed it, upon the subject of reasonable doubt. The other assignments of error need not be noticed.

For the errors pointed out in these instructions, the cause is reversed and remanded.

DOYLE and EDWARDS, JJ., concur.


text:
    NICK SANTINO v. STATE.
    No. A-4528.
    Opinion Filed Feb. 7, 1925.
    (232 Pac. 859.)
    (Syllabus.)
    1. Punishment — Statute Fixing Same Minimum Punishment as Constitution, and Providing Maximum Punishment Valid. Section 3, chapter 26, Session Laws .1013 (section 6996-7, Compiled St. 1921) i's not in conflict with the state Constitution prohibiting the manufacture, sale, etc., of intoxicating liquor.
    2. Shane — Constitutional Provision of Minimum Punishment for Violation of Liquor Laws not Depriving Legislature of Power to Make Violation Felony. The provisions of the prohibitory liquor laws in' the state Constitution, fixing a minimum punishment at not less than 30 days imprisonment and not less than a fine of $50.00, does not deprive the Legislature of power to make a violation of said law a felony, so long as the act of the Legislature conforms to the minimum punishment fixed by the Constitution and is not otherwise objectionable.
    3, indictment and Information — Exact Words of Statute Defining Crime Need not be Used. The exact words of the statute defining a crime need not ¡be used in an indictment or information charging it, but any words- clearly and intelligently setting forth the offense are sufficient.
    4. Same — ¡Unnecessary to Charge that Sale of Liquor to Minor Was with Felonious Intent. In charging the commission of a crime for the sale of intoxicating liquor to a minor it is not necessary to charge that the sale was made with a felonious intent. '
    Appeal from District Court, Pittsburg County; Harve L. Melton, Judge.
    Nick Santino was convicted of selling liquor to a minor, and he appeals.
    Affirmed.
    Counts & Counts, for plaintiff in error.
    George F. Short. Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The evidence disclosed that the plaintiff in error sold whisky to Bob Bonnett and three other young men, all under 21 years of age. The plaintiff in error makes assignments as follows: That the information does not state an offense for the reason that the law under which it is drawn is unconstitutional, and, if constitutional, the information is deficient in not charging that the acts were “feloniously” done'; that the court erred in its charge; that the evidence is insufficient on the question of proof of the age of the person to whom it was alleged the whisky was sold.

As to the constitutionality of the law, being section 3, chapter 26, Session Laws of 1913 (section 6996-7, Compiled St. 1921), the plaintiff in error contends that this act is in conflict with the prohibitory provisions of the state Constitution. This court, in the case of Nowakowski v. State, 6 Okla. Cr. 123, 116 Pac. 351, held that sections 4210 and 42511 of the Comp. Laws of 1909, were unconstitutional, being in conflict with the provision of the state Constitution fixing a minimum punishment, but expressly held therein that the Legislature had power to fix a maximum punishment.

Chapter 26, House Bill 46, of the Session Laws of 1913 (¡section 6996-7, Compiled St. 1921), on which this prosecution is based, meets the conditions suggested by the Nowakowski Case, supra. It will be noted that this latter act is not in conflict with the Constitution, but provides the same minimum punishment as the Constitution and fixes a maximum punishment. This the Legislature had the right to do, and the act is not for that reason unconstitutional.

In holding this act to be constitutional, we are not unmindful of the decision of this court in the case of Ex parte Smith, 24 Okla. Cr. 415, 218 P. 708, in which the court held unconstitutional chapter 1 of the Session Laws of 1923, being an act relating to stills, distilleries, etc. Although section 3 of the syllabus of said decision might be interpreted as a holding that the prohibitory liquor law section of the Constitution made the violation thereof a misdemeanor, and the Legislature without power to make such a violation a felony. The part of the constitutional provision prohibiting the sale of intoxicating liquor is self-executing, and, prior to any legislative enactment in aid of such constitutional provision, a misdemeanor. State v. Hooker, 22 Okla. 712, 98 P. 964; Ex parte Cain, 1 Okla. Cr. 7, 93 P. 974.

But in the case of Nowakowski v. State, supra, this court, speaking by Kichardson, Special Judge, said:

■ “If our Constitution was silent upon the liquor question, or merely forbade its sale without prescribing' any punishment therefor, certainly the Legislature, its authority extending ‘to all rightful subjects of legislation,’ would have power to make the sale of liquor a felony; and, that being true, why would a constitutional provision, which forbids the sale of liquor and fixes the minimum but not the maximum punishment therefor, prevent the Legislature from declaring the offense a felony? An enactment of that character may be so drawn as not to take from the Constitution one item or term contained therein, as not to authorize one thing which the Constitution forbids, or remit any of the punishment which the Constitution imposes; and, should it be so framed, then we fail to perceive wherein it would violate the Constitution. That instrument avowedly fixes only the minimum punishment for the offense, leaving the power to fix the maximum punishment limited only by the provision that such punishment must not be cruel or unusual.
“Certainly, if our Constitution had fixed the maximum, as it has fixed the minimum, punishment for this offense, the Legislature would have no more power to change such maximum punishment than it now has to change the minimum punishment so fixed; but, the Constitution not having declared the maximum punishment, it is within the power of the Legislature to declare the ¡same; and assuredly the solicitude which the state ought ito feel for the welfare of its future citizenship is ample warrant for making felonious the furnishing of intoxicating liquors to a minor.”

We hold, therefore, that the Legislature had the power to declare and make the sale of intoxicating liquor to a minor a felony so long as the minimum punishment is that fixed by the Constitution and the .maximum is not so unreasonable as to fall within any other inhibition of the Constitution.

The charging part of the information in this case is as follows: .

“* * * that Nick Santino did, in Pittsburg county, state of Oklahoma, on or about the 11th day of February in the year of our Lord, one thousand, nine hundred and twenty-two, and anterior to the presentment hereof, then and there willfully, wrongfully, and unlawfully sell certain intoxicating liquor, to wit: about one quart of whisky to one Bob Bonnett, the said Bob Bonnett being then and there under the age of 21 years, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the state.”

The plaintiff in error argues that as it is not charged that the plaintiff in error acted “feloniously,” that the information is insufficient, citing Dick v. State, 10 Okla. Cr. 497, 139 P. 322, and Wright v. United States, 18 Okla. 510, 90 P. 732, 11 Ann. Cas. 995.

This court has held that an indictment or information charging a crime need not use the exact words of the statute in defining such crime. Castleberry v. State, 10 Okla. Cr. 504, 139 P. 132. The intent with which an act is committed is not material unless the statute defining the crime makes the intent with which the act is done an ingredient of the crime. The Legislature may forbid the doing of an act and make its commission criminal without regard to the intent of the doer, and when a person sells whisky it is a crime regardless of his intent. Lightle v. State, 5 Okla. Cr. 259, 114 P. 275. It is not essential to allege the sale was made with felonious intent. U. S. v. Staats, 49 U. S. (8 How.) 41, 12 L. Ed. 979; State v. Murphy, 17 R. I. 698, 24 A. 473, 16 L. R. A. 550.

While the plaintiff in error in his assignment states that the evidence is insufficient, only one point is suggested in support of that assignment, that is ¡that the evidence of the age of Bob Bonnett, to whom the sale was charged to have been made, was not sufficiently definite. The mother of this witness testified at the time of the trial that he would not be 21 >until the 12th of the following month. The evidence is sufficient on that point. The plaintiff in error'admits he had twice been convicted for selling intoxicating liquor.

The plaintiff in error further contends that the court erred in its instruction to the jury number 5. This instruction tells the jurjr that “agency” has no application in a criminal case, and where one aids in the commission of a crime he is guilty as a principal. The .principle of law stated is correct. No exceptions or objections were made at the time the instruction was given. While the instruction is not applicable to the evidence, we fail to see how it would be prejudicial to the plaintiff in error, and is not reversible error under the record in this case. Fooshee v. State, 3 Okla. Cr. 666, 108 P. 554.

The case is affirmed.

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


author: BESSEY,' P. J.

text:
    JIM LOCKHART v. STATE.
    No. A-4583.
    Opinion Filed Feb. 7, 1925.
    (232 Pac. 857.)
    (Syllabus.)
    Trial — When Duty of Court on Own Motion to Instruct on Corroboration of Accomplice. Where the corroboration of the testimony of an accomplice is the pivotal' issue of fact, and where the corroborating testimony is of an indefinite character, and not inconsistent with the innocence of the accused, the court should on his own motion, without request, instruct the jury upon that issue.
    Appeal from District Court, Canadian County; James I. Phelps, Judge.
    Jim Lockhart was 'Convicted of larceny, and he appeals.
    Reversed and remanded.

      E. T. Barbour and E. J. Giddings, for plaintiff in error.
    The Attorney General and Baxter Taylor, Asst. Atty. Gen., for the State.
   BESSEY,' P. J.

Jim Lockhart was convicted of the larceny of a calf, with his punishment fixed at confinement in the penitentiary for a term of two1 years. The conviction rests almost entirely upon the testimony of a self-confessed accomplice, who also admitted upon the trial that he had once before been convicted of larceny. This accomplice, one Overstreet, said Lockhart helped him capture the calf, and assisted him in butchering the animal, and that he told Lockhart that the animal belonged to a neighbor.

The story told by the accomplice, Overstreet, is conflicting in many particulars, and the corroboration, if indeed there was corroboration, consisted of declarations and explanations made by Lockhart, who admitted that he assisted Overstreet in butchering the calf, but claimed that he did so in good faith and not knowing that it was stolen. This corroboration, if such it is, is not inconsistent with Lockhart’s claim of innocence.

The statutes of this state, section 2701, Comp. Stat. 1921, define the character of corroboration necessary to a conviction as follows:

“A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

The court did not instruct the jury upon the necessity for corroboration of an accomplice’s testimony, nor upon the character of testimony necessary for such corroboration. Under circumstances like those in this cape, where the testimony tending to corroborate, if any, is of a nebulous, indefinite character, not inconsistent with the innocence of the accused, the court should of his own motion and without request instruct the jury upon that point. The matter of corroboration was the pivotal point in this case, and one that the jury might not consider unless it was specifically pointed out in the instructions. Souther v. State, 12 Okla. Cr. 195, 153 P. 293; Weems v. State, 16 Okla. Cr. 198, 182 P. 264; Collegenia v. State, 9 Okla. Cr. 425, 132 P. 375.

For this reason, and because the equivocal evidence pointing to the culpable participation of the accused is speculative and not inconsistent with his innocence, the cause is reversed and remanded for a new trial.

DOYLE and EDWARDS, JJ., concur.


text:
    Ex parte EVELYN PYZER.
    No. A-5412.
    Opinion Filed Feb. 10, 1925.
    (232 Pac. 962.)
    (Syllabus.)
    1. Habeas Corpus — When Issue that Offender Was Over 16 Years Old, Remains Opeqi for Court of Criminal Appeals. If the record in a felony case in the district (or superior) court fails to affirmatively disclose that an issue o£> fact was tried and determined, finding that the offender was over the age of 16 years, that issue remains open for this court to determine in a habeas corpus proceeding.
    2. Infants — Child Under Age of 16 — Necessary Showing of Criminal Responsibility. A child under the age of 16 years cannot be guilty of the commission of a crime except in cases where it it is shown by the findings of a juvenile court that the child knew the wrongfulness of the act charged.

      On application of Evelyn Pyzer for writ of habeas corpus.
    Writ allowed.
    Wright & Gill, for petitioner.
    The Attorney General, for the State.
   BESSEY, P. J.

From a preponderance of the evidence adduced in support of the petition of Evelyn Py-zer for a writ of habeas corpus it now appears that the petitioner, at the time she entered her plea of guilty to a charge of felonious assault in the superior court of Pottawatomie county and at the time of the rendition of judgment thereon, July 27, 1923, was a delinquent child under the age of 16 years.

The evidence discloses that petitioner, with a girl companion, without the knowledge or consent of her parents, left her home in Oklahoma City about July 25, 1923, and in a spirit of romance and adventure joined two young men who were traveling together in a Ford car in Pottawatomie county and that a quarrel there ensued in which petitioner’s male companion, who was driving the car, was assaulted with an automobile jack. For this assault the petitioner and the other occupants of the car were arrested, and they all three entered their pleas of guilty to the charge preferred against them. On July 27, 1923, upon petitioner’s plea of guilty, the court forthwith rendered judgment accordingly, assessing her punishment at confinement in the state penitentiary for a term of 10 years; and petitioner has since been incarcerated in the penitentiary at McAlester under this judgment and commitment issued thereon.

At the trial petitioner was not represented by either parent or by counsel, and this court is convinced that upon the perfunctory investigation made she did not know or fully comprehend the import of the accusation or the consequences of her plea of guilty. It now appears also that she may not have participated in the assault, but that on the contrary she did what she could to prevent it.

This case demonstrates the wisdom of the provisions of our juvenile statutes requiring, as a condition precedent to the prosecution for crime of persons under the age of 16 years, that a separate preliminary investigation be had in the juvenile court. In re Powell, 6 Okla. Cr. 495, 120 P.. 1022.

It was said in Ex parte Hightower, 13 Okla. Cr. 472, 165 P. 624:

“By numerous decisions of this court it is held that the jurisdiction of a court or judge to render a particular judgment or sentence by which a person is imprisoned is a proper subject of inquiry on habeas corpus, and where it is shown by the return that the petitioner is detained by virtue of a commitment issued upon a judgment of a court of competent jurisdiction, such showing is prima facie only of the fact,” etc.

In the case of Ex parte Parnell, 19 Okla. Cr. 273, 200 P. 456, this court held that a child under the age of 16 years cannot be guilty of the commission of a crime except in cases where it is shown by the findings of -a juvenile court that the child knew the wrongfulness of the act charged. And a juvenile offender is incapable, by waiver or consent, of transferring the jurisdiction of his person or of the offense from the juvenile court to the district court.

In the Parnell Case, supra, it was held further:

“If the record in a felony case in the district court fails to affirmatively disclose that an issue of fact was tried and determined, finding that the - offender was over the age of 16 years, that issue remains open for this court to determine in a habeas corpus proceeding. Whatever presumptions there may have been that the district court had jurisdiction are, under such circumstances, re-buttable presumptions.”

For the reasons stated, this court holds that this conviction was not in accordance with due process of law and is void. It is therefore held that the petitioner is entitled to be discharged from the imprisonment of which she complains; and said petitioner, Evelyn Pyzer, is by the judgment of this court ordered discharged therefrom.

DOYLE and EDWARDS, JJ., concur.


author: PER CURIAM.

text:
    H. J. MURPHY v. STATE.
    No. A-4804.
    Opinion Filed Feb. 12, 1925.
    (232 Pac. 1118.)
    Appeal from County Court, Washington County; Robert D. Waddill, Judge.
    Order that proceedings abate.
    'Campbell & Ray, for petitioner.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, H. J. Murphy, was convicted upon a charge that he did unlawfully have possession of intoxicating liquor with intent to sell the same, and in accordance with the verdict of the jury was sentenced to be confined in the county jail for 90 days and pay a fine of $250. To reverse the judgment an appeal was perfected, by filing in this court on August 11, 1923, a petition in error with case-made. When the case was called for final submission, January 21, .1925, his death was suggested. It is therefore adjudged and ordered that the proceedings in this cause do abate, and the same is remanded, with direction to the trial court to enter its appropriate order to that effect.


text:
    JOHN TAYLOR v. STATE.
    No. A-4808.
    Opinion Filed Feb. 12, 1925.
    (232 Pac. 963.)
    (Syllabus.)
    1. Adultery — Injured Spouse Refusing to Prosecute — Dismissal. In a prosecution for adultery, the fact that the injured spouse, who instituted the prosecution, subsequently relents and refuses to carry on the prosecution requires a dismissal of the ease.
    2. Same — Dismissal When Injured Spouse Files Affidavit Praying that Prosecution Be Dismissed. The statute provides that: “Prosecution for adultery can be commenced and carried on against either of the parties to the crime only by his or her own husband or wife, as the case may be, of by the husband) or wife of the other party to the crime.” Comp. Stats. T921, § 1852. Held, that the requirements are mandatory, and a prosecution for adultery, commenced' on complaint of an injured spouse, should be dismissed when he or she .files an affidavit stating that the offense has been condoned, and praying that the prosecution be dismissed.
    Appeal from District Court, Bryan County; Porter Newman, Judge.
    John Taylor was convicted of adultery, and he appeals.
    Reversed and remanded, with directions.
    Hatchett & Ferguson, for plaintiff in error.
    George F. .Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that the defendants, John Taylor and Ruby Allen, on the 4th day of January, 1923, in Bryan county, committed the crime of adultery by having voluntary sexual intercourse with each other, “said Ruby Allen then and there being a married woman and the wife of John Allen.”

Many, errors are assigned, but, with the view we take of one, it is neither important nor necessary to discuss the others. It appears that the original complaint in this case was sworn to by John Allen, husband of Ruby Allen; that defendants waived preliminary examination, and were held to the district court;, that after the im formation was filed, and before the case was called for trial, the prosecuting, witness filed an affidavit in which he says that he is now living with the said Ruby Allen as her husband, and praying that the prosecution be dismissed.

A severance was granted, and on his trial the defendant, John Taylor, was by the jury found guilty, and his punishment fixed at imprisonment in the penitentiary for the term of one year. He appeals from the judgment rendered on the verdict.

The Attorney General concedes that the conviction should be reversed, on the ground that the record shows that the prosecuting witness refused to carry on the prosecution, and did not appear as a witness on the trial of the case. There is much conflict of authority as to the right of an injured spouse to discontinue a prosecution for adultery which he or she has instituted.

In the case of State v. Astin, 101 Wash. 336, 180 P. 394, 4 A. L. R. 1335, it was held that:

“The wronged spouse cannot, under a statute providing that no prosecution for adultery can be instituted except by his or her complaint, discontinue a prosecution once begun” — citing State v. Leek, 152 Iowa, 12, 130 N. W. 1062.

This holding was upon the theory that, while adultery is an offense against the injured party, and primarily a private concern, after the complaint is filed, it is no longer a matter of private concern, but has partaken of all the attributes of a public offense, relieving the injured spouse of further right to control the proceedings by repenting and demanding a dismissal. Chief Justice Chadwick wrote a dissenting opinion, and after reviewing the authorities said:

“In any event, it should be held that the dismissal of a charge of adultery on the request of an injured spouse is a matter within the discretion of the trial court. The writer of the majority opinion falls into most grievous error when he says: ‘The case, after the complaint is filed, is no longer a matter of private concern, but has partaken of all the attributes of a public offense, and the injured spouse should have no more right to control the future disposition of the case than should the complaining witness in any other criminal action.’
“The premise is wrong in that it gives to adultery the status of a crime at common law. It is made so only by statute, and a prosecution is put in the keeping of the injured spouse. A charge of adultery never ceases to be a matter of private concern. It is so far removed from the ordinary crime that no cases hold that the information must charge that the act was either unlawful, willful, or felonious. The statute does not make the exception that the majority makes, nor does it put a limitation upon the right of the injured spouse to save to himself or herself the embarrassment incident to a prosecution, which is the purpose of the law, at any stage of the case. The law does not say that we may! depart from the spirit of the law, and hold a forgiving spouse to a prosecution that must, from the very fact of the publishing of the details of the crime in open court, tend most strongly to a final disruption of the home; and miost certainly to the shame of innocent children, if there be any children. If the law does not say that case must be continued, why should we? And to what end must it proceed — that a prosecutor may dangle a scalp at his belt; that the public may feed upon the blood that flows from broken hearts; that an offense that is personal (State v. La Bounty, 64 Wash. 415, 116 Pac. 1073) may, by a killing of the spirit of the law, become a, written monument to blazen those errors that come of the frailties and weaknesses that our Mother Nature has burdened her children with? If the injured one is willing to forgive and forget, the law — there being no public interest in the crime charged — should not be less merciful. A charge may be forgotten, but the hurts and wounds that follow a public trial are rarely healed.”

In Michigan it was held that the injured spouse may terminate a prosecution for adultery which he or she has instituted. Hosford v. Gratiot, Circuit Judge, 120 Mich. 302, 88 N. W. 627. In People v. Dalrymple, 55 Mich. 519, 22 N. W. 20, where a wife instituted a prosecution for adultery pursuant to a statute limiting such right to an injured spouse, and subsequently asked that the cause be discontinued, it was held that a conviction to which the prosecuting attorney had pressed the case “must be set aside”; Cooley, C. J., saying:

“Perhaps the letter of the statute was not disregarded in this action, but its spirit was.”

Our Criminal Code provides that:

“Prosecution for adultery can be commenced and carried on against either of the parties to the crime only by his or her own husband or wife, as the case may be, or by the husband or wife of the other party to the crime.” Section 1852, Comp. Stats. 1921.

In Stone v. State, 12 Okla. Cr. 313, 155 P. 701, it is said:

“The apparent intention of the Legislature as to this offense being that if the parties injured wish to condone the wrong done, then no one else ought to be allowed to move in the matter; and, where there are two persons injured, either may complain, as, where the guilty parties are both married, the husband of the one or the wife of the other may make the complaint against either or both of the parties to the crime.”

In Kitchens v. State, 10 Okla. Cr. 603, 140 P. 619, it is said:

“That such complaint has not been made may operate to withhold authority to prosecute or punish, but this does not affect the question of the actual guilt of the offending parties. The requirement is founded partly on principles of public policy which lie at the basis of civil society. If the parties injured choose to condone the wrong done, then no one else ought to be allowed to move in the matter.”

In Lee et al. v. State, 28 Okla. Cr. 397, 231 P. 324, it is said:

“The use of the words ‘and carried on’ was doubtless for the purpose of giving relief to the parties most interested after the offense has been condoned, and a reconciliation in good faith has taken place before the time of the trial. * * * If, after the prosecution has been commenced, the offense has been condoned by the injured party, it may be to the best interests of the parties, as well as to the interest of society, that the prosecution be discontinued, and we believe that it was the purpose of the Legislature to provide for such a contingency when this statute was enacted.”

Under the provision of the statute above cited, the procedure governing this particular offense is differentiated from the procedure in criminal actions generally, and it provides an exception to the common-law rule that neither husband or wife can be a witness against the other in prosecutions for adultery (2 Whart. Cr. Law [10th Ed.] 1763) ; and to the statute providing that neither husband nor wife shall in no event on a criminal trial be permitted to disclose communications made by one to the other, except on a trial for an offense committed by one against the other (Comp. Stats. 1921, § 2699; Heacock v. State, 4 Okla. Cr. 606, 112 P. 949).

Evidently the Legislature intended to place a limitation upon prosecutions for this offense, and to take the procedure out of the operation of the general criminal law. The Legislature had full power to deal with the subject, and, evidently regarding the commission of this particular act as an offense against the husband or wife personally, rather than as an offense against society, provided that prosecution could be commenced and carried on only by the injured spouse, leaving the injured spouse at liberty to condone the offense if he or she desired so to do, unembarrassed by the publicity incident to a pros-eeution commenced and carried on by the officers of the state. The Legislature no doubt deemed it wise public policy to take this duty or privilege from the prosecuting attorney and confer it upon the injured spouse, and upon questions of public policy its will is supreme.

On the record before us we are convinced that both the letter and the spirit of the statute was disregarded in carrying on the prosecution in this case, after the prosecuting witness condoned the offense and refused to carry on the prosecution as required by the statute.

For the reasons stated, the judgment of the district court is reversed and the case remanded, with direction to dismiss.

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


text:
    J. E. SHAVER v. STATE.
    No. A-4855.
    Opinion Filed Feb. 12, 1925.

      (232 Pac. 960.)
    (Syllabus.)
    Intoxicating Liquors — Conviction for Selling Liquor not Sustained. In a prosecution for selling intoxicating liquor, evidence beld insufficient to warrant a conviction.
    Appeal from County Court, Garfield County; E. L. Swigert, Judge.
    J. E. Shaver was convicted of selling intoxicating liquor, and he appeals.
    Reversed and remanded.
    W. E. Crowe and Robertson & Harmon, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that the defendant, J. E. Shaver, did unlawfully sell one-half pint of corn whisky to one Albert Thorlton. Upon his trial the jury returned a verdict finding him guilty and assessed his punishment at confinement in the county jail for 30 days and a fine of $50. From the judgment rendered on the verdict he appeals.

We adopt the confession of error as the opinion of the court. It is as follows:

“Numerous assignments of error are presented by counsel for plaintiff in error in their behalf; the first one being the introduction of incompetent, immaterial, and irrelevant testimony over the objections of the plaintiff in error by defendant in error.
“The second assignment of error complains of the action of the court in making certain remarks in the presence of the jury concerning the attorney for plaintiff in error and his actions and then refusing to restate the remarks to the court reporter in order to get them in the record and thereby enable counsel to take his exceptions and make his record.
“The other assignments of error all go to the introduction of incompetent, irrelevant, and immaterial testimony at different stages of the trial.
“We have read this record very carefully, and then for fear that we might be mistaken, we have read it the second time, and while this statement could not be literally true, yet there is scarcely a page of the record that does not disclose the rankest kind of prejudicial error. The trial was a farce, and the bulk of the .testimony introduced by the state tended only to prove or to attempt to prove that the plaintiff in error’s wife, who was not on trial, had in her possession half a pint of Canadian Club whisky with the unlawful intent to sell or dispose of same in violation of the law. We think that it is highly probable that if the state had only introduced such evidence as was applicable to the alleged sale by the plaintiff in error to the witness Thorlton, and closed its case, a verdict of guilty under that evidence would have been permitted- to stand; but the record shows clearly that the prosecuting officers representing the state were overzealous and offered entirely too much evidence, the great hulk of which was highly incompetent, irrelevant, and immaterial and a large portion of the same properly objected to and exceptions saved.
“We regret to take this action, it not being in keeping with the policy of this pffice so to do; but where such error is plainly shown in the record we think it is as much our duty to call the court’s attention to the same as it is to undertake to uphold the judgments of the trial courts of this state.
“We respectfully suggest that this cause should be reversed.”

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

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


text:
    Ex parte RICHARD HARKINS et al.
    No. A-5381.
    Opinion Filed Feb. 14, 1925.
    (232 Pac. 1117.)
    Application of Richard Harkins and Hugh Kelly for writ of habeas corpus to be admitted to bail.
    Writ allowed.
    J. H. Warren and R. S. Howe, for petitioners.
    The Attorney General, John Barry, Asst. Atty. Gen., and R. K. Warren, Co. Atty., for respondent.
   PER CURIAM.

In this case petitioners, Richard Harkins and Hugh Kelly, by their attorneys, have presented to this court a petition alleging that they are unlawfully imprisoned in the county jail of Choctaw county by D. E. McClanahan, sheriff of said county; that, having been charged with the murder of Elmer Coker, they are now held in custody under commitment issued by A. G. Hardin, justice of the peace, acting as an examining magistrate on a preliminary examination held December 26, 1924; and that on a habeas corpus proceeding the district court of said county denied bail. It is alleged that petitioners were not guilty of the crime of murder as charged, and that the proof of their guilt of the crime of murder is not evident, nor the presumption thereof great. Attached to said petition is a transcript of the testimony taken upon their preliminary examination. On January 10,1925, the cause was heard upon the evidence taken upon the preliminary and other evidence offered on the application before the district court. Upon a consideration of the testimony presented, we are of opinion that petitioners should be admitted to bail. It is therefore adjudged and ordered that petitioner Richard Harkins be admitted to bail, bond fixed in the sum of $20,000; that petitioner Hugh Kelly be admitted to bail, bond fixed in the sum of $15,000; bonds to be conditioned as by law required, and to be approved by the court clerk of Choctaw county.


text:
    J. B. COFFEY v. STATE.
    No. A-4628.
    Opinion Filed Feb. 14, 1925.
    (232 Pac. 968.)
    (Syllabus.)
    1. Larceny — Direct Proof by Owner of Want of Consent to Taking Rendered Unnecessary by Admissions of Accused. Direct proof by the owner that there was want of consent to the taking may not be necessary where the defendant admits the asportation and conversion to his own use, where there are circumstances tending to show that the taking was done without such consent.
    2. ¡(Same — Nonconsent of Owner to Be Proved as Other Elements. The noneonsent of the owner is simply one of the elements of larceny to be proved by the same means and in the same manner as the other elements must be proved.

      Appeal from District Court, Stephens County; Cham Jones, Judge.
    J. B. Coffey was convicted of grand larceny, and he appeals.
    Affirmed.
    H. M. Carr, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

J. B. Coffey, plaintiff in error, here referred to as the defendant, was convicted of the larceny of a rock bit, an oil well tool, of the value of $500, the property of the Comanche Drilling Company, a partnership composed of four men, who were named. Defendant’s punishment Was fixed at confinement in the penitentiary for a year and a day.

The defendant claims that he was operating a blacksmith shop at Empire. Near this place there were extensive oil developments where drilling for oil was being carried on. Late in April or early in May he said that a man named Vaught brought the rock bit and accessories in question to the defendant’s blacksmith shop and wanted to pawn it to defendant for $50 for a period of five days or less. The defendant claims that he loaned this sum of money to Vaught and retained the bit and accessories as security for payment of the loan; that on a previous occasion he had sold Vaught an anvil. Further than this defendant knew nothing about Vaught, and admits that he never saw Vaught after the bit and accessories were left at defendant’s shop.

Defendant admitted that he later moved these tools to a place about a quarter of a mile from the shop and covered them with brush. There is some evidence tending to show that they were buried in the ground there. About a week later the defendant cleaned the oil tubes and other parts of this drilling tool and he and Al Copeland conveyed this machinery, mostly in the nighttime, to Peters Ridge, where defendant sold it the next day to Steve Nelson for $112.50.

On the part of the state C. R. Copeland testified that he was one of the partners composing the Comanche Drilling Company; that this company owned the rock bit and that the same was in his charge when it was stolen from their lease in June, 1922; that the bit cost $750 and was then of the value of $500; that he gave no one permission to remove or sell and knew of no such permission from any other member of the firm. Without reciting further details, there were other facts and circumstances shown implicating the defendant in the theft of this bit.

The defendant earnestly contends that want of consent to the taking is an essential element of the crime charged and that the state failed to introduce sufficient proof on that point. On this point the partner presumably in charge of the property at the time of the taking of the bit testified that it was taken without his permission or consent. All the circumstances indicated that it was so taken. Want of consent may be shown by circumstantial evidence and it was not necessary to bring into court all the other partners and the watchman in charge of the lease and show directly by each that they, individually, gave no consent to the taking. It would' be a violent presumption to assume that they would give their consent to a stranger not in the drilling business to take an article worth $500 and permit him to use or dispose of it as he saw fit, or to pawn and sell it, as was done in this case.

Direct proof by the owner that there was a want Of consent to the taking may not be necessary where the defendant admits the asportation and conversion to his own use, where there are circumstances tending to show that the taking was done without such consent. Hines v. U. S., 2 Okla. Cr. 639, 103 P. 879; George v. U. S., 1 Okla. Cr. 307, 97 P. 1052, 100 P. 46; State v. Prentice, 192 Iowa. 207, 183 N. W. 411, 15 A. L. R. 904.

In the Prentice Case, supra, it was said:

“It is contended my appellant that is was not shown in the evidence that the owner, of the car did not consent to its being taken. It is contended by appellant that this is necessary, and we understand the state to so concede, but they claim that the fact may be proven by the circumstances. The owner was on the stand, and could have readily testified to that had he been asked. There is no pretense anywhere in the record that defendant or any one else had the consent of the owner to take it. In fact, defendant makes some claim that the car was not identified, and claims that he did not take the car at all, either with or without the consent of the owner. The place from which it was taken, and the time of night, the fact that it was taken secretly, while the owner was in the theater, the owner’s conduct afterwards, in immediately commencing a search for the car; the fact that the car was never heard of, and the other circumstances in the record, are sufficient to sustain a finding that it was not with the consent of the owner. The authorities hold that this may be proven by circumstantial evidence.”
“In larceny prosecutions the owner of the property ordinarily must be called as a witness to prove the non-consent to the taking of the property. It is held, however, that where circumstantial evidence shows an absolute want of consent to the taking, it will not be cause for reversal that the want of consent was not proved by the direct and positive testimony of the owner, although he may have been a witness in the case. And there is authority to the effect that the nonconsent of the owner is simply one of the elements of larceny to be proved by the same means and in the same manner as the other elements must be proved.” 8 Encyc. of Evid. 134, 135.

And in State v. Wong Quong, 27 Wash. 93, 67 P. 355, the court said:

“The question of the sufficiency of such eircum-stances to establish the fact is usually one for the jury, and not for the court. It will not do to say that it can be proven only by the owner. The public have an interest in seeing that the guilty are punished, and this rule would permit the escape of all at whose trial the state was unable to procure the attendance of such owner.”

There is sufficient evidence in this case from which the jury might reasonably find that the defendant was implicated in the original felonious taking of the property in question. He admits the subsequent possession, asportation, and sale of the property.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    JESSE SIMMS v. STATE.
    No. A-4802.
    Opinion Filed Feb. 14, 1925.
    (233 Pac. 494.)
    (Syllabus.)
    Intoxicating Liquors — Unlawful Possession — Evidence Insufficient. In a prosecution for unlawful possession of intoxicating liquor, evidence considered and held insufficient to sustain conviction.
    Appeal from County Court, Muskogee County; W. W. Cotton, Judge.
    Jesse Simms was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Reversed.
    M. D. Hartsell, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case- charges that Jesse 'Simms “did knowingly and unlawfully have the possession of certain spirituous liquor, vinous liquor, fermented liquor, malt liquor, and intoxicating liquor, to wit, 62 gallons of intoxicating liquor containing more than one-half of one per cent, of alcohol measured by volume,” with intent to sell the same. On the trial the jury returned a verdict, finding the defendant guilty as charged in the information, and fixing his punishment at a fine of $100 and confinement for 30 days in the county jail. He has appealed from the judgment rendered on the verdict. The errors assigned question the suificiency of the evidence to sustain the conviction.

The evidence shows that Otto Bales, deputy sheriff, together with D. C. Baldwin, constable, searched the premises of this plaintiff in error, Jesse Simms, for intoxicating liquor. They found two barrels of mash, two or three boxes of yeast, and three sacks of sugar; one barrel was nearly full of mash; and the other barrel about one-quarter full; they were buried in the yard under a brush pile.

Fred De Yinna, pharmacist, testified that he made an analysis of the contents of the barrels; said it was corn mash, with an alcohol per cent, of 7.76.

The state rested, and there was a motion by the defendant for a directed verdict in the form of a demurrer to the evidence on the ground that the same was insufficient to convict him, because at the time of the filing of the information there was no law under which he could be prosecuted for the possession of mash. Which was overruled and exception allowed.

The defendant did not introduce any testimony.

The statute upon which this prosecution is based provides:

That it shall be unlawful to have the possession of “any liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per cent, of alcohol, measured by volume, and which is capable of being used as a beverage,” with the intention of violating any of the provisions of the prohibitory enforcement act. Section 7002, Comp. Stat. 1921.

One of the essential elements of the offense charged that the liquor or compound was capable of being used as a beverage. The character of a compound or mixture containing as much as one-half of one per cent, of alcohol or more may be such that its use as a beverage may be impossible.

In Wheeler v. State, 25 Okla. Cr. 365, 220 P. 962, it is said:

“The mere fact that a person, in order to gratify an inordinate appetite for intoxicants, may drink poisonous or noxious compounds or mixtures containing alcohol is not evidence that- the same is capable of being used as a beverage.
“Having possession of a compound or mixture containing as much as one-half of one per cent, alcohol, and which is not intended and cannot be used as a beverage, is not an offense, and the mere fact that such compound or mixture can be and is swallowed, does not make it a beverage.
“In State v. Costa, 78 Vt., 198, 62 Atl. 38, it was said: ‘The mere fact that a liquor can be and is swallowed does not make it a beverage’; the question being whether it was intended to be used as a beverage.
“ ‘The use of liquor as a “beverage” does not mean simply that the same is to be drunk, but the word “beverage” is used to distinguish the act of drinking liquor for the mere pleasure of drinking from its use for medicinal purposes.’ 1 Words & Phrases, First Series, p. 769; Gue v. City of Eugene, 52 Or. 282, 100 Pac. 254.”

Carefully considering the whole testimony in the case, we fail to find any competent evidence showing or tending to show that the so-called mash in question was capable of being used as a beverage, and for this reason we think the conviction is not sustained by the evidence.

It follows that the judgment of the lower court should be and the same is reversed.

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


text:
    CHARLES A. ELKINS v. STATE.
    No. A-4812.
    Opinion Filed Feb. 14, 1925.
    (233 Pac. 491.)
    (Syllabus.)
    1. Indictment and Information — Allowing Prosecution After Impaneling of Jury to Amend Mistake of Date Held Proper as Correction of Matter of Form. An information for murder which charges the homicide to have occurred on the 30th day of December. 1923, and from tbe effects of which deceased died on the 30th day of December, 1922, is not fatally defective. Tbe mistake of date is merely clerical, and its correction by amendment is a matter of form, which may be made even after the jury is impaneled.
    2. Jury — Juror not Disqualified by Mere Partial Opinion or Impression. A partial opinion or impression derived from newspaper accounts and from neighborhood rumor does not disqualify a juror, provided tbe court is satisfied by the declaration of the juror, under oath, that he can and will' act fairly and impartially on the matter to Ibel submitted to him.
    3. Jury — All Doubts as to Competency of Juror to be Resolved in. Favor of Accused. Upon the examination of a juror on his voir dire, the court should resolve all doubts as to the competency of a juror in favor of the defendant.
    4. Trial — Entrance to Jury of Outside Influence to be Prevented it is the duty of the court to see that no outside influence, by newspaper or otherwise, shall come to the jury such as would be likely to influence it in its deliberations.
    5. Trial — «Division of Jury in Sleeping Quarters, Each Division in Charge of Oflicer, not Separation Vitiating Verdict. In a capital case, where the necessity of accommodating the jury requires that there be a division of the jury in its sleeping quarters, where each such division is in charge of an officer, this is not such a separation as will vitiate the verdict.
    Appeal from District Court, Oklahoma County; William H. Zwick, Judge.
    Charles A. Elkins was convicted of murder, and he appeals.
    Affirmed.
    C. R. Reeves and E. C. Patton, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   EDWARDS, J.

On the night of December 29, 1922, the plaintiff in error shot and killed J. H. Ferguson on West California street, Oklahoma City. The killing took place at a rooming house kept 'by Mrs. Rosa Walker. It appears that plaintiff in error and the deceased Ferguson had formerly been associated together as private detectives, and had had a misunderstanding or difficulty, and had not met for some little time before the night of the homicide. On that night the deceased Ferguson, Judge Wright, and Mrs. Reeves went to the rooming house, and later the plaintiff in error came there. There is a wide conflict about what happened after that, but the evidence of the state is that the plaintiff in error was drunk and threatening. He had a gun which was gotten away from him and hidden in a window, and Ferguson was taken to another room and had taken off his clothing except a union suit. Disorderly conduct on the part of plaintiff in error continued, and he finally agreed to leave the house, and his gun was given him. He then engaged in an altercation with Mrs. Walker in the hall, in which he was noisy and profane. The deceased came to the door of the room to which he had been transferred and attempted to quiet him, when he was shot and killed by plaintiff in error, who contends that the shooting was done in self-defense.

Error of the trial court is assigned as follows: First. In permitting the state to amend the information after the trial had begun. Second. In overruling plaintiff in error’s objection to Juror Schunaman. Third. In not instructing the jury on the law of dying declaration. Fourth. Misconduct of the jury and the bailiffs in charge of the jury in permitting the jury to learn of the arrest of one of the witnesses in the case on a charge of perjury, and in permitting the separation of the jury during the course of the trial. Error is also assigned upon the giving of various instructions of the court’s charge.

The information as originally filed contained an error in the date in one place. In the printed and formal part of the information it was stated that the offense was committed on the 30th day of December, 1923, while in the charging part it was alleged that the deceased died on the 30th day of December, 1922. This, apparently, was not discovered by the state until the jurors were being examined at the trial of January 8, 1923; thereupon the county attorney asked leave to correct the error. The attorneys for plaintiff in error objected, which was overruled by the court' and exceptions taken. It is argued at some length that this is an amendment in substance, the date given an impossible date, and the information fatally defective. Numerous authorities are cited by plaintiff in error in support of this contention. Section 2559, C. S. 1921, provides:

“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.”

Section 2564 provides:

“No indictment or information is insufficient, nor 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.”

This court has frequently held that an amendment as to matter of form may be made at any time, even after the jury is impaneled, when it can be done without prejudice. to the substantial rights of the defendant. Rollen v. State, 7 Okla. Cr. 673, 125 P. 1087; Hogue v. State, 9 Okla. Cr. 521, 132 P. 511.

Some of the earlier authorities, when pleading and procedure were more technical than at present, held that an indictment stating a future date was fatally defective, but the more modern and better reasoned authorities incline to the view that it is a mere error which may be corrected without prejudice. The only way in which the defect here could have affected the plaintiff in error would have' been because he came to trial prepared to meet evidence that he had committed a crime on a day which had not yet transpired. And, if the change in the date by amendment left him unprepared, he should have requested a continuance. Obviously, the wrong date was a mere clerical error, not of substance, and in no sense prejudicial. Rollen v. State, supra; Conrand v. State, 65 Ark. 559, 47 S. W. 628; Stevenson v. State, 5 Baxt. (Tenn.) 681; State v. Brooks, 85 Iowa, 366, 52 N. W. 240; State v. Anderson, 125 La. 779, 51 So. 846; Newsome v. State, 2 Ga. App. 392, 58 S. E. 672; State v. Cooper, 31 Kan. 505, 3 P. 429.

In the examination of the Juror Schunaman, the juror stated that on the next day after the homicide he had heard the case talked about, and had a partial opinion. This he qualified by saying that it was an impression, but stated that he would be controlled by the evidence. That he could and would disregard what he had heard and render a fair, conscientious verdict and would require the state to convince him beyond a reasonable doubt before he would return a verdict of guilty. On cross-examination he testified that he probably had some of his opinion or impression, but his evidence indicates that his testimony meant merely to the fact of a transaction at the time of the homicide as follows:

“Q. They claim to know what happened there that night? A. That there was a transaction; they did.” '

And further:

“Q. There is nothing now in your mind that would keep you from giving this man a fair and impartial trial such as you would want yourself if you were on trial? A. No; there would not be.
“Q. You can give this man a fair and impartial trial, can’t you? A. I can.
“Q. In spite of what you say and what you heard talked? A. Well, that is no consideration.”

Section 2678, C. S. 1921, reads:

“* * * But no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon rumor, statements in public journals, or common notoriety, provided it appears to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him.”

This question has been often before this court, and we want to emphasize that the trial court should resolve all doubts arising under the evidence as to the competency of a juror .in favor of the person on trial, and, where it appears that the juror would not be impartial, a challenge for cause should be sustained. Where a juror has formed an opinion as to the guilt of the accused that will require evidence to remove, he is not a qualified juror. The plaintiff in error excused by peremptory challenge the Juror Schunaman. The record does not affirmatively show that the plaintiff in error exhausted the peremptory challenges allowed him by law, and, even if the overruling of the challenge for cause were prejudicial error, it is not available. Turner v. State, 4 Okla. Cr. 164; 111 P. 988; Johnson v. State, 1 Okla. Cr. 321, 97 P. 1059, 18 Ann. Cas. 300.

A mere partial opinion or impression does not disqualify, if it be apparent that such partial opinion oi impression will not influence the juror in finding á verdict. Inasmuch as the trial court has a wide discretion in passing on the competency of jurors, we think there was no abuse of discretion in overruling the challenge for cause to the Juror Schunaman.

At the conclusion of the evidence, Mr. Briggs, one of the attorneys for plaintiff in error, said:

“The defendant at this time requests the court to in-truct the juror upon the law governing a dying declaration, as offered in this case by the prosecution.”

No written request for any special instruction on this subject was made, and the court was not further enlightened as to what was desired by the statement just quoted. Counsel in their brief in this court have been no more definite, but content themselves with saying that the defendant requested an instruction, which was not given, and was entitled to have the jury instructed on the rule of law as to the sufficiency of a dying declaration. No authorities are cited; just what phase of the law on which it was desired that the court should instruct the jury we do not know. The matter of dying declaration has been often considered by the courts, and the different aspects of the law determined. Its competency was a matter for the court, and was determined by the court, we think, properly when it was admitted in evidence. Its weight was for the jury, and, in general,' is determined in the same manner and by the same rules as is applied in weighing other evidence. Hall v. State, 124 Ga. 649, 52 S. E. 891; Pearson v. State, 143 Tenn. 385, 226 S. W. 538.

Error is further assigned in the misconduct of the jury and misconduct of the bailiff in charge of the jury. It is shown that during the course of the trial, and before it had been concluded, one of the witnesses for the defendant was arrested on a charge of perjury. News of such fact was printed in the newspapers, and newsboys in attempting to sell papers made known such, fact in the hearing of the jurors. There is no complaint that the jurors read the papers, or that any person talked to any juror, or that any one in the hearing of the jury said anything about it other than the mere outcry of some newspaper vender. Plaintiff in error contends this was improper influence and the receipt of evidence out of court. None of the jurors were called in support of this assignment in support of the motion for a new trial.

It has often been held error for jurors in the trial of a homicide case to read editorials or accounts of the trial which would tend directly or indirectly to influence their minds either for or against the accused. Styles v. State, 129 Ga. 425, 59 S. E. 249, 12 Ann. Gas. 176; People v. Wong Loung, 159 Cal. 520, 114 P. 829; State v. Tilden, 27 Idaho, 262, 147 P. 1056; People v. Fleming, 166 Cal. 357, 136 P. 291, Ann. Cas. 1915B, 881.

There is nothing to show that the jury ever learned anything about the arrest of the witness on a charge of perjury, except the bare fact and in the manner stated. We can readily perceive that, if the judge in the presence of the jury should order the arrest of a witness for perjury, the jury might take it as an expression of the opinion of the judge on the lack of truthfulness of the testimony of the witness. But, if the arrest was ordered by the court in this case, it was out of the presence of the jury, or, if instituted by the county attorney on complaint or by the indictment of the grand jury, it would not carry with it any such significance. It is, of course, the duty of the courts to see that no outside influence shall come to the jury which might influence their determination in a case on trial. We do not believe, however, there is any substantial error in the mere fact of the arrest of the witness brought to the knowledge of the jury in the manner as disclosed by the record in this case.

Misconduct in allowing the jury to separate after the final submission is argued. There were two bailiffs with the jury, and it was found that all could not sleep in one room, so one of the bailiffs occupied one room with a part of the jury and another with another part. This court has held that in capital cases the jurors, after the case is finally submitted, should not be permitted to separate.

Section 2716, C. S. 1921, reads:

“The jurors sworn to try an indictment or information, may, at any time before the submission of the cause to the jury, in the discretion of the court, be permitted to separate, or to be kept in charge of proper officers.”

Section 2723, in part, is as follows:

“After hearing the charge, the jury may either decide in court, or may retire for deliberation. If they do not agree without retiring, one or more officers must be sworn to keep them together in some private and convenient place, and not to permit any person to speak to or communicate with them, nor do so themselves, unless it be by order of the court,' or to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed, or when ordered by the court.”

In the early case of Bilton v. Territory, 1 Okla. Cr. 566, 99 P. 163, it was held that under this provision of law it was error, vitiating the verdict, for the jury to separate in a capital case after final submission, but in that case the court said:

“Most of the cases cited by the territory in this case on this subject hold that the separation of a jury for a short time will not vitiate a verdict, where the juror so separated from the others is attended by a sworn officer, and where the facts showT affirmatively that no improper influence upon the minds of the jurors has taken place; but the great weight of authorities in capital cases favor the doctrine that, if the jury separates without being attended by a sworn officer, such separation vitiates the verdict, notwithstanding no affirmative evidence of improper influence has been adduced.”

An examination shows that in that case two of the jurors separated from the others, and without any accompanying officer, went into a saloon and bought whisky, and that another one without an officer separated himself from the other jurors.

It must be evident, however, that where the necessity of accommodating the jurors requires a division, such as the use of toilet accommodations, sleeping quarters, and such, it is not the separation contemplated by the statute, particularly as in this case where each part of the jury was accompanied by a bailiff.

Complaint is also made that the jurors on one occasion attended a picture show. It is conceivable that a picture show might be of such a character as to have a bearing on the case on trial, but nothing of the kind- is suggested here, so no error results.

There is some contention that the record does not show that the bailiffs were sworn on some occasions, nor the jury admonished. In the absence of an affirmative showing to the contrary, it will be presumed that these things were done.

Finally, the giving of certain instructions is complained of. The parts of the instructions complained of are not set out as required by the rules of this court, and no authorities cited in support of the contention, but we have examined carefully the instructions complained of, and find them free from fundamental error.

It appears that the defendant had a fair trial, that the law was fairly submitted to the. jury, the evidence ample, and no legal reason is apparent for disturbing the verdict.

The verdict is affirmed.

BBSSEY, P. J., and DOYLE, J., concur.