text:
    SYL. KLEIN v. STATE.
    No. A-2794.
    Opinion Filed December 14, 1918.
    Rehearing Denied January 6, 1919.
    (176 Pac. 414.)
    1. CONTINUANCE — Denial—Grounds—Absence, of Counsel. Where one of three counsel employed to defend the accused is absent at the time the case is called for trial, attending another court, an application for a continuance on the ground of the absence of such counsel is properly denied, where the other counsel employed are present in court to defend the accused and are familiar with the details of the case.
    2. SAME — Appeal and Error — Discretion of Trial Court. Motions for a continuance are addressed to the discretion' of the trial court, and the appellate court may scrutinize the entire record in order to determine whether the trial court has abused its discretion in overruling a motion for a continuance.
    3. ' APPEAL AND ERROR — Remarks of Judge — Motion and Exception. Where it is claimed that the remarks of the trial judge were prejudicial to the defendant, a motion should be interposed to withdraw such remarks from the consideration of the jury, and, if such motion be overruled, then proper exception should be taken to the court’s action. The trial court should be afforded an opportunity to withdraw from the consideration of the jury alleged improper remarks made during tlie progress of tlie trial, and, where such an opportunity is not given the trial court, the alleged misconduct must amount to a deprivation of some constitutional or statutory right guaranteed to tlie defendant before a judgment of conviction will he set aside upon such ground in this court.
    4. SAME — Misconduct of Trial Judge — Effect. This court is not inclined to view with favor alleged misconduct of the trial court committed at the invitation of defendant's counsel.
    5. EVIDENCE — Larceny—Severance. In a prosecution for larceny of live stock, certain evidence offered by the defendant to prove that a eodefendant had admitted to several persons, who were called as witnesses, that he fsaid eodefendant) had been stealing other 'ive stock and that the defendant knew nothing about it. is properly excluded, where a severance lias been taken and sncli co-defendant is not on trial, nor a witness in the case.
    6. LARCENY — Live Stock — Sufficiency of Evidence. Nor evidence held sufficient to sustain a conviction, see body of opinion.

      7. APPEAL AND ERROR — Burden of Showing Error — Briefs. Tlie burden is upon the appellant, not only to assert that error occurred í¡t tlie trial, hut to support such assertion by both argument and authority.

      Appeal from District Court, Pontotoc County; George C. Crump, Assigned Judge.

      ' Syl Klein was convicted of larceny of live stock and sentenced to serve a term of two years in the state penitentiary, and appeals.
    Affirmed.

      Crawford & Bolen, for plaintiff in error.
    N P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

Among other assignments of -error relied apon to reverse this judgment is the refusal of the court to grant a continuance on account of 'the absence of C. C. Williams, a lawyer employed to defend the accused, who was at the time of the application in attendance before the Supreme Court in Oklahoma City.

The application shows on its face that, in addition to the said C. C. Williams, the defendant had also employed the law firm of Crawford & Bolen to assist in his defense, and that the said. Crawford & Bolen were present in court and presented the application for a continuance. The application was to continue the case for the term, or until a later day in the term. The record shows that the Hon. George C. Crump, the regular judge of the Ninth judicial district, had been assigned to hold court at Ada, Pontotoc county, in the Seventh judicial district for the period of two weeks, commencing on Monday, the 21st day of Febru-ray, 1916. This application was presented on the 29th day of February, 1916. To have granted a continuance, there-force, would have meant practically to continue the case beyond the term for which the trial judge had been assigned.

As heretofore repeatedly held by this court, applications for a continuance áre addressed to the discretion of the trial court, and that court’s action in overruling such a motion will not be disturbed unless it appears that there-has been a manifest abuse of discretion therein. It appears from the face of the motion that one of counsel who had been employed to defend the accused exercised the option of appearing in another case in which he was employed to the exclusion of this case. The accused, however, had remaining two able counsel to defend him, who appeared in the trial court and, as the record discloses, protected his rights at every step during the trial.

In order to determine whether or not a trial court has abused its discretion in overruling such a motion as this, the appellate court may scrutinize the entire record for that purpose, and if it appears from the record that the court’s action did not amount to a deprivation of the right of counsel to the defendant, but on the contrary, it clearly appears that counsel who represented defendant were familiar with the details of the case and were prepared to protect the defendant’s rights throughout the trial, it cannot be said, under such circumstances, that there was an abuse of discretion in overruling the motion for a continuance.

In the case of Payne v. State, 10 Okla. Cr. 314, 136 Pac. 201, it is held:

“An application for continuance, for the term, on the ground of the absence of leading counsel, is properly denied, where the defendant is duly represented by his other counsel.”

The Payne Case is directly in point and is decisive of the question here presented relating to the alleged error in overruling the motion for a continuance.

It is further contended that the trial judge, greatly to the prejudice of the defendant, made certain remarks which clearly conveyed to the jury the impression that he believed the defendant to be guilty.

The matter most complained of is contained in the following excerpt from the record as part of the cross-examination of the witness George Pryor:

“Q. They were using something like a beef a day in that shop, weren’t they? A. Yes, sir.
“Q. And at the time that this beef came in they just had a beef and half that morning early before you went to delivering? A. I said about half beef besides this, maybe little over.
“Q. That make a beef and half? A. Yes.
“Q. This beef a big one or little one? A. Medium size.
' “Q How do you remember this particular morning, when beef comes in there practically every day? A. Because little bit out of the ordinary for one to be in there that early in the morning at the back door.
“Q. Didn’t you ever unload at the back door? A. Never did while I was there.
“Q. Can you give the jury the reason why you go to the back door to unload a beef when you cannot tell the difference between one beef and another?
“By Mr. Bullock: Objected to as argumentative.
“By the Court: Sustained.
“By Mr. Bolen: Exception.
“Q. And he said he got it out of Erwin’s pasture? A. Got it out of Erwin’s pasture.
“Q. Didn’t he say he got it out at Erwin’s? A. Said got it out of Erwin’s pasture.
“Q. That all he say about it? A. All I remember of.
“Q. Erwin had lots of cattle? A. I don’t know.
k
“Q. Harry never said whether bought or stolen? A. No, sir.
“Q. And Syl never asked him whether bought or stolen it? A. I never heard.
“Q. And told Syl, said, ‘Better get rid of the hide’? A. I never heard him say those words.
“Q. Say, ‘We will put the 'hide in the refrigerator’? A. Said, ‘We will put it in the top of the refrigerator.’
“Q. Big glass there? A. No, sir.
“Q. Top of the refrigerator has not got a glass on it? A. No, sir.
“Q. Put hide up there? A. Where the ice was.
“Q, You suspicion - anything then? A. I did.
“Q. You suspicioned what? A. I thought it out of the ordinary for him to put it up there.
“Q. That all you suspicion? A. I thought it was stolen.
“Q. You thought it was stolen? A. Yes.
“Q. After you thought this beef was stolen, you did not ask Syl whether it was stolen or not?' A. I did not.
“Q. Did not ask Harry? A. I did not.
“Q. You and Harry close friends, very intimate? A. Not particular.
“Q. Did you run together all the time? A. Not .all the time.
“By Mr. Bullock: Objected to as repetition.
“By the Court: Sustained.
“By Mr. Bolen: Exception.
“Q. You say you shipped some of that beef off yourself? A. I helped wrap it to ship.
“Q. You know you violating the law when you helped ship stolen beef?
“By Mr. Bullock: Objected to; no proof he knew it, working there in the shop.
“By Mr. Bolen: Said he suspicioned it.
“By Mr. Bullock: Suspicion and know a thing two different propositions.
“By the Court: Sustained.
“By Mr. Bolen: Exception.
“Q. You helped deliver and scatter that beef over. town ?
By Mr. Bullock: Objected to as immaterial.
“By the Court: Sustained.
“By Mr. Bolen: Exception.
“By Mr. Bolen: If I cannot cross-examine this witness, we just as well withdraw our plea.
“By the Court: Immaterial to me whether you do or not, proceed with this case. The object of cross-examination is to elicit the truth. To see whether the witness telling the truth or falsehood, and not to abuse him or anything of that kind, but for the purpose of eliciting the truth.
“By Mr. Bolen: If I have asked a question that is disrespectful, I would like to have the court point it out.
1 “By the Court: All the way through, your examination of the witness has been indicative that this witness was not telling the truth and that he was a particeps criminis in the crime.
“By Mr. Bolen: That is what I am trying to prove, that he saw all these circumstances and he went ahead.
“By the Court: Take a boy 20 years old working around a butcher shop, he will do lots of things that a man your age or my age may not do.”

Other instances are disclosed in the record wherein counsellor the defendant and the trial judge engaged in considerable argument back and forth. Counsel endeavored to convince the trial judge that his rulings on the admissibility of evidence when against the defendant were incorrect. The judge, on the other hand, in response to counsel’s argument, stated his reasons for so holding. The matters here complained of were the results of these col-loquys between counsel and trial judge, and occurred in .most instances after the court had ruled upon the objection and counsel for defendant had taken his proper exception. The excerpt above incorporated shows clearly that, at the time this particular colloquy occurred between counsel for the defendant and the trial judge, which is now claimed to be so prejudicial to the substantial rights of this defendant, no motion was made to withdraw the remarks from the consideration of the jury. Farther along in the record, however, we find that the trial judge did instruct the jury that “side-bar* remarks” between counsel and the court were not to be considered by them.

If the trial judge was guilty of any misconduct in making the remarks complained of, it was done at the invitation of defendant’s counsel, and this court is not inclined to view with favor alleged errors that are invited in this manner.

The defendant is entitled to a fair and impartial trial, and the trial judge should not assume the role of prosecutor and inject into the record remarks and insinuations that clearly indicate a belief in the defendant’s guilt, and if this is done, and the record shows that the defendant was prejudiced thereby, this court has repeatedly held that a judgment of conviction will be reversed because of such misconduct. But it is also incumbent upon counsel to respect the rulings of the trial judge, and to be satisfied by making a record for appeal by taking the proper exceptions in the trial court when the court has ruled adversely, without entering into a discussion of the merits of the court’s ruling, and where counsel prefer rather to argue with the court, and thus invite a reply to which no exception is taken at the time, the alleged misconduct thus provoked and invited will not be considered grounds for a reversal of a judgment of conviction.

Also, it is contended that the court erred in excluding certain evidence offered by the defendant. The evidence to which objection was sustained was offered to' prove that one Harry Wright, who was a partner with this defendant in the butcher business in the city of Ada, had admitted to' several persons who were called as witnesses that he (Wright) had been stealing other cattle, and that the defendant, Klein, knew nothing about it. The court excluded this testimony on the theory that it was hearsay and would not tend to disprove the guilt of the defendant of the particular crime charged. The rulings of the trial court were correct; Wright was not offered as a witness.

In the case of Dykes v. State, 11 Okla. Cr. 602, 150 Pac. 84, this court held:

“A defendant who is being tried on a criminal charge is not entitled to introduce proof which has for its purpose the establishing before the jury the fact that some other person has confessed that he commtted the crime, and that the defendant had nothing to do therewith and was not concerned therein.”

It is also contended that the judgment of coWiction is not sustained by sufficient evidence.

The theory of the state was that the defendant and one Harry Wright, who was his partner in the butcher business in the city of Ada, were acting together in the theft of the steer, the property of Pete Erwin, for which theft this defendant was convicted. The defendant denied any knowledge of the. larceny of this animal, although he paid Erwin for the same some time after the theft was discovered, and he also paid Erwin for a cow and a hog that had been previously stolen from the same premises and sold through their butcher shop.

One state witness testified that he delivered meat for the defendant and Wright, and that about the time that this steer was stolen he went to the butcher shop one morning about 5:30 and found the defendant and Wright unloading a steer that answered the description of Erwin’s stolen steer, at the back door of the butcher shop, and that Wright told the defendant in the presence of this witness that the butchered animal had come from Erwin’s pasture, which was located about a half mile from the slaughterhouse used by defendant and his partner, Wright.

Defendant helped conceal the hide of the animal in that part of the refrigerator used for storing ice, and also, directed that the head be put in the furnace and burned up.

Defendant denied any knowledge of Wright’s having stolen such an animal from Erwin’s pasture until sometime afterwards, at which time he says that he paid Erwin, for the same, although having no connection whatever with the larceny thereof. The argument is advanced here that the evidence on the part of the state only makes out a case of receiving stolen property; but it is th« opinion of the court that the jury was authorized to conclude from the evidence introduced that Wright and Klein were engaged in the larceny of animals for slaughtering purposes, and were stealing and selling the same through their butcher shop in Ada, and that the larceny of this particular' animal was accomplished with full knowledge and consent of both said parties; one aiding and abetting the other therein.

The young man who delivered meats for the defendant and his partner, Wright, testified that it was customary for them to unload the butchered cattle at the front door of the butcher shop, and that the fact that on this' particular morning defendant and his partner, Wright, were found in the act of unloading a butchered steer at the back end of the shop, made him suspicious that something was wrong.

This circumstance, in connection with the fact that the defendant helped conceal the hide and ordered the head of the animal to be burned so that it could not be identified, indicates clearly that there was an agreement between Wright and Klein to meet at the butcher shop very early on the morning that this steer was butchered, one party knowing as well as the other that a stolen animal was to be brought into the shop on that occasion, and its butchered carcass to be sold as meat; such a conclusion is the only reasonable inference to be drawn from the facts and circumstances in evidence and, in the opinion of the court, sustains the theory that the defendant was guilty of aiding ■ and abetting in the larceny of this particular steer as charged in the information.

Other alleged errors are complained of. Matters are asserted to be prejudicial to this defendant in the brief without the citation of a single authority to support the same. Defendant was ably and energetically defended in the trial court by the same counsel who represent him in this court, and we are inclined to believe that, if authorities had existed to support the numerous contentions relied upon for a reversal, the same would have been cited in the brief. The crowded condition of the docket of this court makes it practically impossible for this court to search the books for authorities to support assertions of error made in behalf of the appellant. The burden is upon the appellant, not only to assert that error occurred in the trial, but to support such assertions by both argument and authority.

We have made a careful examination of the record and have considered all the errors assigned as grounds for reversing the judgment, and the conclusion is reached that the defendant received a fair trial and was rightfully convicted, and that none of the alleged errors are of sufficient importance or so prejudicial as to authorize a reversal of the judgment of conviction.

It is therefore ordered that the judgment be affirmed.

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


source: Caselaw Access Project

author: ARMSTRONG, J.

license: Public Domain

text:
    WES COLE v. STATE.
    No. A-2351.
    Opinion Filed January 11, 1919.
    (177 Pac. 129.)
    1. INDICTMENT AND INFORMATION — Charge in Conjunctive. An information for a violation of section 220-1, Roy. Laws 1910, may properly charge in one count in the conjunctive the several acts ■prohibited by said section, and a legal conviction had upon proper proof that the defendant did either one of the several acts interdicted by said section.
    2. SAME — Language of Statute. An information for a violation of section 2204, Rev. Laws 1910, which charges that the defendant did willfully, unlawfully, feloniously, and knowingly feed, lodge, equip, harbor, assist, and conceal named fugitives from justice guilty of a felony, describing said felony, but which fails to aver the acts 'done by the defendant in equipping, aiding, and concealing said guilty parties, does not meet the requirements of the Code of Criminal Procedure of this state, as such information does not so • specifically inform the defendant of the acts constituting the offense charged, and a demurrer thereto should have -been sustained.

      Appeal from District Court, Custer County; James R. Tolbert, Jugde.

    Wes Cole was convicted of harboring fugitives from justice, and he appeals.
    Reversed and remanded, with directions to sustain the demurrer to the information.

      James L. Shackelford, for plaintiff in error.

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

The plaintiff in error, Wes Cole, hereinafter styled defendant, was, by information, charged with harboring fugitives from justice. Upon his trial the jury rendered a verdict of guilty and fixed his punishment at imprisonment in the penitentiary at hard labor for a term of four years. The court rendered judgment on the verdict, and to reverse said judgment the defendant prosecutes this appeal.

The information in this case, omitting caption and signature and indorsements, is as follows:

“Now comes E. J. Lindley, county attorney in and for said county and state aforesaid, duly authorized and empowered to inform of all offenses committed and triable therein, and gives the court to know and be informed that one Aubry Clark, one Tom Smith, and one Edward L. Thomas, late of the county of Dewey and state of Oklahoma, on the 8th day of August, in the year of our Lord one thousand nine hundred and eleven (1911), at and within said county and state, did then and there willfully, unlawfully, and feloniously, by means of stealth and fraud, take, steal, and drive away from and out of the possession of one Rolla Ferguson two domestic animals, to wit, one dark brown horse mule and one/ dark brown mare mule, each about 15 hands high and each weighing about 1,000 pounds, of the property of said Rolla Ferguson, with the felonious intent of them, the said Aubry Clark, Tom Smith, and Edward L. Thomas, then and there to deprive the said owner of the said property and to appropriate the same to their own use and benefit, without the consent of the said Rolla Ferguson, and that one Wes Cole, late of Custer county and state of Oklahoma, afterward, on or about the 9th day of August, in the year of our Lord one thousand nine hundred eleven (1911), at and within the said county of Custer and state of Oklahoma, did then and there willfully, unlawfully, knowingly, and feloniously feed, lodge, equip, harbor, and assist and conceal the said Aubry Clark, Tom Smith, and Edward L. Thomas, said persons being then and there guilty of the crime of larceny of domestic animals as aforesaid, and fugitives from justice seeking to escape arrest for the crime by them committed as aforesaid, he, the said Wes Cole, then and there well knowing the said Aubry Clark, Tom Smith, and Edward L. Thomas to have done and committed the said crime in the manner and form aforesaid, and he, the said Wes Cole, then and there well knowing the said persons to be fugitives from justice, seeking to escape arrest for the crime by them committed as aforesaid, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.”

The defendant demurred to the information upon the following grounds:

First. That the said information does not substantially conform to the Code of Criminal Procedure of the state of Oklahoma.

Second. That the information filed herein does not allege facts sufficient to constitute a public offense'.

The court overruled the said demurrer, and to the said action of the court the defendant excepted.

This information is for a violation of section 2204, Rev. Laws 1910, which reads:

“Any person who shall knowingly feed, lodge, clothe, arm, equip in whole.or in part, harbor, aid, assist or conceal in any manner any person guilty of any felony, or outlaw, or fugitive from justice, or any person seeking to escape arrest for any felony committed within this state or any other state or territory, shall be punished by imprisonment at hard labor in the penitentiary for a period not exceeding ten years.”

Said section 2204 makes it unlawful knowingly'to feed, or lodge, or clothe, or arm, or equip in whole or in part, or harbor, or aid, assist, or conceal in any manner any person guilty of a felony, or a fugitive from justice, and upon a proper information charging each of said prohibited acts in the conjunctive the defendant may be legally convicted of doing any one or more of the said several acts interdicted. But the information in this case charges that the defendant did knowingly feed, lodge, equip, harbor, and assist and conceal named fugitives from justice guilty of a felony without specifying how the defendant equipped, harbored, assisted, and concealed the said fugitives from justice, and is too indefinite, and does not specifically inform the defendant of the acts done by him in equipping, aiding, harboring, and concealing said parties, with which he is charged, so as to enable him to prepare his defense.

“The information must be direct and certain as to the offense charged.” Section 5739, subd. 2, Revised Code. How would the defendant be able to prepare his defense without being informed by the information how he equipped, or how he assisted, or how he harbored, or how he concealed said fugitives from Justice? Certainly he could not do so, and hence the information in this case does not meet the requirements of the Code of Criminal Procedure of this state, and the court committed prejudicial error in overruling the demurrer to the information.
“The true test of the sufficiency of an indictment is not whether it might possibly have been made more certain, but whether it contains every element of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for the same offense, whether the record shows with accuracy to what extent he may plead his former acquittal or conviction.” (State v. Feeback, 3 Okla. Cr. 508, 107 Pac. 442.)

In Fletcher v. State, 2 Okla. Cr. 300, 101 Pac. 599, 23 L. R. A. (N. S.) 581, it is held:

“In an indictment or information for committing a statutory offense, the indictment or information may describe the offense in the general language of the statute; but the description must be accompanied by a statement of the particulars essential to constitute the crime or offense with which the defendant is charged, and acquaint the accused with what he must meet upon the trial.”

In the body of the opinion it is said:

“It is a general rule of law that ,if an indictment uses the words of a statute, or words of equal import, to this extent the indictment or information is good. But suppose that an indictment for murder, or for an assault, or for larceny, perjury, libel, embezzlement, or for any offense, would simply use the language of the statute, who is bold enough to assert that this is all that the law requires, and that such an indictment or information would be sufficient to charge any offense?”
“In an indictment for committing an offense against a statute, the offense may be described in the general language of the act, but the description must be accompanied' by a statement of all the particulars essential to constitute the offense or crime, and to acquaint the accused with what he must meet on trial.” (United States v. Hess, 124 U. S. 483, 8 Sup. Ct. 571, 31 L. Ed. 516.)

See, also State v. Vaughn, 15 Okla. Cr. 187, 175 Pac. 731.

As the error pointed out must work a reversal of the judgment rendered, we deem it unnecessary to consider the other errors assigned.

For the error pointed out, the judgment rendered in this case is reversed and remanded, with direction to sustain demurrer to the information.

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


text:
    VINCE FEASTER v. STATE.
    No. A-2911.
    Opinion Filed January 11, 1919.
    (177 Pac. 124.)
    1. ASSAULT AND BATTERY — Construction of Verdict — Sentence— Jurisdiction. A verdict finding the defendant “guilty of assault with intent to do bodily harm” is in law only a finding of an assault, and did not give the trial court jurisdiction to sentence the defendant to seiu/e a term in the penitentiary.
    2. JUDGMENT AND SENTENCE — Verdict. All judgments and sentences must follow and be based upon the verdict of the jury.

      Appeal from District Court, Caddo County; Will Linn, Judge.

    Vince Feaster was convicted of an assault with intent to do bodily harm, and appeals.
    ^Modified and affirmed.

      W. W. Vaughan and Bristow & McFayden, for plaintiff in error.
    <S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

Plaintiff in error, Vince Feaster, hereinafter styled “defendant,” was, by information, charged with the offense of assault with a dangerous weapon, convicted of an assault, and sentenced to imprisonment in the penitentiary for a term of two years, and, to reverse the judgment rendered, brings this appeal.

From the view we take, we deem it unnecessary to set out the information or the evidence in the case, as we think that the information is sufficient, and the evidence, though in part in conflict, was also sufficient to support the jury in finding the defendant guilty of an assault.

There are several errors assigned, but we are of the opinion that the same are not prejudicial to the defendant, except as to the error committed by the court in imposing sentence.

The prosecution in this case is under Rev. Laws 1910, sec. 2336, which contains two provisions. The first provision is violated by one who intentionally and wrongfully shoots, shoots at, or attempts to shoot at, another with any kind of firearms, air gun, or other means whatever, with the intent to kill any person. The second provision of said section is violated by one who commits any assault and battery upon another by means of any deadly weapon, or such other means or force as is likely to produce death, or in resisting the execution of any legal process.

To sustain a conviction under the first provision of said section there must be a shooting, a shooting at, or an attempt to do so, with the intent to kill; while under the second division of said section there must be an assault and battery upon another by such means or force as is likely to produce death. See Love v. State, 12 Okla. Cr. 1, 150 Pac. 913.

The jury returned the following verdict:

“Find the defendant, Vince Feaster, guilty of assault with intent to do bodily harm and submit his punishment to the court.”
Section 2336 includes an assault, and this question was submitted to the jury by a proper instruction. Section 5923, Rev. Laws.

The distinction between this case and the case of Fender Polk v. State, 15 Okla. Cr. 324, 176 Pac. 538, is that the question of assault was not submitted to the jury as was done in this case, and the jury found in the said former case upon an issue riot submitted to them. Again, the receipt of the verdict in the former case was objected to, which was not done in this case: As previously said, the verdict only found the defendant guilty of an' assault, and the court should have sentenced the defendant to be confined in jail for not exceeding 30 days, or by a fine of not less than $5 or more than $100, or both. Section 2343, Rev. Laws. 1

All judgments and sentences of the court must follow and be based upon the verdict of the jury. Wood v. State, 4 Okla. Cr. 436, 112 Pac. 11, 45 L. R. A. (N. S.) 673.

It is therefore ordered by this court that the judgment rendered in this case be modified so as to make the judgment rendered conform to the verdict, and that, in lieii of said judgment of two years’ imprisonment in the penitentiary, the defendant is hereby sentenced to 30 days’ confinement in the county jail of Caddo county, and to pay the costs of this prosecution, arid upon a failure to pay the same to be further confined until said costs are satisfied as by law provided.

Judgment as modified affirmed.

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


author: MATSON, J.

text:
    SAM HARRIS v. STATE.
    No. 2953.
    Opinion Filed January 11, 1919.
    (177 Pac. 122.)
    I., ASSAULT AND BATTERY — Grade of Assault — Evidence—Included Offenses. ‘’Battery" includis assault, but "assault” (hies not include battery. When the assault culminates in a battery, the offense is assault and battery, and the prosecution should be commenced for that grade of assault and battery which is reasonably supported by the state's evidence; and not for that grade ■of assault only.
    2. HOMICIDE — Variance — Direction of an Acquittal — Further Procedure. Where the information, by reasonable intendment only, charges an assault with intent to kill, and the proof both on the part of the state and the defendant shows that a battery was committed in addition to the felonious assault, upon proper motion, the court should advise the jury to acquit upon the ground of variance and direct that the defendant be hold to answer the higher offense.

      Appeal from, District Court, McCurtain County; C. E. Dudley, Judge.

    Sam Harris was convicted of the crime of assault with intent to kill and sentenced to serve a term of three years in the state penitentiary, and he appeals.
    Reversed.

      Hosey & Jones and A. M. Stewart, for plaintiff in error.

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

“On the 1st day of February, 1915, information was filed in the district court of McCurtain county, Okla., charging Sam Harris with assault with intent to kill one Norman O’Neal. The allegations in the information being as follows:

“ ‘Now comes E. G. Nelson, the duly qualified and acting county attorney, in and for McCurtain county, state of Oklahoma, and gives the district court of McCurtain county, state of Oklahoma, to know and be informed that Sam Harris did in McCurtain county, and in the state of Oklahoma, on or about the 15th day of March, in the year of our Lord one thousand nine hundred and fourteen, and anterior to the presentment hereof, commit the crime of assault with intent to kill, in the manner and form as follows, to wit:
“ ‘The said Sam Harris did, in the county of McCur-tain and state of Oklahoma, on or about the 15th day of March, 1914, unlawfully, willfully, and feloniously make an’ assault on one Norman O’Neal with a certain • pistol and with a certain slingshot, then and there held' in the hands of him, the said Sam Harris, with the unlawful intent on the part of him, the said Sam Harris, to kill him, the said Norman O’Neal, contrary to the form 'of the statutes, in such case made and provided, and against the peace and dignity of the state.’
“The case was tried on September 13, 1916, on the information filed over the objection of the defendant as to the sufficiency of the information. After the introduction of evidence the defendant moved for a peremptory instruction in favor of the defendant for the reason that the testimony did not sustain the allegations contained in the information, for the reason that the testimony did not show a public offense and for the reason that the proof and allegations did not correspond. The motion was overruled by the court, exception saved.”

Among the assignments of error urged as grounds for reversal of this judgment is that the court should have sustained the defendant’s motion to direct a verdict in his favor because of a fatal variance between the allegations of the information and the proof adduced upon the trial.

If it may be said that the foregoing .information by any reasonable intendment charges a crime in the nature of a felony, it only charges an assault with intent to kill, or an assault of a lower grade necessarily included within the charge of assault with intent to kill.

The evidence introduced upon the trial shows clearly that, if the defendant is guilty of any crime, it is that of assault and battery with intent to kill, or some lesser grade of assault and battery. There is no conflict between the testimony of the witnesses on behalf of the state and that of those introduced in behalf of the defendant, as to the fact that a battery was committed.

In the case of People v. Helbing, 61 Cal. 620, the Supreme Court of California said:

“It is contended, on behalf of the appellant, that the conviction is erroneous, because by the former conviction of ‘battery’ he was acquitted of the offense for which he now stands convicted. But the former conviction did not legally operate as an acquittal of the offense charged in the information, unless it was for an offense included within the offense charged; and that presents the question whether the offense of ‘battery’ is included within or is an ingredient of the offense of assault with a deadly weapon, with a felonious intent. ,

“The essential elements of the last-named offense are the assault, the weapon, and the intent. An ‘assault’ is an unlawful attempt coupled with a present ability to commit a violent injury upon the person of another. Pen. Code, sec. 240. This offense is punishable by fine or by imprisonment in the county jail (Id. sec. 241), and is therefore a misdemeanor; but when made with a deadly weapon, with a felonious intent, it develops into a felony (Id. secs. 221, 245), which, in its elements and unity, includes the misdemeanor (People v. Vanard, 6 Cal. 562; People v. English, 30 Cal. 214; Ex parte Ah Cha, 40 Cal. 426; Ex parte Max, 44 Cal. 579.)

“The offense of ‘battery’ is the' unlawful use of force or violence upon the person of another; it is also, like an assault, a misdemeanor, because it is punishable by fine or imprisonment in the county jail, or by both fine and imprisonment (Id. secs. 242, 248) ; -it is therefore a greater offense than assault, and, being the greater, it includes the less. But the less does not include the greater. ‘Battery,’ therefore, includes assault, but ‘assault’ does not inelude battery, nor is the latter included within nor an ingredient of the offense of assault with a deadly weapon with a felonious intent. Upon trial for the latter offense a defendant could not equally be convicted of battery; and such a conviction, especially when set aside on motion of defendant himself, constitutes no bar to a second trial upon the same indictment or information.”

The excerpt from the foregoing opinion of the Supreme Court of California clearly states the law, and for a further discussion of this subject, see the case of Parks v. State, 14 Okla. Cr. 413, 171 Pac. 1129.

It is the opinion of this court that the evidence, both on behalf of the state and that of the defendant, if it established the guilt of the defendant of any crime, showed that the crime committed was assault and battery, either by shooting with intent to kill, or by the use of force likely to produce death, as defined within the terms of section 2336, Rev. Laws 1910. Such offense was not included within the allegations of the information in this case. The motion interposed by counsel for the defendant, while not in proper form, was sufficient to call the attention of the trial court to the contention that there was a fatal variance between the allegations of the information and the proof adduced upon the trial. The court should have instructed the jury to return a verdict of not guilty by reason of a variance between the allegations of the information and the proof, and a new prosecution should have been commenced charging the defendant with the higher offense, which procedure is authorized by sections 5921 and 5930, Rev. Laws 1910.

The statutes of this state do not permit of the conviction of the defendant where the proof does not support the allegations - of the information as to the crime charged, or of a lesser grade or degree of such crime, or of an offense necessarily included therein. Where the evidence discloses a higher grade or degree of crime than that charged, or the proof is of an offense different from that charged, or of an offense not necessarily included within the terms of the allegations of the indictment or information, then a variance exists, and the procedure indicated in sections 5921 and 5930, supra, should be followed.

For the reasons stated, the judgment is reversed.

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


text:
    STATE v. W. S. MCCRAY.
    No. 2745.
    Opinion Filed January 11, 1919.
    (177 Pac. 127.)
    I LARCENY — Property—“Personal Property” — Subject of Larceny —Statutes. A deed to real estate is “personal property,” within the definition of section 2830, Rev. Laws 1910, and after delivery to the grantee is the subject of larceny, within, .the meaning of section 2652, Revised Laws 1910.
    2. SAME — Larceny of Deed to Real Estate — Evidence—Statutes. Section 2660, Rev. Laws 1910, construed and held not td define any material ingredients of the crime of larceny of a \vritten instrument, hut merely to establish a rule of evidence whereby the value of the written instrument is to be determined' in a prosecution for the larceny thereof.

      Appeal from District Court, Creek County; Ernest B. Hughes, Judge.

    Information' by the State against William S. McCray, charging the crime of grand larceny. From a judgment sustaining a demurrer to the information, the State appeals.
    Reversed.

      S. P. Freeling, Atty. Gen., R. McMillan, Asst. Atty. Gen., and Roy T. Wildman, Co. Atty. (Asp, Snyder, Owen & Lybrand, of counsel), for the State.

      O’Meara, Bush & Moss, and Biddison & Campbell, for defendant in error.
   MATSON, J.

On the 30th day of September, 1915, there was filed in the district court of Creek county an amended information against the defendant, W. S. McCray, which said amended information is as follows, to wit:

“The State of Oklahoma v. W. S. McCray, Defendant.
“In the District Court of Creek County.
“Ini the name and by the authority of the state of Oklahoma now comes Roy T. Wildman, the duly qualified and acting county attorney, in and for Creek county, state of Oklahoma, and upon his oath of office gives the district court of Creek county, state of Oklahoma, to know and be informed that W. S. McCray did, in Creek county, state of Oklahoma, on or about the 31st day of March, in the year of our Lord one thousand nine hundred fourteen, and anterior to the presentment hereof, commit the crime of grand larceny, in the manner and form as follows, to wit:
“That the said defendant, W. S. McCray, mn the date and in the county and state aforesaid, (sic) certain personal property, to wit, a certain written instrument, the same being a warranty deed to an undivided one-third interest in and to the northeast quarter of the southeast quarter of section thirty-five (35), and the southeast quarter of the northeast quarter of section thirty-five (35), and the northwest quarter of the southwest quarter of section thirty-six (36), and the southwest quarter of the northwest quarter of section thirty-six (36), all in township nineteen (19) north, range seven (7) east, in Creek county, Oklahoma. The said warranty deed theretofore, to wit, on the 18th day of March, 1914, was executed, acknowledged and delivered by the said W. S. McCray unto the said R. B. Thompson for a consideration of one dollar and other valuable consideration theretofore paid and delivered by the said R. B. Thompson unto the said W. S. McCray and said warranty deed then and there on the 31st day of March, 1914, being the goods, chattels, and property of the said R. B. Thompson, of the value of five thousand dollars, good and lawful money of the United States of America, and at the time last aforesaid said warranty deed had not been recorded and was in the possession of the said R. B. Thompson, and he, the said W. S. McCray, at the time and place last aforesaid, did feloniously, intentionally, willfully, and unlawfully, by fraud and stealth, take, steal, and carry away said warranty deed, with intent of said defendant, W. S. McCray, to feloniously appropriate the same to his own use, and to deprive the said R. B. Thompson, the owner thereof — contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.
“Roy T. Wildman, County Attorney.
“State of Oklahoma, Creek County — ss.:
“I, R. B. Thompson, being duly sworn, on oath state that I have read the above and foregoing information and know the contents thereof, and that the allegations and statements therein made and contained are true.
“R. B. Thompson.
“Subscribed and sworn to before me this 30th day of September, 1915.
“W. R. Casteel, Court Clerk.”

Thereafter in said court there was filed in said cause a demurrer to the said information, by the said defendant, which said demurrer, omitting the title of the cause and caption, is as follows, to wit:

“Comes now the defendant above named and demurs to the information herein for the following reasons, to wit:
“(1) The said information does not substantially conform to the requirements of the Code of Criminal Procedure of the state of Oklahoma in the following particulars, to wit:
“(a) The acts charged as the offense are not clearly and definitely set forth in clear and precise language in such a manner to enable a person of common understanding to know what is meant.
“(b) The acts charged as the offense are not stated with such a degree of certainty as to enable the court to pronounce judgment upon a conviction according to the right of the case.
“(c) The said information is not definite and certain as to the offense charged, nor as to the particular circumstances of the offense charged as far as is necessary to charge a complete offense.
“The facts stated in the information do not constitute a public offense. ■
“Biddison & Campbell and W. P. Root,
“Attorneys for Defendant.”

And on the 21st day of February, 1916, the said cause coming on to be heard on the demurrer of the defendant to the information, the court sustained the demurrer and entered the following order, to wit:

“This cause comes on to be heard on this 21st day of February, 1916, on demurrer to the information; defendant present in person and by his attorney, and the state present by its attorney, Roy T. Wildman. The court, after hearing arguments and being fully advised in the premises, sustains said demurrer, to which the state of Oklahoma excepts and exceptions allowed. Whereupon the state of Oklahoma prays an appeal to the Criminal Court of Appeals of the state of Oklahoma and appeal granted; thirty days given in which to prepare a case-made, ten days to suggest amendments, and five days to settle.”

The sustaining of the demurrer to the amended information is assigned herein for error.

The information charges the larceny of a warranty deed executed and delivered by the defendant to one R. B. Thompson, conveying title to a certain tract of real estate. Section 2652, Rev. Laws 1910, provides:

“Larceny is the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof.”

Section 2660, Id., provides as follows:

“If the thing stolen consists of any evidence of debt or other written instrument, the amount of money due thereon or secured to be paid thereby, and remaining unsatisfied, or which in any contingency might be collected thereon, or the value of the property the title to which is shown thereby, or the sum which might be recovered in the absence thereof, as the case may be, shall be deemed the value of the thing stolen/

Section 2830, Id., defines “personal property” as follows:

“The term ‘personal property’ includes every description of money, goods, chattels, effects, evidences of right in action, and written instruments by which any pecuniary obligation, right or title to property, real or personal, is created -or acknowledged, transferred, increased, defe'ated, discharged or diminished.”

Section 6744, Id., is as follows:

“Instruments essential to the title of real property, and which are not kept in a public office as a record pursuant to law, belong to the person in whom, for the time being, such title may be vested, and pass with the title.”

Under the foregoing provision of the statutes of this state, it is apparent that a deed to real property properly executed and - delivered is personal property within the meaning of the statute, supra, defining personal property, and while in the possession of the grantee after delivery, and while not kept in a public office as a record pursuant to law, is the presonal property of such grantee and passes with the title to the land. We think it equally apparent, without the citation of authority, that the allegations of the information above quoted are sufficient to charge larceny within the requirements of the statutory definition thereof.

Counsel for the defendant in error contend that the information is insufficient, because of the allegation that the deed itself was of the value of $5,000, without the additional allegation that the value of the instrument is based upon the value of the land described in the deed, or that such value is what might be recovered by breach of warranty.

With this contention, we cannot agree. It has never been held necessary, in alleging the value of personal property stolen, to state, in addition to the fact that the property was of the value of so many. dollars, lawful money of the United States, that such alleged value was the market value at the time and place of the larceny, because, in the absence of a statute to the contrary, the market value of the property would be its legal value in a larceny case.

But the Legislature realized that the intrinsic value of the paper containing a written instrument would be practically nil, that the written instrument ofttimes would have no market value, while the value of the instrument itself to the owner thereof as an evidence of indebtedness or of title to property might be very great. For that reason, undoubtedly, section 2660, Rev. Laws 1910, was enacted.

In our opinion, said section does not attempt to define any of the'material ingredients of the crime of . the larceny of a written instrument, but merely establishes a rule of evidence whereby the value of the instrument itself is to be determined in a prosecution for its theft. For that reason it is not necessary to incorporate, as a material allegation in the information, that the value alleged is determined by the rule announced in section 2660. Upon the trial the court will limit the consideration of value to that rule, and must so limit it. Berry et al. v. State, 4 Okla. Cr. 202, 111 Pac. 676, 31 L. R. A. (N. S.) 849.

This is a companion case to No. A-2744, State of Oklahoma v. William S. McCray, 15 Okla. Cr. 316, 176 Pac. 418, heretofore decided. The trial court made no order authorizing or directing a new information to be filed charging the offense. As to the finality of the trial court’s judgment sustaining the demurrer to the information, attention is directed to the opinion of this court in State v. Vaughn, 15 Okla. Cr. 187, 175 Pac. 731.

For the reasons stated, the judgment is reversed.

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


author: PER CURIAM.

text:
    CLYDE SALYERS v. STATE.
    No. 3493.
    Opinion Filed January 11, 1919.
    (177 Pac. 119.)
    APPEAL AND ERROR — Sentence in Another Case — Dismissal. An appeal from a conviction of manslaughter in the first degree upon a case-made would he dismissed on the showing that appellant, after his appeal was perfected, had been sentenced to imprisonment for life on another murder charge.

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

    Clyde Salyers was convicted of manslaughter in the first degree, and he appeals.
    Appeal dismissed.

      Beckett ■& Roland, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Clyde Salyers, was indicted in the district court of Okmulgee county for the murder of one Jim Warren, alleged to have been committed in said county on the 6th day of March, 1918, by shooting him with a pistol, which indictment was duly transferred to the superior court of Okmulgee county. Upon his trial there the jury found him guilty of man.slaughter in the first degree, and fixed his punishment at 15 years in the penitentiary. From the judgment rendered -on the verdict plaintiff in error appealed by filing in this .court, on December 19, 1918, a petition in error with case-made.

His counsel of record have filed a motion to dismiss said appeal.

It. having been made known to the court that said plaintiff in error since his appeal in this case was perfected has; on another murder charge been sentenced to imprisonment for life at hard labor, the motion to dismiss the appeal herein is sustained.

The appeal herein is therefore dismissed.


author: GALBRAITH, Special Judge.

text:
    FRANK TATUM v. STATE.
    No. 2543.
    Opinion Filed January 11, 1919.
    (177 Pac. 121.)
    KEEPING PLACE BOR SALE OF INTOXICATING LIQUOR. Syllabus tlie same as in No. A-2331, Proctor v. State, 15 Okla. Or. 338, 170 Pac. 771. ’

      Appeal from District Court, Payne County; A. H. Huston, Judge.

    Frank Tatum was convicted of keeping a place for unlawful sale, etc., of intoxicating liquor, and he appeals.
    ^Reversed.

      Weldon & Mitchell, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   GALBRAITH, Special Judge.

The plaintiff in error was charged, convicted, and sentenced to be confined for 30 days in the county jail and to pay a fine of $200, under section 4, c. 26, Sess. Laws 1913.

This case involves the same issues as the case of Proctor v. State, 15 Okla. 338, 176 Pac. 771, and is controlled thereby. For the reasons set out in that opinion, the judgment kppealed from is reversed.

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


text:
    J. L. MATHES v. STATE.
    No. 2842.
    Opinion Filed January 13, 1919.
    (177 Pac. 120.)
    1. PERJURY — Falsity of Statement — Knowledge of Falsity. To constitute perjury, the statement made must not only lie false, hut the party making it must know it to be so.

      %. SAME — Requisites of Offense. Perjury consists in swearing willfully and corruptly, contrary to the belief of the witness, and not. in swearing rashly and inconsiderately according .to his belief.
    3. EVIDENCE — Explanation of Defendant’s Intent — Perjury. Upon a trial for perjury, it is reversible error for the. court to refuse to permit the defendant to testify as to his intent and purpose to swear falsely as to the facts sworn to by him upon which perjury charged is based.

      Appeal from District Court, Love County; W. F. Freeman, Judge.

    J. L. Mathes was convicted of perjury, and he' appeals.
    Reversed and remanded.

      H. A. Stanley, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty.' Gen., for the State.-
   ARMSTRONG, J.

The plaintiff in error, J. L. Mathes, hereinafter referred to as defendant, was charged by information with perjury, convicted and sentenced to imprisonment at hard labor for a term of five years. To reverse the judgment rendered, the defendant prosecutes this appeal.

The perjury alleged is that the defendant, while testifying in a case in the district court of Love county, in which said defendant was plaintiff and T. F. Gross was defendant, falsely and corruptly did swear and depose under oath that he, the said J. L. Mathes, did not, during the month of March, 1914, while under medical treatment by the said T. F. Gross, for the fracture of the right arm of him, the said J. L. Mathes, remove the bandages and splints from his said right forearm, which had been placed there by the said T. F. Gross in the regular course of said surgical treatment, the fact of the removal of said bandages by the said J. L. Mathes being then and there a material issue upon the trial of said case, and he, the said J. L. Mathes, well knowing his said testimony to be false, corrupt, and perjured upon said material issue, and he, the said J. L. Mathes, having then and there taken an oath, lawfully administered, that he would testify truly in the trial of said cause.

The material uncontradicted evidence in the case is: “That in the trial of the said case of the defendant against T. F. Gross in the district court of Love county, and at the time named in the information, the defendant was duly sworn as.a witness and testified, in said case of J. L. Mathes v. T. F. Gross, that he, the said defendant, did not remove the splints from his arm in the month of March, 1914,” and that such evidence as to the time that said splints were removed from the arm of the defendant was material to the issue being tried.

The evidence was in conflict in said case of the defendant against T. F. Gross as to the time the splints were removed from the arm of the defendant.

It therefore clearly appears that the pivotal question involved in this case is, “Did the defendant willfully and corruptly and contrary to his belief swear that” he did not remove the splints, which had been so placed by T. F. Gross, from his arm during the month of March, 1914?

On examination of the defendant as a witness in ¡his own behalf, he was asked, together with other questions, the following questions: “Mathes, did you have any intention of swearing falsely in ¿ny of these answers propounded to you in the former trial? Was it your purpose or intention to swear falsely in these matters you have been asked about in the trial of the case with Dr. Gross?” To each of said questions objections were interposed by the county attorney, and the objection to each of said questions sustained by the court, and to the said refusal of the court to permit the defendant to answer said questions ah exception was respectively saved.

“Perjury consists in swearing willfully and corruptly, contrary to the belief of the witness, not in swearing rashly and inconsiderately according to his belief.” (Pilgrim v. State, 3 Okla. Cr. 49, 104 Pac. 383.)

It is an elementary proposition that knowledge of the falsity of the alleged perjured testimony is an essential and indispensable element of the crime of perjury.

Corrupt motive is indispensable to perjury and one having knowledge respecting the fact, who testified, however positively, only what he believed to be true, can be guilty of no crime, although he was mistaken. Pilgrim v. State, supra. In Bishop’s New Criminal Law, sec. 1048, it is said:

“Perjury cannot be willful where the oath is according to the belief and conviction of the witness as to its truth.”

To constitute perjury the statement must not only be false, but the party making it must know it to be so. If the witness testified under an honest mistake or misapprehension, and believed what he testified to be true, a conviction cannot be had though the statement be false. See, also, Cutler v. Territory, 8 Okla. 101, 56 Pac. 861; Green v. State, 41 Ala. 419; Nelson v. State, 32 Ark. 192; State v. Higgins, 124 Mo. 640, 28 S. W. 178; Commonwealth v. Brady, 71 Mass. (5 Gray) 78; Gibson v. State (Tex. App.) 15 S. W. 118, all of which hold, in substance, that one can be convicted of perjury only when the false testimony was given corruptly with knowledge of its falsity.

It follows that the defendant had a right to testify as to his intention of swearing falsely as to the statements made by him as a witness in the case in which the defendant is charged with perjury, such testimony to be considered by the jury in connection with all the other evidence and circumstances in the case, and the court committed reversible error in refusing to permit the defendant to answer said questions as to his intention and purpose in testifying as he did in the trial of the case in which the"' perjury is alleged.

The judgment rendered is reversed, and the case remanded for another trial.

DOYLE, P. J., and MATSON, J„ concur.


text:
    JOE DAVIS v. STATE.
    No. 2619.
    Opinion Filed January 11, 1919.
    (177 Pac. 621.)
    INDICTMENT AND INFORMATION — Sufficiency. Where the information avers every element of the offense charged, and fully informs the defendant of the charge he is called upon to meet, it is sufficient.
    APPEAL AND ERROR — Admission of Immaterial Evidence— Prejudice. The admission of evidence not germane to the issue involved, but which in no wise tends to show the guilt of the defendant, while not approved, is not prejudicial error.
    EVIDENCE — Preliminary Evidence — Transcript—Signature by Witness. Upon the examining trial of the defendant, I. C., a witness, was examined and cross-examined by the defendant, and the evidence of said witness taken down in shorthand, and a transcript thereof made, without being signed by said witness, and in the absence of proof that the stenographer who took such evidence was an official stenographer, or as to who filed the transcript in said trial court. On the trial of the case, and preliminary to the admission of said transcript of the evidence of said witness, it was proven that a subpoena had duly issued for said witness, and had been returned not found, and that the officer in whose hands said subpoena was placed made diligent search for said witness in the county in which said subpoena issued, and in several other counties in the state, and could not find him, and that said officer had been informed that said witness I. O. had left the state and gone to Kentucky. Held, (1) that the law does not designate who at an examining trial may take “in shorthand'’ ’the evidence of a witness, and any stenographer may do so, and a transcript of such evidence, without being signed by the witness, upon a proper predicate being laid therefor, may be legally admitted in evidence; (2) that, in the absence of evidence to the contrary, a transcript of the evidence of a witness taken at an examining trial and filed in a district court must be presumed to have been filed by the examining magistrate, as provided by section 6623, Comp. Laws 1909 (section 5674, Rev. Laws 1910), as amended by chapter 6S, Session Laws 1913: (3) that the transcript of the evidence of the witness taken at¡ the examining trial of the defendant was properly admitted in evidence in this case.

      4. EVIDENCE — Hypothetical Question — Inclusion of Matters Not in Testimony — Exclusion of Material Testimony. Hypothetical questions propounded to expert witnesses, which do not include all of the material testimony, or which include matters not in testimony in the case, are properly not permitted to be answered.

      5. HOMICIDE — Mutual Combat — Degree of Offense. When the defendant voluntarily and willfully enters into a mutual combat in which he intentionally takes the life of his adversary, such killing will be none the less murder or manslaughter because the difficulty arose suddenly, or because the defendant may have been reduced to imminent peril during the progress of said difficulty.
    6. TRIAL — Directed Acquittal — Sufficiency of Evidence. When there is sufficient evidence, though the evidence be in conflict, to establish the guilt of the defendant beyond a reasonable doubt of the offense charged in the information, or of any off .'use included in the offense charged therein, a request for a verdict, of acquittal is properly denied.
    7. HOMICIDE — Manslaughter in First Degree — Sufficiency of Evidence. The entire record in this case, carefully read and considered and found free from prejudicial error, and that there is sufficient evidence to fully sustain the verdict, in finding the. defendant guilty of manslaughter in the first degree.
    8. WITNESSES — Credibility—Conviction of Crime. To test the-credibility of a witness he may be asked on cross-examination as to his having been convicted of any crime.
    9. TRIAL — Instructions — Request—Necessity. If the instructions given as to defendant’s aggression or his bringing on the difficulty and as to his right, of self-defense were not sufficiently plain and correct, instructions further explanatory thereof should have been requested.
    10. SAME — Requested Instructions — Given Instructions. Requested instructions are properly refused where fully covered by the instructions given.
    11. APPEAL AND ERROR — Harmless Error — Announcement of Penalty. That the court, announced the penalty upon the return of the verdict was not prejudicial to defendant where the sentence, as shown by the record, was not imposed until after the time provided by law in which it should be done.

      Appeal from District Court, Rogers County; W. J. Campbell, Judge.

      Joe Davis was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.

      Woodson E. Nowell and T. L. Brown, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and li. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Joe Davis, and John Davis, his brother, were by information jointly charged with the murder of one Leslie C. Wolfenberger. Upon their trial the jury failed to agree as to the guilt of the defendant John Davis, and rendered a verdict finding the defendant Joe Davis guilty of manslaughter in the first degree, but failed to agree upon his punishment. The court rendered judgment on the verdict, and sentenced the defendant Joe Davis to be imprisoned in the state penitentiary for a term of 25 years. To reverse the judgment rendered he prosecutes this appeal.

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

“That on the 28th day of May, 1915, in the county of Rogers, state of Oklahoma, one John Davis and Joe Davis, then and there being, did then and there willfully, unlawfully, purposely, feloniously, and with malice aforethought, and without authority of law, and with a premeditated design then and there to effect the death of one Leslie C. Wolfenberger, did then and there, at and within the county of Rogers and state of Oklahoma, make an assault on the said Leslie C. Wolfenberger with a certain sharp and dangerous weapon, to wit, a knife or sharp instrument, the exact kind, size, and description of said knife or sharp instrument is unknown to this informant, and by them, the said John Davis and Joe Davis, then and there had and held in their hands, and they, the said John Davis and Joe Davis, did then and there unlawfully, willfully, feloniously, and without authority of law and with malice aforethought, and with a premeditated design to then and there effect the death of the said Leslie C. Wolfenberger, beat, strike, cut, stab, and wound the person and body of him, the said Leslie C. Wolfenberger, with the said knife or sharp instrument so had and held as aforesaid, thereby beating, striking, cutting, stabbing, and wounding the neck, head, chest, and body of him, the said Leslie C. Wolfenberger, and thereby inflicting upon him, the said Leslie C. Wolfen-berger, mortal wounds, of which said mortal wounds so inflicted in manner and form as aforesaid, so inflicted with the intent and purpose as aforesaid, the said Leslie C. Wolfenberger, in the county of Rogers, state of Oklahoma, on the 28th day of May, Á. D. 1915, did then and there immediately die, and so, in manner and form as charged aforesaid, the said John Davis and Joe Davis did then and there kill and murder the said Leslie C. Wolfenberger, all of which was then and there contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state.”

The information was signed and properly verified by the county attorney, and has indorsed on its back the following :

“Criminal No. 711, Criminal Information. State of Oklahoma v. John Davis and Joe Davis, Charged with Murder. I have examined the facts in this case and recommend that a warrant do issue. Wm. M. Hall, County Attorney.”

The defendant moved to quash the information upon the following grounds:

“First, because the same is not subscribed, indorsed, verified, and filed as required by law; second, because the same does not substantially conform to the provisions of the Code of Criminal Procedure.”

On the hearing of the motion the court ordered that “I have examined the facts in this case and recommend that a warrant issue. Wm. H. Hall, County Attorney,” which was indorsed on the back of said information, be stricken therefrom, and overruled the motion to quash the information, to which the defendant excepted.

Thereupon the defendant demurred to the information upon the following grounds:

“First, because the said information does not state facts sufficient to charge this defendant with the commission of a public offense; second, because said information does not substantially comply and conform to the requirements of the Code of Criminal Procedure; third, because more than one offense is attempted to be charged in said information.”

The court overruled the said demurrer and the defendant excepted.

The evidence in this case is very voluminous, covering over 600 pages of typewritten, matter, and it would serve no useful purpose to set out the evidence in detail. The evidence shows that at the time of the homicide, which occurred about 3 a. m., and for several hours immediately prior thereto, the defendants were continuously under the influence of intoxicants; that the deceased was the night watchman of the town, and at the time of the homicide was armed with a pistol, and that shortly prior to the homicide the deceased and the defendants associated and drank together in a bawdyhouse, and left said bawdy-house together, accompanied by others, and proceeded to a cafe, in front of which the killing occurred, and entered the same, and shortly afterwards left the cafe, and immediately thereafter the homicide occurred.

Though in conflict, there is evidence sufficient to warrant the jury in finding beyond a reasonable doubt that at the time and place alleged in the information, and in the difficulty which resulted in the death of the deceased, the defendant Joe Davis 'was the aggressor, or at least willfully engaged in the difficulty, and that the said Leslie C. Wolf-enberger came to his instant death at the hands of the defendant from several knife wounds inflicted upon him by said defendant. The defendant introduced an expert and asked him hypothetical questions, which, for the reasons hereinafter stated, we deem it unnecessary to set out in extens'o, seeking to elicit proof that at the time of the killing, by reason of the previous indulgence of the defendant for several years in excessive use of intoxicants, the defendant was mentally incapacitated to commit crime, which questions, upon objection of the county .attorney, the court refused to permit the witness to answer, and defendant excepted. The evidence was in direct conflict as to whether or not' deceased was a dangerous man. There was also evidence tending to show that the deceased had made threats against the defendant which were communicated to the defendant. Upon the close of the testimony for the state the defendant moved for a directed verdict of acquittal, which was denied by the court and exception saved.

The defendant in his brief argued the following assignments of error:

(1) Overruling motion for new trial; (2) admitting incompetent and prejudicial testimony on the part of,the state; (3) refusing to admit competent and material testimony offered by the defendants; (4) overruling motion to quash the information; (5)' overruling demurrer to the indictment; (6) failure of the county attorney to strike the indorsement complained of from the information; (7) refusing to sustain challenge for cause against the jurors Ward, Dowell, and Stuard; (8) refusing the defendant additional peremptory challenges; (9) announcing on re-eeipt of the verdict of the jury, without giving defendant any opportunity to file a motion for new trial, the penalty at twenty-five years; (10) instructions of the court 2, 4, 5, 6, 7, 8, 9, 10, 11,. 12, 14, 17; (11) the court erred in so' framing instructions that the whole do not correctly state the law of the case, are confusing, conflicting, and prejudicial to the plaintiff in error; (12) the court in so framing the instructions that defendant’s innocence could not be consistent with the guilt of his codefendant; (13) refusal of the court to grant a new trial on account of newly discovered evidence.

Each of said assigned errors will be considered,. but not in the exact order above stated.

The testimony which was admitted over the objection and exception of the defendant is: (1) The transcript of the evidence given by Ira Clifton, a witness examined and cross-examined on the preliminary examination of the defendant for the offense here charged; (2) requiring the defendant to answer on cross-examination as to his having been convicted of an assault and battery; (3) pertaining to questions to Dr. Douglas as to his having an office girl, and as to a visit of Mrs. Wolfenberger to said doctor’s office and his making an engagement with her.

The evidence of Ira Clifton was taken in shorthand, and a transcript thereof, made without being signed by Mm, was filed in the court in which this case was tried, and indorsed as a true copy of said testimony, which procedure was in strict compliance with section 6623, Compiled Laws, now constituting section 5674, Rev. Laws 1910. It is true that it does not appear by whom the said transcript was filed in said court; but, in the absence of any evidence to the contrary, it must be presumed that it was so filed by the examining magistrate upon the theory that it must be presumed that an officer does his duty. The contention of the defendant that such transcript of the evidence of said witness is required by law to be made by an official stenographer is not well taken.

The evidence had preliminary to the admission of said transcript of the evidence of Ira Clifton is: That the said Ira Clifton had testified as a witness at the examining trial of the defendant in this case and was cross-examined by the defendant; that a subpsena duly issued for him as a witness for the state in this case; that said subpsena was placed in the hands of an officer, who made diligent search and inquiry for said Ira Clifton in several counties of the state, and was unable to find him; and that said officer had been informed that Ira Clifton had left the state and gone to Kentucky. We are of the opinion that a sufficient predicate was laid for the admission of said evidence, and that the court did not err in admitting the same.

Section 6623, Compiled Laws (Revised Laws 1910, sec. 5674). In Prude Wadsworth v. State, 9 Okla. Cr. 84, 130 Pac. 808, it is held:

“Where a witness has testified at an examining trial, and has been cross-examined by the opposing party, and his evidence is taken down and signed by him, or is taken in shorthand and transcribed without signing, and is filed with the clerk of the district court by the examining magistrate, such written statement, upon proof of the death of such witness, may be used as a deposition without further identification or verification.”

Of course the same rule applies when the witness is beyond the jurisdiction of the court as it does when the witness is dead.

In the very exhaustive opinion of Presiding Judge Doyle in Fitzsimmons v. State, 14 Okla. Cr. 80, 166 Pac. 453, it is held that the following testimony was a sufficient predicate for the admission of the transcript of the evidence :

“That J. W. Barrett and J. R. Long are the witnesses whose evidence is sought to be introduced by the transcript; that from every source or information I (officer testifying) could get, and covering within the last two months of diligent search, I know that these two witnesses are not within the jurisdiction of this court, and their whereabouts are unknown. I don’t know whether they are outside of the state or not. I can’t definitely state that. I do know their whereabouts are absolutely unknown as far as the state has been able to trace them.”

On cross-examination the witness testified:

“You may state, Mr. Turner, to what extent you personally know that their whereabouts is not known. Have you any information, except the return on that subpoena, only hearsay? A. * * * I went over in Drumright, and inquired of Mr. Long’s people over there (that is, his associates) if they knew where he went, and Mr. Barrett’s also, and they told me he had gone, and they didn’t know where he had gone. Mr. Billy Derrig, deputy sheriff, tells me he has made diligent search in this county, and cannot find these two witnesses, or any of them, except Billie Reed,, whose evidence is not in this transcript; that he made • diligent search for her, and at one time found her. Service was had on her, as the sheriff’s return will show, in this county, and she went away. I talked with Mr. Bradley, deputy sheriff of Creek county, who served these; papers over there, and he told me that he had searched Creek county high and low, but could not find these witnesses, and could not trace their whereabouts.”

Thereupon the transcript of the testimony of the absent witnesses given at the preliminary examination was admitted and this action of the court was approved, this court saying:

“Upon a careful consideration of the evidence, we think that the objections were properly overruled.”

The holding in said case is amply fortified .by authorities cited in said opinion. We think the court did not err in admitting the transcript of the evidence of Ira Clifton.

That for the purpose of testing the credibility of a witness he may be asked on cross-examination as to his having been convicted of any crime has been repeatedly held by this court.

We are unable to see that the question permitted to be asked Dr. Douglas in regard to Mrs. Wolfenberger, especially as they were answered in the negative, could in any manner prejudice the defendant.

The other evidence admitted, of which the defendant complains as improperly admitted, y^e are of the opinion was not prejudicial to defendant.

The material testimony offered by the defendant and excluded as to the mental condition of the defendant, and the most important of this rejected evidence, was the hypothetical question propounded to Dr. Reeder.

The rejected testimony, we think, was properly excluded. The hypothetical question asked did not fairly state the evidence, omitting evidence in some parts and exaggerating it in other parts, and therefore the. doctor was properly not permitted to answer said hypothetical questions.

“Hypothetical questions which do not include all of the material testimony, or which include matters not in testimony before the court, should not be propounded to expert witnesses.” Brown v. State, 9 Okla. Cr. 382, 132 Pac. 359.

The information fully informed the defendant of the offense with which he was charged, and particularly alleged every element of the offense of murder, and certainly does not, as insisted by the defendant, charge him with two different offenses.

The motion to quash and the demurrer to the information were each-properly overruled, and the court did not err in permitting the introduction of evidence in support of said information.

We are unable to see that the failure of the county attorney to strike from the information the indorsement dii'eeted by the court to be stricken was prejudicial to the defendant; besides, the attorneys of the defendant, if they desired said indorsement stricken, should have called the attention of the court to the failure of the county attorney to comply with the order of the court to' strike said in-dorsement from the information, which the court could doubtless have required done.

We have carefully considered the several paragraphs of the instructions complained of, and are of the opinion that each of said instructions correctly states the law, ex-, cept possibly in some instances they are more favorable to the defendant than he was entitled to, and were not prejudicial to him. If the instructions given as to the defendant being the aggressor or bringing on the difficulty, and as to his right of self-defense, were not sufficiently plain and correct, which we do not hold, instructions further explanatory thereof should have been asked, which was not done. Lumpkin v. State, 5 Okla. Cr. 489, 115 Pac. 478.

The errors assigned as follows: Failure to sustain challenges for cause of the jurors Ward, Dowell, and Stuard; refusal of the court to allow the defendant additional peremptory challenges of the jurors; the prompt action of the court in announcing the penalty upon the receipt of the verdict; that the court so framed the instructions that the whole do not correctly state the law, are confusing, conflicting, and prejudicial to the defendant — are without merit.

Instruction No. 2, requested by the defendant and refused, was properly refused, because fully covered by instructions of the court.

We are unable to see that the defendant was prejudiced by the court announcing the penalty upon the return of the verdict, as sentence, as shown by the record, was not imposed until after the time provided by law in which the same should be done.

There is no question that the evidence shows that the defendant Joe Davis, if not the aggressor, at least willingly entered into the combat; that Leslie C. Wolfenberger came to his death from several knife wounds inflicted upon him by Joe Davis; that Joe Davis, beyond all reasonable doubt, was guilty of manslaughter in the first degree; and that therefore the court properly overruled the request for a directed verdict of acquittal.

“Where a defendant voluntarily * * * enters into a mutual combat in which he intentionally takes the life of his adversary, such killing will be none the less murder or manslaughter because the difficulty arose suddenly, or because the defendant may have been reduced to imminent peril during the progress of said difficulty.” (Wadsworth v. State, 9 Okla. Cr. 84, 130 Pac. 808.)

The newly discovered evidence urged in support of a new trial and the other grounds set up in the motion for a new trial do not. show error in the court in- overruling the motion for a new trial.

Finding no prejudicial error in the record, the judgment of the trial court is affirmed.

DOYLE, P. J„ and MATSON, J„ concur.


text:
    FRED CAMERON v. STATE.
    No. A-2327.
    Opinion Filed January 13, 1919.
    (177 Pac. 118.)
    APPEAL AND ERROR — Dismissal of Appeal — Pardon. When an appeal from a judgment of conviction is pending in this court, and the plaintiff in error applies for a pardon, and the same is granted, and the fact that a pardon has been granted is brought to the attention of this court, the appeal will be dismissed as having been abandoned.

      Appeal from District Court, Oklahoma County; Geo. W. Clark, Judge.

    Fred Cameron was convicted of keeping a place with the intention and for the purpose of selling intoxicating liquors, and he appeals.
    Appeal dismissed.

      McAdams' & Haskell, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Fred Cameron was convicted of keeping a place with the intention and purpose of selling intoxicating liquors, and was sentenced to imprisonment in the penitentiary for a period of one year and to pay a fine of $500. To reverse the judgment an appeal was perfected. Pending the determination of said appeal, the plaintiff in error was granted a pardon.

When an appeal from a judgment of conviction is pending in this court, and the plaintiff in error applies for a pardon, and the same is granted, and the fact that a pardon has been granted is brought to the attention of this court, the appeal will be dismissed as having been abandoned.

The appeal herein is therefore dismissed.


text:
    CONEY BUMGARNER v. STATE.
    No. A-2489.
    Opinion Filed January 13, 1919.
    (177 Pac. 124.)
    KEEPING PLACE FOR SALE OF INTOXICATING LIQUOR. Syllabus tlie same as in No. A-2331, Protctor v. State, 15 Olcla. Or. 33'8, 17(5 Pae. 771.

      Appeal from District Court, McIntosh County; R. P. de Graffenried, Assigned Judge.

    Coney Bumgarner was convicted of keeping a place with the intent and for the purpose of selling intoxicating liquors, and he appeals.
    Reversed.

      Charles T. Keller, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   GALBRAITH, Special Judge.

The plaintiff in error was convicted of keeping a place with the intention and for the purpose of selling intoxicating liquors, and was sentenced to be confined in the penitentiary for one year and to pay a fine of $50 under section 4, c. 26, Session Laws 1913.

This case involves the same issues as the case of Proctor v. State, 15 Okla. Cr. 338, 176 Pac. 771, decided this term, and is controlled thereby. For the reasons set out in that opinion, the judgment appealed from is reversed.

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


text:
    CLAUD GOODPASTURE v. STATE.
    No. A-2479
    Opinion Filed January 13, 1919.
    (177 Pac. 124.)
    KEEPING PLACE POR SALE OP INTOXICATING LIQUORS. Syl-lubus the same as No. A-2327. Opinion Piled January 13. 1919. 338, 176 Pac. 771.

      Appeal from District Court, Payne County; A. H. Hmton, Judge.

    Claud Goodpasture was convicted of keeping- a place for the purpose of selling intoxicating liquors, and he appeals.
    Reversed.

      Weldon & Mitchell, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   GALBRAITH, Special Judge.

Plaintiff in error was charged, convicted, and sentenced to be confined in the penitentiary for one year and to pay a fine of $50 under section 4, c. 26, Session Laws 1913.

This case involves the same issues as the case of Proctor v. State, ante, p. 338, 176 Pac. 771, decided this term, and is controlled thereby. For the reasons set out in that opinion, the judgment appealed from is reversed.

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


text:
    CHRIS L. GLACKEN v. STATE.
    No. A-2606.
    Opinion Filed January 13, 1919.
    (177 Pac. 122.)
    KEEPING PLACE FOR SALE OF INTOXICATING LIQUOR. Syllabus the same as iu No. A-2331, Proctor v. State, 15 Okla. Cr. 338, 376 Pae. 771.

      Appeal from District Court, Payne County; A. H. Huston, Judge.

    Chris L. Glacken was convicted of keeping a place for the unlawful sale, etc., of intoxicating liquor, and he appeals.
    Reversed.

      Weldon & Mitchell and McAdams & Haskell, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   GALBRAITH, Special Judge.

The plaintiff in error was convicted of keeping a place with the intention and for the purpose of selling intoxicating liquors, under section 4 of chapter 26, Sess. Laws 1913.

This case involves the same issues as the case of Proctor v. State, ante, p. 338, 176 Pac. 771, decided this term, and is controlled thereby. For the reasons set out in that opinion, the judgment appealed from is reversed.

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


text:
    JOHN PINCHBACK et al. v. STATE.
    No. A-2607.
    Opinion Filed January 13, 1919.
    (177 Pac. 119.)
    KEEPING PLACE FOR INTOXICATING LIQUORS. Syllabus the same as in No. 2331, Proctor v. State, 15 Oída. Or. 338, 17G Pac. 771.

      Appeal from District Court, Payne County; A. H. Huston, Judge.

    John Pinchback and Albert Stephens were convicted of keeping a place with the intent and for the purpose of selling intoxicating liquors, and they appeal.
    Reversed.

      McAdams & Haskell, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   GALBRAITH, Special Judge.

The plaintiffs in error, John Pinchback and Albert Stephens, were jointly charged and convicted of keeping a place with the intention and for the purpose of selling intoxicating liquors, under section 4, c. 26, Sess. Laws 1913.

This case involves the same issues as the case of Proctor v. State, ante, p. 388, 176 Pac. 771, decided • this term, and is controlled thereby. For the reasons set out in that opinion, the judgment appealed-from is reversed.

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


text:
    E. L. THOMAS v. STATE.
    No. A-2247.
    Opinion Filed January 13, 1919.
    (177 Pac. 119.)
    KEEPING PLACE FOR SALE OF INTOXICATING LIQUOR. Syllabus the same as in No. A-2381, Proctor v. State, 15 Okla. Or. 838, 176 Pac. 771.

      Appeal -from Superior Court, Oklahoma County; Edward Dewes Oldfield, Judge.

    E. L. Thomas' was convicted of keeping1 a place for the unlawful sale, etc., of intoxicating liquor and he appeals.
    Reversed.

      Thos. W. Conner, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   GALBRAITH, Special Judge.

The plaintiff in error was charged, convicted, and sentenced to be confined for one year in the penitentiary, and to pay a fine of $100, under section 4, c. 26, Sess. Laws 1913.

This case invofves the same issues as the case of Proctor v. State, ante, p. 338, 176 Pac. 771, decided this term, and is controlled thereby. For the reasons set out in that opiniqn, the judgment appealed from is reversed.

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


text:
    W. T. BOYD et al. v. STATE.
    No. A-2535.
    Opinion Filed March 3, 1917.
    Rehearing Denied January 15, 1919.
    (177 Pac. 121.)
    APPEAL AND ERROR — Reversal. When me is fried for crime and fails to offer any defense whatever, this court will not seek technical grounds upon which to reverse a just judjimonr.

      Appeal from County Court, Garfield County; E. L. Swigert, Judge.

    W. T. Boyd and Guy Smith were convicted of having unlawful possession of intoxicating liquors with intent to sell same, and they appeal.
    Affirmed.

      H. J. Sturgis, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiffs in error, W. T. Boyd and Guy Smith, were convicted at the May, 1915, term of the county court of Garfield county on an information charging them with the unlawful possession of intoxicating liquor with intent to sell same. Their punishment was fixed at a fine of $250 and imprisonment in the county jail of Garfield county for a term of three months.

The testimony introduced on behalf of the state tends to show that witness W. P. Arnold, with Officers Hamilton and Bebb, went to the Oxford Pool Hall, operated by the defendants in Enid, on the night of March 5, 1915; that Boyd was behind the cigar case in conversation with Officer Hamilton when he walked into the room; that the officer demanded that Boyd open the door to the basement, which Boyd did by pulling a string under an overcoat hanging on the wall near where he was standing; that the officers and the witness went into the basement and found four or five men there drinking intoxicating liquor. Plaintiff in error Smith was in the basement. There was a cash register and ice box containing beer and Pablo. Ten pints of whisky were also found. The basement was partitioned into two rooms apparently. Officers Bebb and Hamilton corroborated the statements of witness Arnold.

Witness Brady testified that he was in the basement at the time the officers came; that he drank the contents of one of the black bottles and paid 25 cents for it.

Plaintiffs in error put on no testimony whatever.

Counsel argue two propositions in one, to wit, that the evidence is insufficient to sustain the judgment, and that the court erred in instructing the jury. In our judgment, the evidence is ample and the instructions of the court free from error.

N?o defense was made to the charge. The plaintiffs in error were undoubtedly engaged in the illegal sale of in-intoxicating liquor. This court will not seek technical objections, which could not in any way affect the substantial rights of the parties, upon which to reverse a judgment, under the facts disclosed, especially when no defense whatever is made.

Affirmed. Mandate directed to issue forthwith.

DOYLE, P. J., and BRETT, J., concur.


text:
    LOUIS JACOBS v. STATE.
    No. A-2747.
    Opinion Filed January 15, 1919.
    (177 Pac. 379.)
    KEEPING PLACE FOR SALE OF INTOXICATING LIQUORS. Syllabus the same as in No. A-2331, Prcictor v. State, 13 Okla. Cr. 33S, 17C Pac. 771.

      Appeal from District Court, Tulsa County; W. J. Campbell, Assigned Judge.

    Louis Jacobs was convicted of keeping a place for sale of intoxicating liquors, and appeals.
    Reversed.

      Paul Avis, for plaintiff in error.

      R. McMillan, Asst, Atty. Gen., for the State.
   GALBRAITH, Special Judge.

The plaintiff in error was convicted of keeping a place with the intention and for the purpose of selling intoxicating liquors, and was sentenced to be confined in the county jail of Tulsa county for a period of 30 days and to pay a fine of $500, under section 4, c. 26, Sess. Laws 1913.

This case involves the same issues as the case of Proctor v. State, ante, p. 338, 176 Pac. 771, decided this term, and is controlled thereby. For the reasons set out in that opinion, judgment appealed from is reversed.

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


text:
    E. M. BOND v. STATE.
    No. A-2806.
    Opinion Filed January 15, 1919.
    (177 Pac. 379.)
    KEEPING PLACE FOB SALE OF INTOXICATING LIQUORS. Syllabus the same as in No. A-2331, Praetor v. State, 15 Oída. Or. 33S, 17(5 Pao. 771.

      Appeal from District Court, Garfield County; James B. Cullison, Judge.

    E. M. Bond was convicted of keeping a place for the sale of intoxicating liquors, and appeals.
    Reversed.

      H. J. Sturgis, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   GALBRAITH, Special Judge.

The plaintiff in error was convicted of keeping a place with the intention and for the purpose of selling intoxicating liquors, and was sentenced to be confined in the county jail of Garfield county for a period of 30 days and to pay a fine of $50, under section 4, c. 26, Sess. Laws 1913.

This case involves the same issues as the case of Proctor v. State, ante, p. 338, 176 Pac. 771, decided this term, and is controlled thereby. For the reasons set out in that opinion, judgment appealed from is reversed._

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


text:
    WALTER COOK v. STATE.
    No. A-2803.
    Opinion Filed January 15, 1919.
    (177 Pac. 380.)
    KEEPING PLACE FOR SALE OF INTOXICATING LIQUOR. Sylla- ■ bus the same as in No. A-2331, Prcctor v. State, 15 Okla. Cr. 338, 176 Pac. 771.

      Appeal from District Court, Garfield County; James B. Cullison, Judge.

    Walter Cook was convicted of keeping a place for the purpose and with the intention of selling intoxicating liquors, and he appeals.
    Reversed.

      H. J. Sturgis, for plaintiff in error.

      R. McMillan-, Asst. Atty. Gen., for the State.
   GALBRAITH, Special Judge.

The plaintiff in error was convicted of keeping a place with the intention and for the purpose of selling intoxicating liquors, and was sentenced to be confined in the penitentiary for one year and to pay a fine of $50, under section 4, c. 26, Sess. Laws 1918.

This case involves the same issues as the case of Proctor v. State, ante, p. 338, 176 Pac. 771, decided this term, and is controlled thereby. For the reasons set out in that opinion, judgment appealed from is reversed.

BOYLE, P. J., and ARMSTRONG, J., concur.


text:
    CHARLES McKNIGHT v. STATE.
    No. A-2775.
    Opinion Filed January 15, 1919.
    (177 Pac. 383.)
    KEEPING PLACE FOR SALE OF INTOXICATING LIQUORS. Syllabus the same as in No. A-2331, Proctor v. State, 15 Okla. Cr. 338, 176 Pac. 771.

      Appeal from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge.

    Charles McKnight was convicted of keeping a place for the sale of intoxicating liquors, and appeals.
    Reversed.

      Ed. O. Cassidy and Chas. E. Dierker, for plaintiff in error.
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   GALBRAITH, Special Judge.

The plaintiff in error was convicted of keeping a place with the intention and for the purpose of selling intoxicating liquors, and was sentenced to be confined for 30 days in the county jail of Pottawatomie county and to pay a fine of $500, under section 4, c. 26, Sess. Laws 1913.

This case involves the same issues as the case of Proctor v. State, ante, p. 338, 176 Pac. 771, decided this term, and is controlled thereby. For the reasons set out in that opinion, judgment appealed from is reversed.

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