text:
    HARLIN BROYLES v. STATE
    No. A-10695.
    Oct. 3, 1946.
    (173 P. 2d 235.)
    Writ of Certiorari Denied Dec. 9, 1946. See 67 S. Ct. 358.

      Walter Billingsley, of Wewoka, and George L. Hill, of McAlester, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Haskell A. Holloman, Asst. Atty. Gen., and Bill Biggers, Co. Atty., and Hubert Hargrave, Asst. Co. Atty., both of Wewoka, for defendant in error.
   JONES, P. J.

The defendant, Harlin Broyles, was charged in the superior court of Seminole county by information with the crime of murder, was tried, convicted and sentenced to death, and has appealed.

It is alleged that the defendant shot and killed Eric Nicholson, a deputy sheriff of Seminole county, while the deceased officer was attempting to take the defendant to the police station in the city of Seminole on January 10. 1945, about 5 p.m., for questioning in connection with the alleged possession by the defendant ola forged check.

The proof of the state showed that about 4 p. in. on January 10,1945, the defendant appeared at a store operated by C. P. Roberts, and sought to purchase a pistol which was laying in the window of the store. He presented a check purportedly signed by A. S. Wells of Seminole, but Mi*. Roberts refused to accept the check and the purchase was not made. The defendant reappeared at the store again in about half an hour and again sought to purchase the pistol.- At that time he remained in the store about ten minutes. His actions aroused the suspicions of Roberts and Rev. S. W. Nesmith, a customer of the store, who notified the officers immediately after the defendant had left. The deceased, Eric Nicholson, and another officer, Ode Lewis, went to Roberts’ store in response to the call and were given a description of the man who had attempted to pass the check.

The witness Roberts testified that he walked out on the street with the deceased, and in a few minutes they were able to locate the defendant standing in front of a theater. The deceased went up to the defendant and said, “Come on, I want to talk to you,” and they started walking south toward the police station. When they had almost arrived at the police station, various witnesses testified that they saw the defendant jerk loose from the officer and start backing up. That defendant had on a leather jacket and pulled a gun out of the leather jacket, and, as the officer started toward him, the defendant fired two shots, one of which struck the deceased in the heart, killing him almost instantly.

Immediately after the shooting, the defendant fled down an alley, through a freight depot, across some railroad tracks to a water pump station operated by the city of Seminole. At that point, he forced two employees of the city, Bill Adams and Wallace Smith, to get into the Adams car with him and drive west to the Bowlegs highway. When they reached the highway, Smith jumped from the car and ran. The defendant then forced Adams to drive south toward Bowlegs city. Adams continued to drive the car until it ran out of gas at a point west of Bowlegs. The defendant continued to keep Adams with him for some time in the woods. Early in the night they walked to some houses owned by the Gulf Oil Company where the defendant stole an automobile and forced Adams to drive it. The lights were not working, and they abandoned this car and later stole another automobile which he likewise forced the witness Adams to drive. During the defendant’s travels with Adams that night, he stopped and stole a mackinaw coat out of the car of a Mr. Gilley. After Adams had been with the defendant about five hours, the defendant released him on a section line not far from the Harjo community. The defendant in the meantime stole a pair of overalls off a clothes line from a man named Mc-Vay.

The proof further showed that prior to the killing, and on January 7, 1945, the defendant, under the name of George McDaniel, appeared in Shawnee, Okla., and rented a room, telling the landlady that he was an under-cover man working for the government. The landlady testified that on the night of January 10, 1945, the defendant did not occupy his room, but that he came to Shawnee the next morning, January 11th; that his actions were very suspicious, and the landlady told him to leave the following day. The defendant was not heard from again until about February 2, 1945, when he was stopped by a policeman in Waco, Tex., for questioning. The defendant at that time told the policeman that he was farming at San Angelo. When asked to show his draft card, the defendant produced a card made out to George McDaniel, Route 1, Granby, Missouri, and said that his name was George McDaniel. After questioning him further, the policeman started with the defendant toward the police station. When they were within about a block of the police station, the defendant pulled a gun and fired two shots, one of which went into the officer’s stomach and another one penetrated his little finger. The officer was not killed, but was able to draw his gun and shot the defendant, wounding him sufficiently that he was captured by some bystanders at that place. When the defendant was searched, the officers found a small address book in which were written the names of three attorneys living at Seminole, Oklahoma, including the name A. S. Wells, which was forged to the check allegedly presented by defendant to C. P. Roberts; also the name First State Bank of Seminole was written in the address book. The officers then searched the room where the defendant said he had been staying and found a suitcase with the name George McDaniel thereon. In the suitcase were some clothing and several shells of different caliber. Also in the suitcase was a letter addressed to George McDaniel, 230 North Bell, Shawnee, Oklahoma, which was mailed from Topeka, Kansas, on January 9, 1945. The officers also found in the billfold of defendant two Social Security cards, one of which was made out to George Harvey McDaniel and the other to George Eugene Mason.

The defendant under questioning by the officers at that place admitted that he had formerly been living at 230 North Bell in Shawnee, Oklahoma, and that the letter was from a girl friend at Topeka. The Waco officers then communicated with officers in Oklahoma, and two carloads of people who had seen the defendant at the time of the shooting or shortly before, and including one of the men, Bill Adams, who was kidnapped after the shooting, went to Waco and positively identified the man as the one who had killed Officer Nicholson.

The defendant told the officers that he had been visiting some with his parents at McCamey, Tex. The officers then went by his parent’s place and recovered the mackinaw coat which the defendant had stolen from Mr. Gilley while he was fleeing after the shooting with Adams.

At the time of the trial the defendant was positively identified by ten witnesses as being the man who killed Officer Nicholson and fled after kidnapping Adams and Smith. The landlady, and other parties who saw the defendant at the rooming house at 230 North Bell street in Shawnee, identified defendant as being the George McDaniel who stayed there for one week. The overalls which the defendant had stolen from the witness McVay were found in his room at 230 North Bell street in Shawnee and were identified at the trial by McVay. The witness Gilley also identified the mackinaw coat which was stolen from him the night of January 10th and which was recovered by officers at the home of defendant’s parents in Texas. There were many details of evidence supplied by the various witnesses for the state which conclusively showed the defendant’s guilt.

The defendant did not testify.

The first assignment of error is that the information filed against the defendant contained an allegation of a prior conviction of defendant of a felony, and that the court erred in allowing the county attorney to read such information with such allegation to the jury.

Counsel for defendant contend that the county attorney erroneously included an allegation of a prior conviction in the information filed against the defendant, and that the trial court erred in allowing the county attorney in his opening statement to the jury to read the information containing therein the allegation of the prior conviction.

In Johnson v. State, 79 Okla. Cr. 71, 151 P.2d 801, this identical question was presented to us. It was therein held:

“Habitual criminal statute, Penal Code, art. 6, sections 1817 and 1818, C. S. 1931, 21 Okla. St. Ann. §§ 51 and 52, does not create or define a new or independent crime, but describes circumstances wherein one found guilty of a specific crime may be more severely penalized because of Ms previous conviction, as alleged and found. ‘Habitual criminality’ is a state and not a crime.
“In order to subject an accused to the enhanced punishment for a subsequent offense, it is necessary to allege in the indictment or information the fact of a prior conviction or convictions, in order that defendant may be clearly informed of the charge he is called upon to meet.
“In a prosecution seeking an enhanced punishment for a second or subsequent offense, the burden is upon the state to prove the prior conviction or convictions beyond a reasonable doubt.
“Habitual criminal statute authorizing increased punishment for subsequent conviction should not be used by prosecution in capital felonies, unless it is clear that the Court must charge the jury on some included offense, because there can be no cumulative punishment in a capital case, and statute should not be used to prejudice an accused on trial for his life by admitting evidence of distinct offenses which tend to show the bad character of the accused.
“Trial court may admit evidence of former conviction in murder prosecution where plea of self-defense is interposed and evidence of state shows that included offense of manslaughter in the first degree must be submitted’ to the jury, provided said prior conviction is charged in the information.”

At the time the county attorney read the information to the jury, no objection was interposed by counsel for defendant. The record also discloses that at the time of the arraignment of the defendant, a plea of not guilty was entered for him without any objection being interposed to that part of the information alleging the prior conviction.

In Johnson v. State, supra, it is stated:

“The issue could have been raised by motion to strike the allegation of a second offense at the time of the arraignment of the accused, or by objection to the introduction of evidence as to the former conviction during the trial.”

The record discloses that just before the state dosed its case, counsel for the state offered in evidence the information, judgment and sentence filed in the superior court of Clay county, Missouri, against the defendant, to which offer the defendant’s counsel objected and the objection was sustained by the court. It is apparent that at that point in the trial, the judge had determined that the defense was in the nature of an alibi, and that the verdict of the jury would necessarily be that of guilty of murder or nothing, and that the question of enhanced punishment in case of a conviction for manslaughter had no place in the proceedings. However, the county attorney did not know at the time the information was filed whether the defendant would interpose a plea of self-defense, as many of the state’s witnesses testified that there; was a “scuffle” or “struggle” between the defendant and deceased at the time the shot was fired. As the defendant did not testify at the time of the preliminary examination, the county attorney did not know at the time the information was filed whether a plea of self-defense would be made on behalf of defendant which would inject the issue of manslaughter in the first degree.

Attention is further directed to the fact that the only time counsel for defendant interposed an objection to any matter pertaining to the question of the prior conviction of defendant, the objection was sustained.

Also we have observed that in instruction No. 12, the trial court stated to the jury:

“* * * Nor shall you consider for any purpose any evidence offered and by the court rejected or which has been stricken by order of the court. Such evidence is to be treated as though you never heard it.”

It is next contended that the court erred in permitting the state over the objection of defendant to ask certain questions of the jurors on their voir dire examination.

One hundred twenty-five pages of the record are devoted, to the examination of the jurors. Counsel for both the state and the defendant closely questioned each prospective juror. The record further discloses that each time objection was interposed to the form of question asked by counsel for the state that such counsel withdrew the alleged objectionable question. The three principal questions to which this proposition is directed as shown by the record are as follows:

“Q. Do you know of any reason if selected as a juror and your solemn duty imposes upon you the passing of death — a verdict of death in this case, why you would not make a fair and impartial juror? A. I do not. Mr. Hill: I believe I will object to that question, because it is not in compliance with the statute. By Mr. Bishop: We will withdraw the question. The Court: All right. * * * Q. Mr. Davis, in this case you have heard the statement to your brother jurors, Mr. Mayfield, and others, that the State of Oklahoma is asking for the extreme penalty? That is, death in the electric chair? By Mr. Hill: Now, I think we want to object to the statement of plaintiff’s counsel that Oklahoma is asking for this, that and the other. The State of Oklahoma prosecutes this case, but the State of Oklahoma guarantees to every man a fair and impartial trial, and asks that they be acquitted if the evidence justifies that kind of verdict just the same as they do or they may convict on the other hand. Now he is representing the State of Oklahoma as the county attorney, and they say that they will ask for that, but the State of Oklahoma doesn’t request anything only a fair trial in the trial of thiá case. The Court: All right. By Mr. Bishop: We will change the wording of the question, if Mr. Billingsley objects. The Court: All right. Q. And we will withdraw it. Thank you, Walter. The Court: All right. * * * Q. But once, if convinced beyond a reasonable doubt that the evidence and the facts justified the infliction of the death penalty, can you, acting as a courageous man and your duty as a juror return into this court room a verdict carrying with it the sentence of death? A. Mr. Hill: I don’t think that is a proper question, and I object to it. By Mr. Bishop: I will withdraw the question. Mr. Hill: I don’t think this is a proper question. By Mr. Bishop: We will withdraw the question. Thank you, Mr. Hill. The question may be withdrawn. I will try to state it as Mr. Hill wants it stated.”

The record discloses that throughout the voir dire examination objections were interposed by counsel for defendant only six times, and that in each of these instances the questions were withdrawn and reframed. In no instance was the trial court called upon to pass upon the objection of counsel for defendant.

This court has many times discussed what are proper questions to be asked a juror in determining whether he entertains conscientious scruples against the infliction of the death penalty. In McDonald v. State, 54 Okla.. Cr. 161, 15 P.2d 1092, 1094, it is said:

“In a capital case, in ascertaining whether a juror entertains conscientious scruples against the death penalty, he may be asked if in a case where the law and the evidence warrants he could, without doing violence to his conscience, agree to a verdict for the death penalty. When the prosecution goes beyond that, the court should limit the question and particularly so when objection is made. But counsel for a defendant may not rest on a mere objection and exception if he is of the opinion that by such question and answer a juror is biased, or prejudiced or not fair and he is not satisfied with him, he must challenge for cause if of the opinion ground for such challenge exists, and, if not, he must exercise the right given him by statute to exclude the juror by peremptory challenge. If counsel believes any juror was pledged to return a verdict imposing the death penalty, under the circumstances named, he should have purged the jury by challenge.”

Counsel for the state has further called our attention to the fact that no exceptions were taken or preserved to these alleged errors. It was not set up as an assignment of error in defendant’s motion for a new trial nor mentioned in the petition in error. Under such circumstances, such assignments of error may not be considered on appeal. Mills v. State, 73 Okla. Cr. 98, 118 P.2d 259.

However, in capital cases where the death penalty has been invoked, this court has been liberal in considering any assignments of error so as to determine whether the accused has been fairly convicted. We have accordingly considered this question raised by counsel and have come to the conclusion that there is no error in the conduct of counsel for state in the questions asked by them on voir dire examination. Attention is further directed to the fact that at the time the last juror was called to the box for examination, counsel for the defendant said, “We are satisfied with the jury.”

It is next insisted that the court erred in admitting the evidence of the shooting of the police officer at Waco, •Tex., for the reason that such shooting was a separate offense, was not a part of the res gestae and was prejudicial to the defendant.

This court has many times said that evidence of flight of defendant and the circumstances surrounding his arrest are admissible even though such actions might show him guilty of another offense.

In Cox v. State, 25 Okla. Cr. 252, 220 P. 70, it is said:

“Evidence that the defendant, at the time he was arrested, was armed, resisted arrest, and attempted to escape, is competent, and the admissibility of such evidence is not affected, by the fact that incidentally it tended to prove the defendant guilty of other offenses.”

In the body of the opinion it is stated:

“The evidence of the possession of the revolver, which answered the description given by the prosecuting witness, and of the search light, which also answered the description given by the prosecuting witness, and of the description of the clothing worn by the defendant at the time of his arrest, which also answered the description given by the prosecuting witness, were all admissible on the question of the identity of the defendant with that of the man who committed the robbery. The evidence of his attempted escape from arrest and resistance to arrest were provable as indicating a consciousness of guilt on his part, and the admissibility of this evidence was not affected by the fact that it tended to prove the defendant guilty of other offenses. Hill’s Criminal Evidence, 54, 115, and 118; Robinson v. State, 8 Okla. Cr. 667, 674,130 P. 121; Vickers v. United States, 1 Okla. Cr. 452-462, 98 P. 467.”

In Bouyer v. State, 57 Okla. Cr. 22, 43 P.2d 153, 154, this court held:

“The testimony of officers detailing the steps taken in searching for and arresting the defendant is admissible for the purpose of proving his flight. * * *
“Evidence which is relevant to the issue is not rendered inadmissible by reason of the fact that it tends to prove the defendant guilty of an offense other than the one charged in the information.”

The arrest of the defendant at Waco, Tex., and the evidence uncovered in connection with the search of defendant and his suitcase revealed several corroborative bits of evidence. They showed that defendant was going under the name of George McDaniel, which was the same name used by him at Shawnee. He had in his possession an address book bearing the name of A. S. Wells and two other people of Seminole and the First State Bank of Seminole. Since defendant contended to the officers at the time of his arrest that he had never been in Seminole, the possession by him of this address book with the names of the Seminole residents and their addresses set forth therein was competent evidence directly connecting him with the offense charged.

In the early case of Almerigi v. State,. 17 Okla. Cr. 458, 188 P. 1094, it is held:

“Flight from the scene of a crime and acts done by a fugitive to hide his identity are circumstances tending to show guilt, and proof of them is admissible in evidence.”

In Quinn v. State, 52 Okla. Cr. 81, 2 P.2d 970, this court stated:

“The main contention is that the court erred in permitting the state to offer testimony of the difficulty in the elevator. The state insists this evidence was admissible as showing an attempt to escape. Evidence of resistance to arrest, flight, escape or attempt to escape, is generally held admissible as showing a consciousness of guilt. The presumption arising from such conduct may be rebutted, and it is for the jury to say whether or not the conduct is due to a consciousness of guilt. 1 Wig. on Ev. 276; People v. Talbe, 321 Ill. 80, 151 N.E. 529; Cox v. State, 25 Okla. Cr. 252, 220 P. 70. The surrounding facts and circumstances in this case render this evidence competent. Unexplained as it was, the jury must have believed the attempt to use the pistol was in an attempt to escape.”

In the case of Littrell v. State, 21 Okla. Cr. 466, 208 P. 1048, 1050, the defendant was charged with the crime of bank robbery. At the trial the court admitted evidence that several days after the robbery the defendant was discovered and surrounded by officers and that he fired several shots at the officers and wounded a deputy sheriff. In disposing of defendant’s contention that this evidence was inadmissible, it was stated:

“Certainly this flight, resistance to arrest, and escape on the part of the defendant was admissible in evidence, as a circumstance indicative of guilt, and this notwithstanding the fact that he committed another crime in so resisting arrest. Jones on Evidence, 287, states the law as follows: ‘Thus flight, * * * attempt to escape, resistance to arrest, are all facts which may tend to show consciousness of guilt, and are in common practice received in evidence as relevant.’ ”

Lastly, it is contended by the defendant that the court committed error in not instructing the jury as to the purpose in admitting the evidence concerning the arrest and attempt to escape of the defendant at Waco, Tex. No requested instruction was submitted by counsel for defend-. ant, and no exception was saved to the giving of any instruction. We think the court in the absence of any request for further specific instruction on this question sufficiently stated the law in instruction No. 11 as follows:

“The flight of a person accused of crime, or his acts in avoiding the officers, may indicate his consciousness of guilt of the offense, or such act or conduct may not indicate consciousness of guilt, depending upon the circumstances of the case. If you find that there was any such flight by the defendant in this case, then you may consider the circumstances thereof, and the defendant’s explanation thereof, and from all the facts and circumstances you may give to this evidence and these circumstances such weight and value as evidence as you deem proper.”

In Green v. State, 70 Okla. Cr. 228, 105 P.2d 795, 797, this court held:

“The Code of Criminal Procedure provides the method of procedure for requesting instructions, and a defendant may submit to the court written instructions with the request that they .be given, and how objections and exceptions shall be reserved. Secs. 3057, 3079, 22 Okla. St. Ann. 831, 856.
“It lias been repeatedly held by this court that it is the duty of counsel for a defendant, where he is of the opinion that additional instructions should be given, to reduce them to writing, and request that they be given. If he fails to do so a conviction will not be reversed, unless the court is of the opinion, in the light of the entire record, and instructions of the court, that there was a failure to instruct upon some material question of law, and that the defendant has been deprived of a substantial right. Lee v. State, 67 Okla. Cr. 283, 94 P.2d 5; Pulliam v. State, 61 Okla. Cr. 18, 65 P. 2d 426; Adams v. State, 62 Okla. Cr. 167, 70 P.2d 821; Russell v. State, 17 Okla. Cr. 164, 194 P. 242; Williams v. State, 12 Okla. Cr. 39,151 P. 900.”

We have given this case that careful consideration and attention which its importance demands. We can perceive no errors in the proceedings before the trial court. Counsel for the state are to be commended upon the painstaking care with Avhich they presented their evidence against the defendant. It shows that careful attention was given to procure all evidence that might be available as bearing on the guilt of the accused. Counsel for defendant made a strong and vigorous fight for their client, but the evidence of his guilt as presented by the state was so overwhelming that no reasonable person with any regard for his oath as a juror could have come to any conclusion other than that the defendant was guilty of murder as charged in the information.

There is some contention made in the brief that the punishment should be modified to life imprisonment. With this we cannot agree. The evidence shows that the defendant is a cold-blooded, wanton killer, wholly without regard for human life. The infliction of the death penalty is the only proper punishment to be meted out to such an individual in cases such as presented by this record.

The judgment of the superior court of Seminole county is therefore affirmed.

The date originally appointed for the execution of the defendant Harlin Broyles having passed pending this appeal, it is ordered, adjudged and decreed by this court that the judgment and sentence of the superior court of Seminole county be carried out by the electrocution of the defendant Harlin Broyles by the Warden of the State Penitentiary at McAlester, Oklahoma, on Tuesday, December 31, 1946.

BAREFOOT and DOYLE, JJ., concur.


source: Caselaw Access Project

author: JONES, P. J.

license: Public Domain

text:
    Ex parte HENRY E. GEORGE.
    No. A-10744.
    Oct. 9, 1946.
    (173 P. 2d 454.)

      Harold McArthur, of Tulsa, for petitioner.
    Mae Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for respondent.
   JONES, P. J.

This is an original action in habeas corpus instituted by the petitioner, Henry E. George, to secure his release from confinement in the State Penitentiary.

The verified petition filed herein alleges that on December 3,1928, while the petitioner was a minor of the age of 20, he entered his plea of guilty in the district court of Tulsa county in cause No. 4572 to the crime of auto theft; that prior to the entry of said plea of guilty, the petitioner had been confined in the county jail since October 27,1928. That petitioner was young and inexperienced in court and entered his plea of guilty after talking with the assistant county attorney. That by reason of his talk with the assistant county attorney, he was led to believe that if he would enter a plea of guilty he would get a bench parole, fine or jail sentence for joy-riding. That petitioner had no lawyer at the time he entered his plea of guilty. That pursuant to the plea of guilty, the petitioner was sentenced to serve five years’ imprisonment in the State Reformatory at Granite, Oklahoma. That on June 6, 1930, while the petitioner was confined in the State Reformatory, he received a parole by the Governor of the State of Oklahoma.

That subsequently thereto the petitioner was sentenced by the district court of Tulsa county in case No. 11715 to serve two and a half years in the State Penitentiary from the date of his reception in said institution. (The offense for which said sentence was pronounced is not stated in petition.) That on April 5, 1946, the petitioner satisfied the sentence of two and a half years in case No. 11715, bnt that the warden of the State Penitentiary refused to discharge and release your petitioner for the reason that the Governor of the State of Oklahoma had revoked the parole given to the petitioner from the sentence in the State Reformatory in case No. 4572, and directed that the petitioner be taken into custody to serve out the remainder of the said sentence, and that the warden of the State Penitentiary is now holding the petitioner pursuant to the transfer from the State Reformatory at Granite of the original judgment and sentence in case No. 4572 and because of the revocation of the parole in said cause.

The petitioner further stated that the judgment and sentence in case 4572 was void as being in violation of his constitutional right to have the benefit of counsel.

The rule to show cause was issued and a response has been filed by the warden of the State Penitentiary in which said response the warden admits that he is holding the petitioner as an inmate of the Oklahoma State Penitentiary pursuant to a commitment issued by the district court of Tulsa county on December 3, 1928, wherein the petitioner was sentenced to serve five years’ imprisonment in the State Penitentiary for the crime of stealing an automobile.

The response further alleges that subsequent to the arrest of the petitioner, he was given a preliminary examination together with a codefendant on said charge of stealing an automobile, and that at said preliminary examination the petitioner was duly represented by counsel. That at the conclusion of said preliminary hearing, the petitioner whs bound over to await the action of the district court, arid his codefendant was held as a material witness against the petitioner. That subsequent thereto in open court the petitioner was duly arraigned on the information filed in the district court, and after being fully informed of Ms constitutional rights and right to counsel, the petitioner waived his said rights, including his right to employ counsel, and entered his plea of guilty to the crime charged.

The respondent further alleged that all of the matters pleaded in the petition constitute a collateral attack upon the record and judgment of the said district court and are insufficient to constitute any grounds for the issuance of a writ of habeas corpus.

A transcript of the evidence taken in a hearing before the district court of Pittsburg county in an application there for a writ of habeas corpus was admitted in evidence.

There was also admitted in evidence all the various exhibits attached to the petition and the response. This evidence shows that on October 28, 1928, an information was filed in the common pleas court of Tulsa county charging the petitioner Henry E. George and one Ray Raymond with stealing an automobile. That the defendants were arraigned on October 30,1928, pleas of not guilty were entered and their bond fixed at $4,000 each. The preliminary examination was set for November 8, 1928. Prior to the preliminary, the codefendant, Ray Raymond’s bond was reduced to $500, and he was held as a material witness against the petitioner Henry E. George. The transcript of the record from the common pleas court shows that on November 8,1928, the case was called for trial, both sides announced ready. Seven witnesses were sworn and examined on behalf of the state. The defendant Henry E. George demurred to the evidence of the state. The demurrer was overruled. No evidence was introduced on behalf of the said George, and he was ordered held for trial in the district court, and bond was fixed in the sum of $1,500. Kay Raymond was ordered held as a material witness, but permitted to sign his own bond and was released.

The defendant’s testimony as to what transpired when he was brought before the district court of Tulsa county for arraignment on December 3, 1928, is as follows:

“A. Well, I don’t remember now whether they read the information or not. My name was called and I went up in front of him. He asked if I knew that I was charged with, I said 'Yes,’ he said I was charged with stealing an automobile, he said, 'Are you guilty or not guilty’, of course, I said 'Guilty’ and he sentenced me right then to five years in Granite.”

As to the promises allegedly made to the defendant to induce him to plead guilty, the defendant testified:

'Q. You said you had a conversation with Mr. Tom Watson, assistant county attorney- tell what it was? A. He came up to the jail and wanted to know if there was anybody who wanted to plead guilty. Of course, there were several boys pleaded guilty, and I told him it was the first trouble I was ever in, and he more or less led me to believe I was to get a bench parole or it wouldn’t be very much to it. The fact of the matter is I thought I would get maybe a fine, a jail sentence, or a parole.”

The proof further shows that subsequent to the parole of the petitioner on June 8,1930, he has served six separate penitentiary terms. It is also shown that the assistant county attorney, with whom the defendant allegedly had the conversation, is now deceased.

The judgment and sentence filed against the petitioner is regular on its face. The burden is upon the petitioner in making this attack upon the judgment to show lack of jurisdiction in the trial court to pronounce the judgment and sentence.

. We have held that the trial court may lose jurisdiction to pronounce judgment by failure to complete the court by appointing counsel to represent the accused where the accused has not effectively waived his constitutional right to the assistance of counsel. Ex parte Meadows, 70 Okla. Cr. 304,106 P. 2d 139,146.

It has also been held that:

“In a felony case, where the defendant is unable to employ counsel and'is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law.’ ”Ex parte Meadows, supra.

Courts do not look with favor upon a case where a person acquiesces in a sentence pronounced against him for a long period of time and then seeks to have the judgment, regular on its face, set aside by asserting that his constitutional rights were denied him in the proceedings before the trial court, especially where the proof consists wholly of testimony of petitioner.

The minutes of the common pleas court show that the defendant was represented by counsel at the preliminary examination. Although the petitioner denies that such was the fact,' this court is inclined to give more weight to the written record made and filed in said cause at the time the examination was held than the oral testimony of the petitioner made approximately 18 years subsequent thereto.

The petitioner has not sustained the burden of showing that the proceedings before the district court of Tulsa county were so irregular as to deprive the court of jurisdiction to render the particular judgment. The petitioner was held in jail for 30 days before he entered his plea of guilty. His codefendant and six other witnesses testified against him at the preliminary hearing. Upon the entry of his plea of guilty, the district court gave him the minimum sentence of five years’ imprisonment in the State Reformatory. No complaint as to the alleged illegality of said judgment was ever raised until the defendant had served part of Ms original sentence, then was paroled, later committed crimes in various states and served six separate penitentiary sentences before being recommitted upon revocation of his parole to serve the balance of his five-year sentence. There is insufficient showing to justify the setting aside of the judgment upon the ground that the court was without jurisdiction to pronounce the same. The writ of habeas corpus is denied.

BAREFOOT, J., concurs. HOYLE, J., not participating.


author: BAREFOOT, J.

text:
    MARION BUTLER v. STATE.
    No. A-10616.
    Oct. 9, 1946.
    (173 P. 2d 453.)

      C. D. Wilkinson, of Idabel, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and L. E. Mifflin, County Atty., of Idabel, for defendant in error.
   BAREFOOT, J.

Defendant, Marion Butler, was charged in the county court of McCurtain county with the unlawful possession of intoxicating liquors, to wit: Six pints of whisky. He was tried, convicted and sentenced to pay a fine of flOO and to serve a term of 30 days in the county jail, and has appealed.

The Attorney General, on behalf of the state, has filed a motion to dismiss the appeal in this case on the ground that the petition in error with ease-made attached was not filed in this court within the time prescribed by law.

The record discloses that defendant was tried and convicted in the county court of McCurtain county on November 26, 1944. His motion was new trial was overruled and judgment arid sentence entered on December 1, 1944, and at his request he was given 60 days in which to prepare and serve case-made on appeal. On January 26, 1945, the case-made was served, settled, signed by the court, and filed in the office of the court clerk of McCurtain county. However, the petition in error with case-made attached was not filed in this court until March 29, 1945.

Tit. 22, O. S. 1941 § 1054, is as follows:

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

The defendant did not ask for an order extending the time beyond the 60 days provided by the statute to prepare and serve case-made and file same in this court, and no order therefor was entered.

In the case of Bouziden v. State, 78 Okla. Cr. 387, 149 P. 2d 99, we had before us the construction of this statute, where the facts were identical with those in the instant case. It was there said:

“Where the defendant had 60 days to perfect Ms appeal, and the case-made is signed and settled prior to that time, it is required that the same be filed within the 60 day ■ period.”

And:

“Where the case-made has not been filed within the time prescribed by law, this court does not acquire jurisdiction and the appeal will be dismissed on motion.” Powell v. State, 65 Okla. Cr. 250, 85 P. 2d 326; Jones v. State, 58 Okla. Cr. 342, 53 P. 2d 589.

And in the case of McKinsey v. State, 72 Okla. Cr. 59, 112 P. 2d 1112, we said:

“We are not in sympathy with a construction of a statute which technically prevents a defendant from having a hearing upon the merits of his case after an appeal to this court. But counsel for defendant have made no attempt to brief this case, although the same was filed here on the 12th day of February, 1940.”

In the instant case no response has been filed to the motion to dismiss, which was filed in this court on April 17,1946, and no brief has been filed on behalf of the defendant.

For the reasons above stated, the motion to dismiss the appeal is sustained.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    KENNETH ELMER CAMPBELL v. STATE.
    No. A-10614.
    Oot. 16, 1946.
    (173 P. 2d 584.)

      Willis & Manning, of Fairview, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

This is an appeal by the defendant from a judgment and sentence imposed upon him when he entered his plea of guilty in the county court of Garfield county to the offense of driving an automobile while under the influence of intoxicating liquor.

The defendant entered his plea of guilty on December 12, 1944, and the trial court thereupon fixed January 16, 1945, as the date for pronouncing judgment and sentence. On the latter date, the defendant through his counsel stated that he desired to offer evidence in mitigation of punishment, and the court thereupon permitted him to do so. The defendant testified that he had never been arrested before in his life or charged with any offense. That he lives with his widowed mother and fai*ms 160 acres of land. That he has two brothers serving in the armed forces of the United States, and that he was the sole person to carry on the farming duties. That he has several milk cows which he milks daily and sells the cream.

The defendant then introduced the testimony of several witnesses who testified that they were neighbors of defendant and had known him for several years. That his general reputation in the community where he resides for being a moral, sober and upright citizen was good. That the defendant, in the absence of his brothers in the army, had the sole duty of farming 160 acres of land and caring for a 69 year old widowed mother.

At the conclusion of the evidence offered on behalf of defendant, the county attorney made a statement to the court as to the facts surrounding the alleged offense as reported to him by the arresting officer. These facts were that the arresting officer saw the defendant pull on to Highway 81; that the car wobbled from one side of the road to the other, and that when defendant was stopped he was observed to be drunk. There was no accident involved.

At the close of the evidence, the trial court stated :

“On the showing made here, the court certainly is inclined to make the judgment and sentence the minimum. This court has, ever since this type of case was tried in the county court, followed a policy which I think is based on good public policy, or requiring in this type of cases that the defendant serve some time in jail. I do that for the reason I think it has a much stronger deterrent effect than a mere fine. A person can pay a fine; he is more likely to commit such an offense again than if he had to spend some time in jail. I am not inclined to make it a long jail sentence, but taking into consideration the fact he is operating a farm out here, I think he could make arrangements for the chores to be done for a short time; taking in consideration these facts, the Court will make this a minimum sentence. The defendant, based on his plea of guilty, will be found guilty, sentenced to five days in the Garfield county jail, and a fine of $25.00 and costs in the action; the defendant is ordered to surrender his driver’s license to the court for transmittal to the State Commissioner of Public Safety.”

Counsel for defendant present the question that the sentence assessed defendant was excessive and should be reduced by eliminating the five-day jail sentence. The Assistant Attorney General who appeared on behalf of the state stated in open court that he had no objection to this being done.

We agree that the facts surrounding this particular case are not so serious in their nature as to require q commitment to jail as punishment. It is hard for us to reconcile the testimony of all the witnesses that the defendant was a sober, upright citizen with the fact that he was driving his automobile while drunk on this occasion in question. No statement was made by the defendant concerning the facts surrounding his driving at the time in question. That issue was foreclosed by his plea of guilty. However, since the defendant is a first offender and has never been arrested before for any offense, considered together with his good reputation in the community and the unusual hardship which would have been inflicted upon his widowed mother in attempting to take care of the livestock and milk the large number of cows which were on the place, we have come to the conclusion that the assessment of a fine will be a sufficient lesson to impress upon the defendant the importance of staying sober.

It is not our purpose to condone offenses involving drunken driving, but from statements made by the trial court, the county attorney and others interested in this prosecution, it is evident that the county court would not have assessed the five-day jail sentence had it not been for a policy adopted by his office of forcing every person who pleads guilty to this particular offense to serve some time in the county jail.

Counsel for defendant in their brief raise one other point. They contend that the county court erred in directing defendant to surrender his driver’s license to the court for transmittal to the Commissioner of Public Safety, and contend that this is an additional punishment not authorized by law.

In Gentry v. Blinn, 184 Okla. 9, 84 P. 2d 27, the Supreme Court of Oklahoma held that the specific mandatory provisions set forth in 47 O. S. 1941 § 295 make it the duty of the Commissioner of Public Safety to revoke the license of any operator when the conviction in said cases (including the offense of driving an automobile while under the influence of intoxicating liquor) became final. See, also, Ashcraft v. State, 68 Okla. Cr. 308, 98 P. 2d 60.

Title 47, § 294, O. S. 1941, provides:

“Whenever any person is convicted of any offense in a court of record for which this Act makes mandatory the revocation of the operator’s or chauffeur’s license of such person by the Commissioner, the court in which such conviction is had shall require the surrender to it of all operators’ and chauffeurs’ license then held by the person so convicted and the court shall thereupon forward the same together with a record of such conviction to the Commissioner.”

In Ashcraft v. State, supra (98 P. 2d 67), this court stated:

“After final conviction of a party in a court of record, the court has the power, and it is its duty to require the defendant to surrender to it all operator’s or chauffeur’s licenses held by such person so convicted.”

Undoubtedly, it will work a hardship on the defendant, as it does on many defendants who have their drivers’ licenses revoked or suspended, but this is a matter for the Legislature to determine and is not a matter for the determination of this court. Under the statute hereinabove quoted, the trial court acted in accordance with the law in requiring the defendant to surrender his driver’s license to be forwarded to the Commissioner of Public Safety. The Commissioner, of course, is barred from taking any action until the conviction becomes final.

It is ordered that the judgment and sentence of the county court of Garfield county be modified by reducing the sentence from a $25 fine and five days in the county jail to a $25 fine, and the judgment and sentence as thus modified is affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    Ex parte BILL CANNIS.
    No. A-10736.
    Oct. 16, 1946.
    (173 P. 2d. 586.)

      Jack L. Spivey, of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for respondent.
   BAREFOOT, J.

Petitioner, Bill Cannis, filed in this court a petitioner for writ of habeas corpus on April 10, 1946, seeking his release from the State Penitentiary at Mc-Alester, where he is confined by reason of a judgment and sentence of the district court of Tulsa county, entered May 17, 1938, wherein he was sentenced to a term of life imprisonment in the State Penitentiary for the crime of rape in the first degree.

This petitioner has heretofore filed a petition for habeas corpus in this court, and the same was denied on June 9, 1943. Ex parte Bill Cannis, 77 Okla. Or. 71, 138 P. 2d 561, 562. The petition in that case was filed by petitioner himself while confined in the penitentiary, and without the assistance of counsel. In the opinion in that case it was stated:

“A copy of the judgment and sentence is not attached to the petition and the number of years imprisonment meted out to the petitioner upon his conviction is not set forth in the petition.”

He is now represented by counsel of his own choice, and a full and complete record is before us.

A petition for habeas corpus was filed in the district court of Pittsburg county, on March 20, 1946, by petitioner, and denied, and thereafter the petition now under consideration was filed in this court.

Attached to the petition is a transcript of the evidence taken before the district court of Pittsburg county, and copies of other records, including a copy of the information, the appearance docket, and the judgment and sen- ' tence of the Tulsa county district court.

A response was filed by the Attorney General on behalf of the respondent, the Hon. B. B. Conner, warden of the Oklahoma State Penitentiary, in which it was alleged that petitioner was held in custody by reason of the judgment and sentence of Tulsa county. It was contended in the response that the petition presents matters that can only be heard on appeal, and that could not be heard by habeas corpus.

An order to show cause was entered by this court, and a hearing had on May 22, 1946, at which time additional evidence and certain affidavits were presented, both by petitioner and by the state.

All of the above constitutes the record in the case to be considered in this hearing.

It is revealed that petitioner was born in Patris, Greece, August 15, 1899, and came to the United States at the age of 16 years. He worked in Greek restaurants in New York, and continually associated with people of Greek nationality. He bad attended school prior to leaving Greece and reached the sixth grade, but had never attended school after coming to America. He had some understanding of the English language, but could not understand court proceedings conducted in English. Petitioner left New York and went, to Dallas, Tex., but the record does not disclose the date. While living in Dallas, he evidently became associated with a woman by the name of Mrs. Winningham, who had three children, one a girl by the name of Mary Ann Opal Winningham, aged 10 at that time, and two younger children, one of whom was a deaf mute. The petitioner and Mrs. Winningham and her three children left Dallas and went to Tulsa, Okla., in the latter part of 1937, and lived together at different hotels in that city. Mrs. Winningham was considered by the proprietors of some of these hotels as the wife of petitioner, and is referred to as Mrs. Cannis. The record of the testimony taken at the trial of petitioner in Tulsa county is not a part of the record herein, counsel stating it was impossible to secure a copy of the same. However, there is attached to the petition a copy of the ex parte statement of Mrs. Millie Wormington, who was proprietress of the Brooklyn Hotel, 106% South Boston, where the parties lived, and the statement of Mary Ann Opal Whinningham, the prosecutrix. These statements were taken by Officers Robbins and Johnson after the arrest of petitioner, and while he was in jail.

The statement of Mrs. Wormington is as follows:

“Q. What is your name? A. Mrs. Millie Worming-ton. Q. What do you do, Mrs. Wormington? A. I am the proprietress of the Brooklyn Hotel, 106% S. Boston. Q. Do you know Bill Cannis? A. Yes. Q. When did you first meet him? A. About two years ago. Q. What were the circumstances? A. He and Ms wife, or at least I supposed it was Ms wife, came in to stay in room 12 at my hotel. They brought in three children, three girls, one of them was deaf and dumb, about four or five years of age, the others I don’t remember the ages. Q. How long did they stay with you? A. Mrs. Cannis and the two littlest girls did not stay quite the week out. Bill and Mary Ann, the oldest girl, stayed the week. Then they moved. A couple of days after they moved Mrs. Cannis came back. A couple of weeks after Bill and Mary Ann moved back into the same room. They moved from that room to room No. 1. Then I asked them to move because Mary Ann had no supervision at all. They were gone around three weeks and then Mary Ann came back up and begged me to take herself and Bill back and promised to be a better girl. Then I took them back and they had No. 1. Then her mother came and I judge she stayed four or five weeks and she left. Then she was gone for a short time and then came back and stayed practically all winter. Then Mrs. Cannis left again leaving Mary Ann there with Bill. Bill usually acted like a gentleman around the hotel but on two occasions he did bring women to his room, once while I was on my vacation and Mrs. Harp was in charge and once after I returned. After the second occurrence, I told him to move. When you were over there in November on an investigation (Nov. 26, 1937) I told you that he had been back the day before and was to come back but he never did come. Sometime around the first year, he and Mary Ann came back and stayed with me until February 14, when they moved. They were gone a week. During that time Mary Ann ran away from him. He moved back with me on the 21st. Mary Ann wasn’t with him. Q. During the time that Mary Ann and Bill Cannis stayed with you, they both occupied the same room and the same bed? A. Yes. Q. Did Bill Cannis say that Mary Ann was Ms daughter? A. Yes. Q. Do you know whether Mary Ann has started her periods or not? A. Yes, she has been a woman for over á year.”

The statement made by Mary Ann Opal Winningham was as follows:

“Q. What is your name? A. Mary Ann Opal Winningham. Q. How old are you? A. I’ll be eleven years of . age on May 19,1938. Q. Bo you know Bill Cannis? A. Yes. Q. How long have you known him? A. About two years and a half. Q. Where did you first meet him? A. Dallas, Texas. 'Q. When did you first come to Tulsa? A. I think it was about two years ago. Q. Was Bill Cannis at the hotel where you stayed? A. Yes. On the east side of Boston, I don’t remember the number. Q. When did you first start staying with Bill Cannis alone? A. About one year ago. We stayed at the Brooklyn Hotel 106% South Boston. Q. Did you occupy the same room and the same bed? A. Yes. Q. When was the first time you ever had intercourse with Bill Cannis? A. In Dallas. Q. Did you continue to have intercourse while you were staying at the Brooklyn Hotel? A. I don’t know. Yes, I know, but I’m not going to tell. Q. Are you sure you don’t know? A. Well, sometimes once a week and sometimes twice a week, and I enjoyed it. What position were you in during this act? A. Bill was on top of me. Q. Did he take any precautions? A. Yes, he used a rubber. Q. Why did you .like to stay with Bill Cannis? A. Because he let me do what I wanted to, and gave me money to go to the shows. Q. How long have you been menstruating? A. I think about eight months. Q. You told me this morning that you have not had intercourse with Bill Cannis since you started to menstruate. Is that true? A. Yes. Q; But you have continued to sleep with him since then, have you not? A. Yes. Q. What other hotels have you lived in with Cannis? A. At 306% S. Cheyenne and the Almeda Hotel in Bartlesville. Q. When do you think was the last time you had intercourse with him? A. Last August some time.”

A complaint charging petitioner with rape in the first degree was filed on March 1, 1938. He was arrested and arraigned before the examining magistrate on March 2, 1938, entered a plea of not guilty, his preliminary hearing was set for March 8, 1938, and he was remanded to jail. On March 8, 1938, a preliminary examination was had, and petitioner was held without bond to the district court. At this preliminary he was represented by an attorney, M. P. Houser, whom he had employed to defend him. The record discloses that another attorney, Preston C. Clark, had agreed to represent him, but the record does not disclose whether this was before or after the preliminary hearing.

The proceedings in the court of common pleas are disclosed by a copy of the appearance docket, which was as follows:

“1938
“March 1st Piling information and issuing warrant.
“March 2nd Defendant arraigned. Information read. Advised of rights. Pleads not guilty. Preliminary set for March 8th, 1938. Defendant ordered held without bond. Commitment issued.
“March 8th Case called. Both sides ready. State endorsed Ed Thrasher as a witness. Twelve witnesses sworn. Reporter Gordon. State introduces evidence and rests. Defendant demurs to evidence and demurrer overruled. Defendant stands mute. Upon hearing defendant ordered held to await jury trial in District Court. Defendant held without bond. Commitment issued.”

The record reveals that petitioner was brought before the district court for trial on the morning of May 12,1938, at 9:30 a.m., the date his case was set for hearing. At this time his counsel, M. P. Houser, was permitted by the court to withdraw from the case, and the public defender was appointed to defend him. He was returned to the jail, and according to his testimony the public defender did not con-suit with him, but he was returned to the court room at 1 p.m. and his trial started at that time. No request was made for an interpreter for petitioner, nor was one appointed. Petitioner in his testimony before the district judge at Mc-Alester testified that he did not have an opportunity to talk to the attorney who was appointed to represent him and that he told the court that he was not ready for trial, but that he was put to trial at 1 p.m. The record does not disclose that his attorney filed a motion for continuance either oral or written. It is disclosed by the record that on May 9, 1938, a praecipe for witnesses was filed by the attorney employed by him at that time, Mr. Houser. This praecipe was as follows :

“Please issue a Subpoena in the above entitled cause for Dr. Stockley, 2nd & Main; Mrs. Hamilton, 106% S. Boston; One named George — K C Pool Room 115 S. Main; One named Pete — Pastime Pool Room — Chriss—15 E. 2nd and Si Hamburger St. Gus Bohoo, Theodore Bahoo (Good Eats Club); Dadd Barum, 106% S. Boston; Christ Economicis, 311 S. Boulder; Pete Metevillis, 17 E. 2nd; One Watson, 311 S. Boulder; ‘Bill’ Okla. Coney Stand, 211 W. 4th to be and appear before the District Court of Tulsa County, at Tulsa in said County, on the 12th day of May, 1938, at 9 o’clock a.m., on behalf of Deft.”

The record does not disclose that a return was made by the sheriff of Tulsa county showing whether these witnesses were served, but it is disclosed by the testimony of Mr. Simms, the assistant county attorney who tried the case and who testified at the hearing before this court, that the only witnesses presented on behalf of petitioner were two character witnesses, and that the defendant himself did not testify.

Numerous affidavits were introduced in evidence, among them one by the president of the Hellenic Society,. a Greek organization in Tulsa. These affidavits show that the affiants were acquainted with petitioner, and that he was unable to speak and understand the English language, except to a limited degree, and that he could not transact business in the English language.

The attorney who represented petitioner on his motion for new trial, Q. L. Dickerson, made an affidavit that he had made numerous attempts to confer with petitioner in English but that he could not do so, and that it was necessary for him to consult with him through an interpreter, the Greek Orthodox Priest at Tulsa; that petitioner was uneducated and possessed a low degree of mentality.

The only attempt to refute these affidavits is the testimony of Mr. M. S. Simms, the assistant county attorney of Tulsa county, who tried the original case. We quote from his testimony, given at the hearing before this court:

“Q. After he said he was ready, did the defendant put on any testimony? • A. As I recall, there was one or two witnesses put on by the defense. The defendant himself did not take the stand. Q. Now, Mr. Simms, do you recall whether or not, either during the investigation of this case, while the defendant was in jail or during the trial, whether or not you had occasion to talk with him, in English? A. I am positive I talked with him in the jail, I can’t recall just what was said, but I remember Bill Cannis, I remember talking to him up there in jail, it is my habit to, all those, hardly any one gets in I don’t talk to him. Q. Did you have any difficulty in understanding his English he used talking to you? A. I did not. Q. Did he have any difficulty in understanding the English you used in talking to him? A. As far as I could tell, he did-n’t. I might say Cannis was a cook, that is his occupation. He worked in Tulsa, Oklahoma City, and many places. He was.engaged as a cook at the time this happened. Q. (By Judge Jones) He did withdraw the day of the trial? A. On May 9 Mi*. Houser on behalf of the defendant praecipe for witness. Q. (By Judge Jones) What about these witnesses, did they come? A. I do not recall. Might I say this: Warren is now in Japan. Mr. Houser about six months ago was sent to the home of broken-down-mentally, he is some 70, up to the 70’s. Preston C. Clarke also appeared for the defendant in some of the proceedings, on May 9th he was permitted to withdraw, as shown by the written order here, and on May 16th motion for new trial was filed on behalf of Bill Cannis by another attorney, Q. L. Dickerson. He makes an affidavit. And the motion for new trial, among other things, suggests that he needed an interpreter. * " * Q. In your opinion, and from your conversation with him, and from your knowledge of this law suit, do you know whether or not he could intelligently represent himself, to such a degree, he could appear in court and understand the proceedings had in English, the proceedings had in the court room where he was tried? A, I am entirely satisfied Bill Cannis knew what he was charged with, realized the seriousness of it. Whether or not he realized all of the court proceedings, I do not say, some I do not myself understand. Q. Will you say he did or did not understand the English language? A. I would not say he did not understand the English language. I would say this — that he was not as fluently spoken as some of the rest of us, you could understand what he was saying, I am satisfied, you might have to repeat once or twice, he could understand what you said.”

We have given a somewhat detailed statement of the facts by reason of the importance of this hearing. Briefs have been filed by petitioner and by the state. Petitioner has cited the following eases: State ex rel. Tucker v. Davis, 9 Okla. Cr. 94,130 P. 962, 44 L. R. A., N. S., 1083; Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461, 146 A. L. R. 357; Powell v. State of Alabama, 287 U. S. 45, 53 S. Ct. 55, 77 L. Ed. 158,159, 84 A.L.R. 527; In re Stephens, 81 Okla. Cr. 65, 160 P. 2d 415; Hawk v. Olson, 326 U. S. 271, 66 S. Ct. 116, 90 L. Ed. —; White v. Ragen, 324 U. S. 760, 65 S. Ct. 978, 89 L. Ed. 1348; Rice v. Olson, 324 U. S. 786, 65 S. Ct. 989, 89 L. Ed. 1367.

The Attorney General representing the state has attempted to distinguish the above cases, and has cited the following: Williams v. Commonwealth, 230 Ky. 327, 19 S. W. 2d 964; Henry Ching v. United States, 254 U. S. 630, 41 S. Ct. 6, 65 L. Ed. 447; Id., 9 Cir., 264 F. 639; United States v. Rosenstein, 2 Cir., 34 F. 2d 630, 14 A. B. R., N. S., 682; Commonwealth v. Flood, 302 Pa. 190, 153 A. 152; Jones v. Commonwealth, 238 Ky. 453, 38 S. W. 2d 251; Sizemore v. Commonwealth, 108 S. W. 254, 32 Ky. Law Rep. 1154.

Tn the brief of the state, the Attorney General has sought to distinguish the cases cited by petitioner, and in the reply brief petitioner has attempted to distinguish the cases cited by the state.

in justice to both parties, it may be said that the cases cited by each may in numerous instances be properly distinguished from the facts in the instant case. We have read all the cases, and it is unnecessary to unduly lengthen this opinion by setting out the distinctions. It may be said that each case must be determined by the facts and circumstances of that particular case, subject to the general rules of law that govern all.

It is a general rule, and has often been stated by this court, that a writ of habeas corpus will not be sustituted for appeal. Ex parte Hummingbird, 78 Okla. Cr. 33, 143 P. 2d 166; In re Sullivan, 82 Okla. Cr. 364, 170 P. 2d 260, and numerous other cases. This rule of course is recognized and will be followed.

It has also often been decided that in following the principle that every person is entitled to a fair and impartial trial, this court will give relief by habeas corpus if the facts are such that render the judgment and sentence void. Ex parte Robnett, 69 Okla. Cr. 235, 101 P. 2d 645; Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139; Ex parte Pennington, 71 Okla. Cr. 263, 110 P. 2d 923, 928; In re Davis, 78 Okla. Cr. 444, 150 P. 2d 367.

The construction of the “due process” clause of the Federal Constitution, Amend. 14, and Art. 2, § 7 of the Oklahoma Constitution, have been before this court in many cases. It is unnecessary to cite them. We have held that this court would follow the decisions of the United States Supreme Court in the construction to be placed upon the “due process’ clause of the Federal Constitution. Lyons v. State, 77 Okla. Cr. 197, 138 P. 2d 142, 140 P. 2d 248; Id., 322 U. S. 596, 64 S. Ct. 1208, 88 L. Ed. 1481.

The Supreme Court of the United States in its later decisions has been more liberal in its construction of the provisions of “due process”, as it applies to criminal cases than it has in the past. Johnson v. Zerbst, supra; Hawk v. Olson, supra.

We also consider it unnecessary to give a lengthy discussion of the “due process” clause and to cite and quote from the cases construing it either by the Federal or state courts. Quotations could be given which would sustain either view presented. Counsel for the state and petitioner have cited numerous cases as above outlined, but neither has cited the leading case from this court, which discusses fully the question here involved — the question of counsel being given sufficient time to prepare for trial in a capital case.' In that opinion, a full review of many authorities is given. We refer to the case of Goben v. State, 20 Okla. Cr. 220, 201 P. 812, 814. In this case, Judge Doyle, in rendering the decision, wrote an exhaustive opinion, in which it is said:

“Every person charged with crime, whether guilty or innocent is entitled to a fair and impartial trial — that is, a trial in accordance with the rules of law, and the principles of justice; and it is a duty resting upon the courts to see that this guaranty conferred by the Constitution upon every citizen is upheld and sustained. It is evident from the record that the defendant C. W. Goben was not accorded a trial in conformity to the laws of the state. * * *

“The granting or refusal of an application for continuance on the ground of want of time for the defendant’s counsel to prepare for trial is ordinarily discretionary with the trial court. However, the discretion which the trial court exercises must be judicial, not arbitrary, and must be exercised in conformity with the laws of the state.

“The right of the accused to the assistance of counsel in making his defense has long been regarded in this country as essential to the due administration of justice in criminal cases. Says Mr. Cooley:
“ ‘With us it is a universal principle of constitutional law that the prisoner shall be allowed a defense by counsel.’ Const. Lim. 334.
“In order that the accused may have the full benefit of this constitutional right, the Code of Criminal Procedure provides:
“ ‘If the defendant appear for arraignment, without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desires the aid of counsel. If he desires, and is unable to employ counsel, the court must assign counsel to defend him.’ Section 5773, Rev. Laws. (Tit. 22 O. S. 1941 § 464).
“The constitutional right of representation by counsel certainly includes a reasonable time within which to prepare for trial. In the ease of Lawson v. Territory, 8 Okla. 3, 56 P. 698, it is said:
“ ‘One accused of crime has the right to have the aid of counsel to defend him, and the constitutional guaranty that he shall have the right to the assistance of counsel means that he shall have the benefit of the best skill and thought that his counsel can give him; and an attorney cannot, under the most favorable circumstances, properly defend one charged with murder, without having a reasonable time to prepare his case for trial. We are of the opinion that the trial court, in compelling the defendant to go to trial the next day after the indictment was returned, and immediately upon the overruling of the demurrer, exceeded its discretionary power. The defendant should have been granted further time.’
“In Hensley v. Com., Ky., 74 S. W. 677, the conviction for murder was reversed because the court Tefused to grant a continuance and forced the defendant into a trial on the day the indictment was found. In State v. Collins, 104 La. 629, 29 So. 180. 81 Am. St. Rep. 150, four days was held to be too short a time in which to prepare a defense in a murder case. In the opinion it is said:
“ ‘This was a capital case. The life of a human being was at stake, and for the time being it was sheltered by the presumption of innocence. Great deliberation — an utter absence' of precipitancy — should have characterized .every movement of the court leading up to the conviction. “The law travels with a leaden heel, but strikes with an iron hand,” is a maxim pregnant with obvious meaning. In this instance, it doffed the “leaden heel,” yet struck with the iron hand. It is not unlikely that the previous attempt at lynching, and apprehension felt by the officers of the law of a second attempt being made in case of delay in bringing the accused to trial, may have influenced the situation to his detriment and caused the undue haste complained of. But this cannot be accorded the weight of justifying departure from the rule of calm deliberation. The right “to have the assistance of counsel” is one conferred by the Constitution itself. Reasonable time to prepare for his defense should have been allowed the counsel, who had, by direction of the court, undertaken its responsibility. Only in this way could their “assistance” be made effective.’
“We have examined all the cases accessible bearing upon this question, and the rule appears to be well settled that, under the constitutional guaranty that the accused shall have the right to the assistance of counsel, counsel appointed to defend the accused in a capital case must be given a reasonable time to prepare for trial, to investigate the facts, and examine the law applicable to the case, and this without being forced to a showing as to witnesses, and what is expected to be proven by them, it may be stated here and in this connection that the failure of counsel appointed to defend to take 24 hours to plead, and to specifically demand that the defendant be accorded these constitutional rights, is strong and convincing proof of the necessity of the rule.
“In cases of this kind, where the defendant is to be placed on trial for his life, he should have the advantage of every right which the law secures to him upon his trial. A fair and impartial administration of the laws is one of the most sacred rights of the citizen, and it is the duty of trial courts in the administration of the law to see that the accused, however guilty he may be, shall have a fair trial according to the due and orderly course of the law, and this duty is emphasized in a capital case.
“Under the circumstances of this case, as shown by the record, counsel appointed to defend, was not allowed sufficient time to prepare for trial, and the refusal of the court to continue the case, at least to another day in the term, was clearly an abuse of judicial discretion. It follows that forcing the defendant into trial against his objections on the same day that the information was filed and counsel appointed to defend was errer prejudicial to the substantial rights of the defendant.”

We recognize the facts in the Goben case may be distinguished from the facts in the instant case in a number of particulars, but this, as above stated, is true in all cases. The general principles of law announced in that case remain the same, and it is the application of this law to the facts in the instant case with which we are concerned.

In the Goben case a motion or affidavit for continuance was filed by the defendant. Here no written motion for continuance was filed, but petitioner testified that he told the court he was not ready for trial, and the record shows that when asked by the court if the defendant was ready for trial, his attorney answered: “We are not ready, but we are ready to go to trial.” In the Goben case, the defendant was arrested on March 31, 1921. He was taken directly from Comanche county to Oklahoma county, and was not returned to Comanche county, where he was to be tried, until April 12, 1921. He did not have an opportunity to secure counsel in Oklahoma county until April 5, 1921, when his father, of Lawton, Comanche county, secured an audience for him with an attorney. He did not have any counsel except about 15 minutes on the day of the preliminary hearing, April 8, 1921. The county attorney of Comanche county presented his affidavit in which he stated that five or six days before the time he had talked with Mr. A. J. Burton, an attorney of Lawton, and that he stated that he thought he would represent C. W. Goben, and that he gave him a letter to permit his seeing the defendant, and that Mr. Burton was present at the preliminary hearing.

It is true that the Goben case was before this court on appeal, and the instant case is here by habeas corpus. The record in the instant case reveals that petitioner was a foreigner, uneducated, and of low mentality. That he had a very limited knowledge of the English language, and that he did not understand court procedure and was not able to understand the testimony that was being given against him. No interpreter was appointed by the court for petitioner. The witnesses named in the praecipe filed by his attorney three days before his trial were not present to testify, and no return made by the sheriff to show that they were served. A number of these witnesses have Greek names, and nothing appears in the record to show that the public defender talked to any of them. In fact, it is disclosed that he would not have had an opportunity to do so, if they were not present, by reason of being forced to trial on the day of his appointment. The defendant himself was not placed upon the witness stand. It is further revealed by the record that the prosecutrix had contracted a venereal disease, and that petitioner had no such disease. By the statement of the prosecutrix, it is shown that all of the relations between her and the petitioner were agreeable to her, and that she “enjoyed it.” This testimony, while not a defense under the law, could have been very material in the reduction of punishment.

It further appears that counsel who had been employed by petitioner and paid by him, as stated in his affidavit, was permitted to withdraw from the case on the very day it was set for trial, and the court appointed the public defender of Tulsa county to represent petitioner, and he was forced to trial immediately, and on the same date. No attempt was made to secure a continuance. No time was asked for preparation of the case, or to confer with the witnesses. This case should not have been tried as “just another case” by the public defender. The defendant was charged with a capital offense, and was given a life sentence by the jury. We cannot believe that such punishment would have been inflicted if a proper defense had been presented, as the record in this case discloses could have been presented. The defendant did not have a fair and impartial trial, as he was entitled to under the law and the Constitution. He has already served more than eight years in the penitentiary.

We have reached the conclusion that petitioner was denied fundamental rights in the proceedings before the district court of Tulsa county, as above set forth, and that by reason thereof, the judgment and sentence was pronounced without due process of law, and that said judgment and sentence should be vacated and set aside.

It is therefore ordered that the judgment and sentence pronounced against the defendant in cause No. 8624 in the district court of Tulsa county be, and the same is hereby vacated and set aside.

It is further ordered that the warden of the State Penitentiary at McAlester, Oída., be and he is hereby commanded forthwith to deliver the custody of the petitioner, Bill Cannis, to the custody of the sheriff of Tulsa county, Okla.; and it is further ordered that the said sheriff of Tulsa county hold the said Bill Cannis pending the disposition of the charge filed against him in cause No. 8624 in the district court of Tulsa county, or until he is otherwise discharged, as provided by law in such cases.

JONES, P. J., and DOYLE, J., concur.


text:
    EMIL WIRTH v. STATE.
    No. A-10611.
    Oct. 23, 1946.
    (173 P. 2d 747.)

      Dan Mitchell, of Enid, for plaintiff in error.
    Mae Q. Williamson, Atty. Gen., and Harry McKeever, Co. Atty., Garfield County, of Enid, for defendant in error.
   BAREFOOT, J.

Emil Wirth was convicted in the county court of Garfield county of the crime of driving a motor vehicle upon the public highways of that county while under the influence of intoxicating liquor, and sentenced to pay a fine of $200 and serve six months in the county jail, and has appealed.

The charging part of the information is:

“* * * that on or about the 17 day of August, 1944, in the said county of Garfield and state of Oklahoma, one Emil Wirth did then and there unlawfully, wilfully and wrongfully drive and operate a certain motor vehicle, to-wit: a 1936 Studebaker sedan, 1944 Oklahoma license No. 8-7089, over and upon a public highway in the county of Garfield, state of Oklahoma, to-wit: in front of Mike’s Place, North Enid, Oklahoma, on U. S. Highway No. 81, while he, the said Emil Wirth, was under the influence of intoxicating liquor.”

The state introduced two witnesses. The defendánt did not take the stand, and put on no testimony, although there were two parties in the car with him at the time he was arrested.

Bill Large, a sergeant in the State Highway Patrol, testified that shortly before 9 p. m. on the date in question and north of Enid, in Garfield county, he observed a car driving north on the highway, on the wrong side of the road; that he observed the car for about one mile, during which time one car was stopped and at least two others were forced completely off on the shoulder. That these cars were all going south on the highway. That the car was weaving back and forth, and finally stopped in front of Mike’s Beer Parlor, on Highway 81. That witness was unable to stop the car sooner, on account of the on-coming traffic. That he and his fellow-patrolman went up to the car, and found that defendant was driving. That defendant had all the characteristics of a person known to be under the influence of intoxicating liquor. Witness asked him to get out of the car. He could not walk straight, his speech was thick and incoherent, his face flushed and his eyes watery. That he denied that he had been drinking, but admitted he had drunk “ a few beers.”

Wallace Strange, the other highway patrolman, corroborated the testimony of Sergeant Large.

Counsel for defendant has filed a brief in his behalf, in which he admits that the evidence in this case is sufficient to justify the jury’s returning a verdict of guilty; and his only contention is that, since there were no aggravating circumstances connected with the case, no wreck or any other condition or circumstance which would in any way call for the punishment fixed by the jury, that the same is excessive, and clearly the result of bias and prejudice on the part of the jurors. He calls attention to the fact that defendant is a Bohemian farmer, about 55 years of age. He cites no authorities in support of his contention.

This case was tried before a jury, which found defendant guilty and fixed his punishment. This court has often held that a verdict of the jury will not be set aside when supported by substantial evidence, but only where the evidence is insufficient to sustain the judgment and sentence. Wehr v. State, 79 Okla. Cr. 426, 155 P. 2d 731; Hood v. State, 80 Okla. Cr. 175, 157 P. 2d 918; Wirth v. State, 79 Okla. Cr. 59, 151 P. 2d 819.

The case of Wirth v. State, supra, is a case in which this same defendant, Emil Wirth, was convicted in the county court of Garfield county on a charge of driving a motor vehicle upon the public highways of Garfield county, while under the influence of intoxicating liquor, and the case was affirmed by this court. The conviction in that case was for an offense committed on December 6, 1941. There was evidence in the case of defendant having been previously convicted in the municipal court of Enid on offenses similar to the one there and here presented.

Under this statement of facts, we do not deem it proper to modify the judgment and sentence assessed in the instant case. It is a severe punishment, but the defendant could have been charged as a second offender, and under the statute would have been guilty of a felony, and his punishment could have been assessed at a term in the penitentiary. 47 O. S. 1941 § 93.

It is true that no injury or damage resulted, but this was not due to any act on the part of defendant. If others had not yielded the right of way, damage or injury to the person could'easily have been sustained. No doubt the penalty assessed by the jury in this case will bring defendant to his senses and hereafter he will refrain from driving a motor vehicle while under the influence of intoxicating liquor.

The record reveals that defendant had a fair and impartial trial. The instructions of the court were in accordance with the laws, and no objection was made thereto.

Finding no error, the judgment and sentence of the county court of Garfield county is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    HENRY SAMFORD v. STATE.
    No. A-10624.
    Oct. 23, 1946.
    (173 P. 2d 749.)

      Eobert O. Swimmer, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam Lattimore, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

This is ah appeal from the court of common pleas of Oklahoma county from a conviction for the crime of illegal possession of intoxicating liquor.

The Attorney General has filed a motion to dismiss the appeal for the reason that judgment and sentence was pronounced on January 15, 1945, at which time the defndant was given 30 days to make and serve case-made, the state to have three days thereafter to suggest amendments, and' the same to be settled on three days’ notice in writing by either party. That the case-made was served, signed and settled and filed in the office of the clerk of the common pleas court on February 10, 1945, which was considerably less than the 30 days authorized by the court in the order made at the time the judgment was entered.

It is further alleged that no extension of time in which to file the appeal was ever granted. The appeal was not filed in the Criminal Court of Appeals until May 3, 1945, which was long after the 60 days allowed by statute had expired.

In the response filed to the motion to dismiss, counsel for defendant does not deny any of the facts alleged in the motion to dismiss, but he asks this court to strike the motion to dismiss from the files for the reason that said motion was filed more than 11 months subsequent to the date that the defendant filed bis petition in error and brief on the merits, and tbe state is therefore precluded by reason of laches from alleging that the appeal was not perfected within the statutory period.

An examination of the record sustains the statement of facts as alleged in the motion to dismiss.

In the recent case of Miller y. State, 78 Okla. Cr. 112, 144 P. 2d 120, 121, it is stated :

22 O. S. 1941 § 1054 in the Code of Criminal Procedure, provides that:
“ ‘In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, However, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days.’
“In the recent case of Bullard v. State, 73 Okla. Cr. 238, 119 P. 2d 870, the second and third paragraphs of the syllabus read as follows:
““A failure to file the appeal in the appellate court within the time allowed by law is fatal to the appeal, and the appellate court has no discretion to hear and determine appeals on the merits when they are not taken within the time prescribed by statute.’
“ ‘In misdemeanor cases, the appeal must be taken within 60 days after the judgment is rendered, provided, however, that the trial court or judge may for good cause shown extend the time in which an appeal may be taken not exceeding 60 days. Section 3192, Sts. 1931, 22 Okla. St. Ann. § 1054. When this is not done within the time prescribed by said section, this court does not acquire jurisdiction of the appeal, and such appeal will be dismissed.’
“ ‘And in the concluding portion of said opinion it is stated:
“ ‘There is no provision of law which vests this court with discretion to hear and determine appeals on the merits when they are not taken within the time prescribed by statute. Newton v. State, 38 Okla. Cr. 217, 260 P. 84; King v. State, 68 Okla. Cr. 145, 96 P. 2d 95.’ See, also, McKinsey v. State, 72 Okla. Cr. 59, 112 P. 2d 1112; Lee v. State, 74 Okla. Cr. 358, 126 P. 2d 94.”

This court is reluctant to dismiss an appeal and would much prefer to decide this case on its merits. However, we only acquire jurisdiction to determine the appeal when it is filed within the statutory period. The Attorney General has called our attention to the jurisdictional defect by filing the motion to dismiss prior to the time the case was set for oral arguments on its merits. Under such circumstances, it is not within our discretion to deny the motion to dismiss.

For the reasons hereinabove stated, the purported appeal herein not having been filed within the statutory period after rendition of the judgment, should be dismissed and the cause remanded to the trial court, with direction to enforce its judgment and sentence. It is so ordered.

BAREFOOT,J-., concurs. DOYLE, J., not participating.


text:
    JOHN L. CLARK v. STATE.
    No. A-10612
    Oct. 23, 1946.
    (173 P. 2d 750.)

      W. O. Moffett and F. E. Riddle, both of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant John L. Clark was charged in the district court of Tnlsa county with the crime of robbery, was tried, convicted and sentenced to serve 10 years in the State Penitentiary and has appealed.

No brief was filed on behalf of defendant, and the only contention presented by the record is that the evidence is insufficient to support the judgment of conviction.

The defendant was jointly charged with one Charles Taylor with robbing E. O. Ferch, an aged man who lived in a grocery store. In the early morning of July 15, 1944, while E. O. Ferch was asleep in the grocery store, he was awakened by being hit with a hammer. He was struck oyer the head four or five times before being-knocked unconscious. A gun which was laying under his pillow and a small amount of cash which was in the cash register were taken. The hammer allegedly used by the robbers was left near the store and was identified as being the hammer which had been kept at the house of Bob Ferch, brother of E. O. Ferch. where the defendants were staying. Tbe defendant was arrested a few hours after the robbery and had in his possession a gun which the old gentleman who had been robbed testified was the one taken from him.

Two police officers testified that they saw the defendant and his codefendant Taylor walking along the street at 4:10 a.m. in the vicinity of the Ferch grocery. The officers stopped them and asked them a few questions and allowed them to proceed. Another policeman testified that he went to the place where the defendant Clark was staying about 8 a.m. the morning of the robbery. He found a shirt hanging in the bathroom that had just been washed. Two buttons were missing from the shirt. The officers at the scene of the robbery found a shirt button under the bed of Mr. Ferch, and the button and shirt found at the place of defendant were introduced in evidence to show that the button found at Ferch’s grocery corresponded with the buttons that were on the shirt which was found at the place where defendant was staying. The proof further showed that the codefendant Chaides Taylor was staying at the home of Bob Ferch, the brother of the man who was robbed, while he was away in California. That early in the evening of the night of the robbery, the two defendants had been drinking.

One of the daughters of Bob Ferch, the man who was in California, testified that the eodefendant Taylor called her about 9:30 the night of the robbery and said that the Mistletoe Express had brought him a package from Oklahoma City, and that he did not have the money to pay for the package and asked if she would pay for it if he would send the express man by to get it. That the defendant said that they had been down to her Uncle Ed’s (the man who was robbed), but that he had gone to bed, and they could not rouse him. She further testified that about 1:30 a. m., the defendant came to her house and said he was the Mistletoe Express man, and that he had been lost and had been unable to find her house earlier in the evening. That she paid him at that time $5.38 allegedly for bringing a package from Oklahoma City for the codefendant Taylor.

The stepdaughter of Bob Eerch testified that she went over to her stepfather’s house early the morning her uncle was robbed. That when she arrived there, she found a freshly washed khaki shirt in the bathroom, and there was bloody water dripping from it. The testimony of the man who was robbed showed that he scuffled with his assailants before he was finally knocked unconscious, and it is contended by the state that in the scuffle the shirt worn by defendant had gotten bloody. The pearl button which was found at the store, and the pearl buttons on the shirt were of a peculiar make and were identical.

Oscar Cisk testified that early in the morning of -July 15th, while it was “dusky dark,” he saw the defendant and another man in the alley beside the Eerch store. The defendant was wearing a khaki shirt and dark trousers and had something in his hand that looked like a poker. That the defendant and the other man proceeded on up the street.

At the close of the state’s case, the defendant demurred to the evidence, and upon the demurrer being overruled, the defendant rested his case without offering any evidence in his behalf.

This court will not reverse a case for insufficiency of the evidence unless we can say that there is no substantial evidence in the record upon which the verdict could he based.

Here the defendant was seen in the vicinity of the grocery store just before, and again just after, the robbery occurred. When he was arrested he had the gun which had been taken in the robbery, and he had just finished washing is shirt, the buttons of which were identical to the peculiar pearl button that was torn off the robbers by Mr. Ferch at the time he was slugged. There were the further circumstances that the defendant and his codefendant Taylor were familiar with the grocery store, and the fact that the old man who lived in the store was almost completely deaf. The hammer used in the robbery had come from the Bob Ferch home where defendant had spent the night with the codefendant. In the absence of any evidence on behalf of defendant, the testimony of the state was sufficient to require submission of the case to the jury for their determination of the guilt or innocence of the defendant.

The judgment of the district court of Tulsa county is affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.