text:
    S. D. HOFFMAN v. STATE.
    No. A-2453.
    Opinion Filed April 29, 1916.
    (156 Pac. 1151.)
    1. INDICTMENT AND INFORMATION — Objections—Waiver. An objection to an information on the ground that more than one . offense is charged therein, cannot be raised for the first time by motion in arrest of judgment. Such an objection when not raised by demurrer is in effect waived.
    2. INTOXICATING- LIQUORS — Criminal Prosecution — Evidence. In a prosecution for unlawful possession of intoxicating liquors, the evidence considered and held sufficient to sustain the conviction.

      Appeal from County Court, Okmulgee County; Mark L. Bozarth, Judge.

      S. D. Hoffman, convicted of a violation of the prohibitory law, appeals.
    Affirmed.

      E. M. Carter, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

S. D. Hoffman, plaintiff in error, and Martha Henderson were jointly charged and tried on an information which after alleging time and venue charged that they, “did have the possession of certain intoxicating liquors, to-wit, about five gallons of Choctaw beer, the same being an imitation of, and substitute for beer, containing moré than one-half of one per centum of alcohol, measured by volume, and capable of being used as a beverage, with the unlawful and wilful intent of bartering, selling, giving away and otherwise furnishing the same.” The jury found Hoffman guilty on the 11th day of January, 1915, the court rendered judgment and sentenced him to be confined in the county jail for a period of thirty days and to pay a fine of one hundred dollars. From the judgment he appealed.

The testimony taken upon the trial was substantially as follows:

Bill Green, Jim Anderson and Bill Brush each testified that they were in the city of Okmulgee on the day alleged in the information and together that night went to a house near the depot where some negroes lived; that they “chipped” in and gave a negro fifty cents for a half gallon of “Choc” beer and while they were drinking it on the porch of the house the sheriff came up and spoke to the negro that sold them the beer. That there was no other negro man at the house that, night.

Orvel Thompson testified that he was sheriff of Okmulgee county and knows the witnesses Bill Green, Jim Anderson and Bill Brush, and saw them at Martha Henderson’s house in Okmulgee drinking Choctaw beer, that they told him that they had just bought the beer from Ploffman and S. D. Hoffman was standing, there at the! time with these white boys, that he did not remember .whether Hoffman denied selling the beer' at the time or not, that he examined the premises and found two cans with “Choc” in them, one under the house and one under the porch; that the cans together contained five or six gallons ;• that he took the beer that the boys had bought and had it analyzed by Dr. Little.

Dr. W. G. Little testified that he was a graduate of Rush Medical college and had been practicing medicine in Okmulgee for twelve years, that he had experience in analyzing liquids and knew how to analyze “Choc” beer, that he analyzed the contents of the bottle that the sheriff brought to him and his analysis showed that it contained about nine per cent of alcohol. The analysis was made a day or two after the sheriff gave him the bottle.

On the part of the defense Martha Henderson testified that the three white boys who testified as witnesses came to her house and asked her if she had any “Choc” beer and she told them “that she did not make it any more now, that maybe her brother-in-law, Henry Shaw could tell them where to get it;” that nobody waq there at that time but she and Henry Shaw; that she was sick in bed but heard Shaw tell the boys “I can go and get you some,” that she did not know where Henry Shaw is now. That S. D. Hoffman was not there at the time; that Sheriff Thompson was not there at that time but came shortly after.

As a witness in his own behalf the defendant S. D. Hoffman testified that Sheriff Thompson arrested him jthat evening in Martha Henderson’s yard; that some white boys were there drinking Choctaw beer at the time; that Martha Henderson’s brother-in-law, Henry Shaw and her brother Joe Doane were there that night before the sheriff came; that he did not sell or furnish the boys who testified as witnesses any Choctaw beer.

It is contended that the court erred in overruling the motion in arrest of judgment, “Because said information charges or attempts to charge two separate and distinct offenses,” in that it charges, “The possession of certain intoxicating liquors, to-wit, ‘ about five gallons of Choctaw beer, the same being an imitation of and substitute for beer.”

It appears from the record that no demurrer was interposed to the information and the record shows that the first objection to the information was made in the motion in arrest of judgment. An accused person may take advantage of a defective information by demurring thereto before the trial and' the function of the demurrer which was not resorted to by the defendant, is to defeat the information without a trial, whenever it appears upon the face thereof that it is subject to one or more of the five objections named in the statute. Proc. Crim. section 5791 Rev. Laws. These objections can be taken only by demurrer “except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under a plea of not guilty, and in arrest of judgment.” Section 5799 Rev. Laws.

Stone v. State, 12th Okla. Cr. —, 155 Pac. 701.

Upon the record before us we cannot consider the question relating to the information because it was not properly raised as authorized by statute in the court below, and hence was in effect waived.

A further contention is that the evidence was insufficient to sustain the verdict. In our opinion the testimony was amply sufficient to support the verdict of the jury and the defendant has .been afforded a "fair and impartial trial. The judgment-of the trial court is therefore affirmed.

ARMSTRONG, J., Concurs.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    HERSCHEL CAMPBELL v. STATE.
    No. A-2518.
    Opinion Filed May 6, 1916.
    (157 Pac. 49.)
    1. EVIDENCE — 'Testimony of Accomplice — Question for Jury. "When a conviction is sought on the testimony of an accomplice there must he competent corroborative evidence tending to connect the defendant with the commission of the offense charged, and when there is such corroborative evidence its weight and effect is a matter for the jury to determine.
    .2. INTOXICATING^ LIQUOKS — Criminal Prosecution — Evidence— Sufficiency. In a prosecution for unlawfully conveying intoxicating liquors, the evidence reviewed and held sufficient to sustain the conviction.

      Appeal from County Court, Okfuskee County; T. .H. Wren, Judge.

    Herschel Campbell, was convicted of a violation of the prohibitory law and appeals.
    Affirmed.

      H. L. Burris and A. B. Burris, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of the County Court of Okfuskee county rendered on the 19th day of April, 1915, upon a verdict convicting Herschel Campbell, the defendant of unlawfully transporting and conveying twenty-two quarts of gin and thirty quarts of whisky from a point on the west boundary of Okfuskee county near Paden h> the bridge across Greenleaf creek about two miles southwest of the town of Okemah, and assessing his punishment at imprisonment in the county jail for sixty days and a fine of two hundred and fifty dollars.

The assignments of error question the sufficiency of the evidence to sustain the conviction, and it is contended that the verdict of the jury is based solely upon the uncorroborated testimony of an accomplice.

The evidence for the state was substantially as follows:

Zeb Willis testified that he lived at Shawnee, and on the 15th day of March, 1915, he left there with Herschel Campbell the defendant in an automobile and drove to the Rock Island depot at Dale where they signed up for and received about seventeen' gallons of gin and whisky which they placed in the automobile and started for Okemah, passing through the towns of Prague, Paden, Castle and Boley; that about three o’clock the next morning they stopped near the bridge' across Greenleaf creek and there took the gin and whisky out of the car and hid it; then started on and ran into a mud hole and left the car there;- and walked to Okemah. The automobile, a Ford delivery car belonged to the defendant Campbell.

Dee Hart, a negro, testified that he left Okemah Saturday night and went to Jim Gambell’s and between three and four o’clock that Sunday morning as he was returning to Okemah he passed a car in which 'the defendant Campbell and Zeb Willis were riding and then they passed him in the car; that it was a moon light night, almost as bright hs day and he could tell the car they were riding in from any other car, because it had an iron box behind the driver’s seat; that he noticed there was some sacks in the back end of the car.

Sam Wilson, sheriff of Okfuskee county testified that he arrested Herschel Campbell and Zeb Willis about eight o’clock that Sunday morning and the defendant Campbell told him that his car was stuck in a mud hole near town; and Zeb Willis told him where to find the' whisky and gin and he went about two miles west of Okemah and found five or six sacks containing about sixty or sixty-five quarts of whisky and gin. That he found the car in the road between Okemah and the place he found the whisky; that it was a Ford run-about with an iron box behind the driver’s seat.

As a witness in his own behalf the defendant Campbell testified that he lived on a farm near Shawnee; that Zeb Willis hired and paid him fifteen dollars to take him from Shawnee to Okemah iñ his car; that they started from Shawnee and went direct to Prague, arriving there about sun down and there he had his car repaired and got some gasoline. From Prague they went on through Boley and Zeb Willis told him to stop at the bridge on Greenleaf creek that he had a fellow haul some whisky over there the night before; that when they arrived there Willis got out and went down the creek and came back with a quart of whisky. That before they reached Okemah the car ^bogged;” that they tried to get it out and failed so they left the.car there and walked to Okemah.

It will be observed that the witness Dee Hart identifies the defendant Campbell and Zeb Willis as the men he met in the road riding in a peculiar car which he describes, and he testifies that some sacks were piled up in the back end of the car. This in connection with the hour that they had calculated to arrive at Okemah tends to connect the defendant Campbell with the offense charged. When a conviction is sought on the testimony of an accomplice there must be corroborative evidence tending to connect the defendant with the commission of the offense charged, (section 5884 Rev. Daws), and when there is such corroborative evidence it is for the jury to determine the effect to which it is entitled. This court will not disturb the verdict of the jury and the judgment of conviction, unless it finds that there is not in the record any testimony other than that of the accomplice which tends to connect the defendant with the commission of the offense. This we cannot say upon the record before us. Upon a careful examination of the record we think there is ample and sufficient evidence to sustain the verdict of the jury. The judgment is therefore affirmed.

ARMSTRONG, J., concurs.


author: ARMSTRONG, J.

text:
    E. B. STEPHENSON v. STATE.
    No. A-2040.
    Opinion Filed May 13, 1916.
    (157 Pac. 270.)
    LAKCENY: — Elements of Offense. The facts disclosed "by the record in the ease at bar failed to show a violation of the statute.
    • Appeal from District Court, Garvin County; Hon. R. McMillan, Judge.

    E. B. Stephenson was convicted of larceny and appeals.
    Reversed.

      Carr & Field, for plaintiff in error,

      C. J. Davenport,.Asst. Atty. Gen., for defendant in error.
   ARMSTRONG, J.

The plaintiff in error, E. B. Stephenson, was convicted at the January, 1913, term of the District Court of Garvin county on the charge of larceny and his punishment fixed at a period of one year and one day in the penitentiary.

The charging part of the' information on which the conviction is based is as follows:

“On or about the 15th day of October, 1911, in Garvin County, State of Oklahoma, E. B. Stephenson, late of said county and within the jurisdiction of this Court, ■ did then and there unlawfully, wilfully, maliciously and by fraud and stealth, take, steal and carry away from the possession of W. U. Goodwin of Str'atford, Oklahoma, certain personal property, to-wit: One plow harrow of the value of $7.50; three rolls of poultry netting four feet high of the value of $12.00; two hundred and eight pounds of barbed wire of the value of $6.25; three iron and wire gates bf the value of $13.50; all the property of the said Goodwin & Son, without the consent and against the will of the said Goodwin & Son, and. with the felonious interit then and there on the part of him, the said E. 'B. Stephenson, to deprive the said Goodwin & Son of the above described property and to appropriate the same to his own use and benefit.”

The proof introduced on the part of the state tends to show that the plaintiff in error took certain rolls of wire from the store of the prosecuting witness Goodwin, carried them to his house, a short distance away, and put them in his yar'd. Later he moved to the country and used the wife in repairing the fences around the yard and lot adjoining his home. The original card showing from whence the wire came, cost mark, etc., were never removed. The wire was seen by numerous persons in the yard of plaintiff in error while he lived in the. town of Stratford, and by others after he had moved to the country, a mile or two away, and after the same was placed for use on the farm.. There is a total lack of evidence indicating any effort upon the part of the plaintiff in error to conceal the transaction in any manner. In fact he lived near the store of Goodwin & Son at Stratford, where the wire was seen by witnesses and kept openly in full view of any who might pass the premises.

Plaintiff in error in his defense stated that he purchased the wire from an employee of Goodwin & Son. He told the employee that he was going to need the wire, and was advised that he could purchase the same on account, that he loaded the same on his wagon, and carried it home, expecting to pay for it in the fall, and knew of no displeasure on the part of Goodwin & Son until his arrest. He proved by an overwhelming number of witnesses that he bore a good reputation as a law abiding citizen. Pie had been a school teacher in the neighborhood, and had never been accused of wrongdoing in any way, or at any time.

Upon a careful review of the record, we are of opinion that this judgment of conviction is without merit, and, in fact, is wholly unwarranted under the law and the facts.

The judgment is therefore reversed and the cause is remanded with directions to grant a new trial.

DOYLE, P. J., concurs; FURMAN, J., absent.


text:
    JAMES RADER v. STATE.
    No. A-2494.
    Opinion Filed May 15, 1913.
    (157 Pac. 270.)
    NEW TRIAL — Grounds—Comment of Counsel. Proc. Crim. see. 5881, Rev. Laws, prohibits any comment by a prosecuting attorney in a criminal case on the failure of the accused to testify. The statute is in accordance with the constitutional guarantee against self-incrimination and leaves no discretion in the trial court to refuse to grant a new trial upon the application of the defendant, where the prosecuting attorney violates the prohibition of the statute.

      Appeal from County Court, Pottawatomie County; Hal Johnson, Judge.

    James Rader, convicted of a violation of the prohibitory law, appeals.
    Reversed.

      Park Wyatt, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is prosecuted from a conviction had in the County Court of Pottawatomie county, in which the plaintiff in error, James Rader, was found guilty of unlawfully conveying two gallons of whisky from the depot of the Santa Ee Railway Company in the city of Tecumseh to a point abotit one-half mile from said depot. April 28, 1915, the court rendered judgment in pursuance of the verdict and he was sentenced to be confined for thirty days in the county jail and to pay a fine of fifty dollars.

Of the numerous errors assigned and argued by counsel we deem it unnecessary to discuss more than one. In the trial of the case the defendant did not testify. One of the grounds in the motion for a new trial is that the court erred in refusing to grant the same because the county attprney in his argument to the jury commented on the failure of the defendant to testify as a witness. It appears from the record that in the course of his closing argument for the state the county attorney made some statements to which counsel for the defendant objected to as improper. Whereupon the county attorney continuing said, “None of the witnesses testifying here said or proved that it was for his own use.

“Mr. Wyatt: Defendant objects for the reason it is incompetent, irrelevant and immaterial.
“The Court: Sustained for the reason that it is indirectly commenting upon the defendant not taking the stand.
“The County Attorney: I said that he — not a witness in this case had testified that it was for his own use.
“Mr. Wyatt: The defendant objects.
“The Court: Sustained.
“County Attorney: If the court please I had no intention of referring to the defendant.”

We think the remarks of the county attorney come within the prohibition of the statute, section 5881 Rev. Daws, which provides as follows:

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

The statutory provision is mandatory and when the defendant does not elect to testify as a witness in his own behalf, and the prosecuting attorney in his argument to the jury comments on the failure of the defendant to testify as a witness, such comments constitute reversible error.

Wilson v. Territory, 9th Okla. 331, 60 Pac. 112;

Sturgis v. State, 2nd Okla. Cr. 362, 102 Pac. 57;

Brown v. State, 3rd Okla. Cr. 442, 106 Pac. 808;

Nowlin v. State, 7th Okla. Cr. 27, 115 Pac. 625, 121 Pac. 791;

In .the case of Weinberger v. State, 8th Okla. Cr. 441, 128 Pac. 160, it is said:

“The statute is in accordance with the constitutional.guaranty that ‘no person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided.’ The clear intent of the statute is that the jury in determining their verdict shall entirely exclude from their consideration the fact that the defendant did not.elect to testify, and any reference by the prosecuting attorney in his address to the jury to the fact that the defendant did not testify constitutes misconduct, and, under the terms of the statute, the trial court has no discretion, but must grant a new ■ trial. Every person accused of crime is entitled to a fair trial under the forms of law before he may be convicted.”

It follows that the judgment must be reversed and the cause remanded for a new trial.

ARMSTRONG, J„ concurs.


text:
    CHARLEY LEWIS v. STATE.
    No. 2505.
    Opinion Filed May 13, 1916.
    (157 Pac. 271.)
    1. CRIMINAL LAW — Appeal—Failure to File Briefs — Effect. In a homicide case where the defendant appeals from a judgment of conviction and no brief is filed or oral argument made, this court will examine the record and the evidence and if no error prejudicial to the substantial rights of the defendant is apparent will affirm the judgment.
    2. HOMICIDE — Evidence—Weight and Sufficiency. In a homicide ease the evidence reviewed and held sufficient to support the verdict of the jury finding the defendant guilty of manslaughter in the first degree and assessing' his punishment at fifty years’ imprisonment in the penitentiary.

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

    Charley Lewis, convicted of manslaughter in the first degree, appeals.
    Affirmed.

      James H. Mathews, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Charley Lewis, herein referred to as the defendant, was informed, against for the murder of one Ray Pack.. The verdict was manslaughter in the first degree and fixing the punishment at imprisonment in the penitentiary for the term of fifty years. From the judgment rendered upon the verdict he appeals. No brief has been filed and we are not advised as to what the plaintiff in error complains of or relies upon for a reversal. When the case was called for final submission it was submitted on the record.

The evidence shows that the homicide was committed on First avenue, between “C” and Caddo streets in the city of Ardmore on the 24th day of October,, 1914. The question for the jury on the evidence was, whether the act was justifiable in self-defense, as was claimed by the defendant, or murder or manslaughter in the first degree.

W. A. Jackson was the principal witness for the prosecution. He was the only person besides the defendant who saw the killing and who testified as to what took place at the time. He testified that he conducted the California Cafe on East Main street, Ardmore; that on the day of the killing about eight o’clock he went with Ray Pack to the home of Pearl Lewis, the divorced wife of the defendant to call on a young lady from Ft. Worth, who was visiting Pearl Lewis and Ray Pack was calling on Pearl Lewis. That they left the Lewis home together at half past eleven and after they had turned into First aveñue and going west they met the defendant and he hallooed to Pack, “Throw up your hands you God damn son-of-a-b — ch, I am going to kill you,” and Pack said, “Don’t shoot me Charley,” and the defendant commenced shooting and Pack fired a shot. That they were ten or twelve feet apart at the time and witness ran behind a box car.

Dr. Hardy testified that he inspected the body and found a gun shot wound in the left side that passed through the heart and lungs and it must have caused instant death; that he found three other wounds in the legs and the bones were broken where the bullets struck.

As a witness for the state Pearl Lewis testified that about two months after their marriage she secured a divorce from the defendant; that they had been divorced about a year at the time of the homicide; that Ray Pack, the deceased had been keeping company with her for about two months and they were to be married one week from the day he was killed. That a few minutes after the deceased and Mr. Jackson left her home that night she heard the shooting and with her mother and sister she went to where the shooting occurred and Ray Pack was lying dead on the side-walk.

As a witness in his own behalf the defendant Charley Lewis testified that he married Pearl Lewis in 1912, and they were divorced in 1913; that a short time before the homicide occurred they had agreed to remarry; that he did not know that Ray Pack was engaged to marry his former wife; that along about the 1st of October a circus was in town and as he was trying to get through the crowd at the circus he accidently rubbed against Ray Pack who was with his former wife and Pack pulled a pistol and jabbed him three or four times saying, “Get out of my way you damn son-of-a-b — ch, don’t cross my path again or I will blow your God damn head off.” That several persons told him that the deceased had made threats against him; that on the night the homicide occurred he was on his way to his room and met two men and as he passed them he recognized Ray Pack, who had his hand in his overcoat pocket; that Pack started to run him off the end of the side-walk and he said to Pack, “Don’t start that, you have your little pistol have you.” That Pack said nothing and he then “told Pack a time or two to take his hand off that gun,” that Jackson said something to Pack and Pack pulled a pistol and shpt at him and he commenced shooting at Pack as fast as he could pull the trigger on his automatic. That he shot at Pack because he thought he was trying to kill him, and he was trying to defend himself.

On cross examination he admitted that at the time of the killing he was under a peace bond for carrying a pistol and assaulting Pearl Lewis, his former wife.

Upon the facts, which the foregoing is a brief outline, and as to which there was but little conflict, the case was submitted to the jury by. the trial court in a charge fully and fairly covering the law of the case.

After a careful examination of the record and of the evidence in the case, we are of the opinion that no error was committed by the court on the trial, and that the defendant has been fairly tried and properly convicted. The judgment is therefore affirmed.

ARMSTRONG, J., concurs.


text:
    HUSE MERCHANT v. STATE.
    No. A-2325.
    Opinion Filed May 13, 1916.
    (157 Pac. 272.)
    1. INDICTMENT AND INFORMATION — Requisites of Accusation —Certainty. An information should charge the crime alleged to have been committed with precision and certainty and where an information is so unintelligible as to fail to disclose under what particular provision of the penal code the prosecution is conducted, a demurrer thereto should be sustained.
    2. INDICTMENT AND INFORMATION — Requisites of Accusation ■ — Certainty. One charged with crime is entitled to be advised by the indictment or information of the nature of the offense against which he is to defend.
    3. ASSAULT AND BATTERY — Aggravated Assault. There is no such crime known to the laws of this state as aggravated assault.

      Appeal from District Court, Stephens County; Hon. Prank M. Bailey, Judge.

    Huse. Merchant was convicted of assault and appeals.
    Reversed.

      Bond & Sandlin, for plaintiff in error.

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

Plaintiff in error, Huse Merchant, was convicted at the April, 1914, .term of the District Court of Stephens county on a charge of assault with intent to kill and his punishment fixed at a year in the state penitentiary.

The information upon which, the judgment is based charges that:

“The said I-Iuse Merchant . . .; did wilfully, unlawfully and feloniously, and with malice aforethought, and with a premeditated design to effect the death of one Bill Green, did then and there, with a certain automatic pistol, loaded with powder and balls, being a dangerous weapon, likely to produce death, which the defendant then and there had and held in his hands, made an assault on the said Bill Green, and did then and there attempt to, shoot the said Bill Green with said automatic pistol, and did then and there strike the said Bill Green on the face and head with said pistol, thereby and by the force of said blows did cut and bruise the face and head of the said Bill Green, inflicting grievous and dangerous wounds, done and accomplished with wilful, unlawful and felonious intent, with malice aforethought, and with a premeditated design to kill and murder the said Bill Green.”

The verdict returned by the jury after deliberating and duly considering said cause is as follows:

“We, the jury, drawn, impaneled, and sworn in the above entitled cause, do upon our oaths, find the defendant, Huse Merchant, guilty of an aggravated assault as charged in the information herein and fix his punishment at one year in the state prison.”

Proper objection was made to the sufficiency of the information in due time.

The sufficiency of the verdict was also raised opportunely.

The information does not state an .offense under any one section of statute. Evidently it was the intention of the pleader when he began to charge an attempt to shoot under section 2336, which is as follows:

“Any person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of firearm, airgun or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death or in resisting the execution of any legal process, is punishable by imprisonment in the penitentiary not exceeding ten years.”

He wound up by endeavoring to charge an offense under section 2344, which is the provision penalizing assault with sharp and dangerous weapon with intent to do bodily harm, and is "as follows:

“Any person who, with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or airgun, or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding one year.”

This court has been exceedingly liberal in upholding the sufficiency of poorly drawn informations. We feel, however, that a precedent which would permit prosecuting attorneys to become so reckless in drawing informations as this, would not be in the interest of justice, and is not necessary. If Merchant is to be tried for attempting to shoot at Green, then the information should so charge. If he is to be tried for assaulting Green by striking him either with a club or a pistol, then the information should so charge. It should not attempt to charge both and result in charging neither. The demurrer should have been sustained and a new information filed.

The objection made to the verdict is not necessarily fatal in that the jury fixed the punishment at a year in the penitentiary. This probably is sufficient to indicate clearly that the jury intended to find the defendant guilty of a felony, to-wit: of assault with a sharp and dangerous weapon with intent to do bodily harm. If this was the only irregularity in the record the judgment could be upheld. There is no,such crime known to the laws of this state as “aggravated assault.” If the jury had found the defendant guilty, without fixing the punishment, the judgment would have to be reversed on that ground alone.

There are numerous errors complained of in the petition in error and argued in the brief. The propositions urged, however, are ones that have been previously considered by the court and no necessity is indicated for consuming time in further consideration thereof now.

For the reason that the error discussed so warrants, the judgment is reversed.

DOYLE, P. J., concurs; FURMAN, J., absent.


text:
    JESSE A. REAMS v. STATE.
    No. A-2282.
    Opinion Filed May 13, 1916
    (157 Pac. 273.)
    1. APPEAL — Review—Predjudice From Error. When evidence is introduced on behalf of the state against a defendant whether by improper cross-examination of the person charged, or other persons called as witnesses by him, or by direct examination of state’s own witnesses, which is reasonably calculated to arouse the passions of'the jury against the defendant, and prevent him from having a fair and impartial trial, a conviction resulting under such conditions will be reversed unless .it is made clearly to appear that no injury could have resulted or did result to the accused. . -
    2. HOMICIDE — Evidence—Admissibility. For testimony improperly admitted by the trial court over objections of plaintiff in error, see opinion.-
    3. HOMICIDE — Evidence—Admissibility. Upon the trial of a person charged with murder proof of the relationship existing between such person and his spouse is, as a general rule, inadmissible.
    4. FORMER, DECISION DISTINGUISHED. The doctrine in the case of Capíes v. State, 3 Oída. Or. 72, 104 Pae. 403, 26 L. R. A. (N. S.) 1103, reviewed- and distinguished from the rule declared in the case at bar.
    5. FORMER DECISION DISTINGUISHED. The doctrine in the ease of Goben v. State, 7 Oída. Cr. 190, Í26 Pae. 198, reviewed and distinguished from the rule declared in the case at bar.
    6. TRIAL — Conduct in General. The principal purpose of a criminal trial is to mete out justice and punish the guilty. The trial of one who is guilty must be conducted under such rules as would protect the innocent under like circumstances.

      Appeal from District' Court, Lincoln County; . Hon. Chas. B. Wilson, Judge.

    Jesse Reams was convicted of manslaughter, and appeals,
    Reversed.

      P. A. Rittetíhouse and Hoffman & Poster, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., and Streeter Speakman, for defendant in error.
   ARMSTRONG, J.

Plaintiff in error, Jesse A. Reams, was convicted of manslaughter at the December, 1913, term of the District Court of Lincoln county and his punishment fixed at 15 years in the state penitentiary.

The information charges the plaintiff in error with the murder of Sam Huggins on the 19th day of June, 191.3.

The proof on behalf of the state tends to show that the homicide occurred near Pleasant Grove school.house in Lincoln county on the date alleged. Plaintiff in error lived at Sparks, about 7 miles away; that he had separated from his wife, who lived with her parents 'a short distance southeast of said school house; that plaintiff' in error had filed a petition for divorce some timé previous to the homicide.

Sam Huggins, the deceased, was a single man, and lived about a mile and a half from the home of the parents of Mrs. Reams.

The night of the homicide the plaintiff in error went to the neighborhood school house armed with a revolver. It seems that religious services of some character were being held at the school house. Shortly after he arrived there the deceased, Huggins, and Mrs. Reams, came in together. As soon as the services were completed the plaintiff in error spoke to his wife and told her that he wanted to take her home; that he had come to ask her to go back home and live with him, and he took hold of her but she pulled away from him, seized the arm of Huggins, and started out of the house. Plaintiff in error put his hands in his pockets and was admonished by an- acquaintance .to have no trouble on account of others being endangered. When Huggins and Mrs. Reams went out of the house Huggins turned around, and in an offensive threatening manner admonished the plaintiff in error not to follow him down the road, but plaintiff in error got on his horse and followed any way. A short distance from the school house, probably a quarter of a mile, he overtook his wife and Pluggins. Three shots were heard in succession. A number of people went down to the scene and found Huggins dying in the road. The plaintiff in error and his wife were standing some distance away together.

At the scene of the homicide plaintiff in error made some statement that he had seen the county attorney and certain prominent attorneys of Chandler and that there would be nothing done with him. He was taken in charge by some one present and delivered to the sheriff in Chandler.

The proof on behalf of the plaintiff in error corroborates the main facts offered by the state. In addition, plaintiff in error offers proof by himself and his witnesses that he shot the deceased in his necessary-self-defense.

The deceased was apparently armed with a slung-shot. One was found under his body as he lay on the ground immediately after the shooting. The plaintiff in error says: “That when he rode up to the deceased and his wife, deceased made an effort to injure him; and, as he thought, to shoot him, and he shot in his own necessary defense.

In addition, it was shown that the plaintiff in error had warned deceased to stay away from his wife and - discontinue keeping company with her. Also that he had been endeavoring to effect a reconciliation with his wife and had offered to take her back and support her and their child. Two letters were taken from the body of deceased, and offered in evidence, one of which was addressed to him and the other addressed to- Mrs. Reams. The letters are as follows:

“Sparks, Okla. 5-8-1913.
Mr. Sam Huggins.
Dear- Sir:
I hereby notify you to stay away from my wife as you have been keeping company with her regular for some time. This is all the warning you will get. If you have any excuse write me tomorrow. You are persuading her to do things that she would not do if you would let her alone and so hoping you will not cause any more trouble. Sam if you dont want any. body to know about this letter keep your mouth shut and stay away from her and wont anybody know anything about it. If you are not careful you will keep on till you let that bunch get you into serious trouble.
Yours very respectfully,
J. A. Reams.”
“Sparks, Olcla. 6/17
My dearest Darling little Wife and Baby Boy.
How are you and how is little Clifford hope he is well by this time. Darling the time is growing short only a few days yet, Honey till we will be separated forever and oh Honey are you going to let it be that way. I am still willing to withdraw that suit and take you and Clifford back and Honey I will acknowledge Clifford as my Baby, yes Kid he is my own Darling little Boy and Darling I am not afraid to claim you and him for my own and forever I am willing to trust you. I know. Honey you have done a good many things wrong but Darling I know I was the cause. If I had of treated you wright you would not have done it and Darling are you going to give up your home and all your money you have got here to run around to dances for a little while so' Darling in the name of God please stop that and come on home and go to living right for Honey it may not be long till you will Die and then we would be separated forever and Honey you will go somewhere and I fear Sweet Heart it will be to the Bad World for you know you are not doing right. I was with another girl Saturday night Sunday and Sunday night but Darling my heart and love was with you and Clifford. Lucy I am not mad at your papa, tell him I am not for I could get mad at my father as soon. Now Sweet Hart please do come home today. Honey I don’t feel lik.e God would ever forgive me for the way I have treated you if I don’t take you back. While I have said I would not many times but I have changed Kid in every way and Honey you see everything different and Darling I have got plenty to make you happy now. Lucy I got my salary raised again back eleven hundred dollars so you see I have got the shortest route and the least mail to handle and the same salary, now I will get back pay from the first of January. Darling read this letter to your papa and mama. I know Honey they are keeping you away from me if they would not persuade you not to come you would be with me a long time ago now Darling please come home and 'lets be happy for Darling life is too short for us to go through unhappy and Darling I don’t want to have anything to' do with any other girl for I wouldn’t be satisfied, and I feel ashamed when I am with another girl so please make up your mind to come home and settle down and do right. Please ans and come home so I will close for this time. Answer soon. Good by my Darling little Wife and Baby boy.
Love and kisses.
Jesse.”

The plaintiff in error testified that he was fond of his wife and desired to have her live with him, and went to the school house, not for the purpose of seeking trouble, but for the purpose of endeavoring to persuade her to return home with him, and that he killed the deceased in his necessary self-defense.

There were no eye witnesses to the shooting who testified at the trial except plaintiff in error.

On re-buttal the state offered in evidence the divorce petition which had been filed by the plaintiff in error against his .wife, which is as follows, omitting formal parts:

“That he is now and has been for more than one year last past and next preceding the filing of this petition an actual resident in good faith of Lincoln County, State of Oklahoma.
That plaintiff and defendant were married at Chandler, Lincoln County, State of Oklahoma, on the 6th day o'f March, 1909.
' That at the time of plaintiff’s marriage with defendant without the knowledge of this plaintiff the defendant was pregnant by another than this plaintiff, her husband.
Wherefore plaintiff asks for a decree of absolute divorce from the defendant.
Hoffman & Foster, Attorneys for Plaintiff.”

Further the state introduced testimony tending to establish the fact that plaintiff in error was guilty of improper proposals to a married woman named Carnes, and a married woman by the name of Paul. In this connection the record discloses the following proceedings:

“Q. State your name? A. Paul is my name.
“Q. . Just talk loud ? A. Francis Paul is my name.
“Q. Where do you live, Mrs. Paul? A. Sparks.
“Q. You know the defendant in this case, Jessé A. Reams? A. I- am personally acquainted with him.
“Q. Do you remember the homicide wherein Sam Pluggins lost his life that occurred the 19th day of June? A. No sir, I do not.
“O. I say do you remember hearing of when that occurred? A. Yes, sir.
“Q. I will ask you if previous to that two or three or four weeks you had a conversation with the defendant at your house, your home ?
“Mr. Foster: Objected tq as incompetent, irrelevant and immaterial, tending to prove no issue in this case, an attempt to impeach the defendant on immaterial matter.
“The Court: Overruled, answer yes or no. A. Yes, I did.
“Q. State what the defendant said there at that time.
“Mr. Foster: Object to this, as incompetent, irrelevant and immaterial, tending to prove no issue in this,case.
“Q. State what he' did.
“Mr. Foster: Wait.
“The Court: Objection overruled.
“Mr. Foster: To which ruling the defendant excepts.
“A. I don’t understand the question.
“Q. You had a conversation with the defendant?
“Mr. Foster: Ret her answer the question.
“The Court: Read the question.
“Q. State what he did? A. What he did?
“Q. Yes, what the defendant did and said there at that time?
Mr. Foster: Object to question as reason before, incompetent, irrelevant and immaterial, tending to impeach on collateral matter.
“The Court: Objection overruled.
“Mr. Foster: To which ruling the defendant excepts.
“A. Do you mean a conversation about this same case?
“Q. No. A. He came to the house and asked me for his laundry, I was doing his washing at the time and he asked me for the washing and I gave it to him and he asked me what the price was and I said fifty cents and he paid me.
“Mr. Foster: Objected to as incompetent,.irrelevant and immaterial, move to strike it out and the jury instructed not to regard it.
“The Court: That part is immaterial and.is withdrawn from your consideration.
“Q. Go ahead. A. He says to me, 'Can’t you make a living easier than washing?’ and I says, 'Not that anybody knows of’ and—
“Mr. Foster: Objected to as incompetent, irrelevant and immaterial.
“The Court: Objection' overruled.
“Mr. Foste’r: To which ruling the defendant excepts.
“A. And he says, T will give you a dollar if you will go in the other room and satisfy me for a little while’ and I says, ‘No, sir, you leave this house in a hurry.’ He was carrying mail. That is all.
“Mr. Foster: Move to strike out this testimony as incompetent, irrelevant and immaterial, tending to prove no issue in this case.
“The Court: Objection overruled.
“Mr. Foster: To which ruling the defendant excepts.
“Q. After this, after the homicide, did you have a conversation with the defendant about this matter?
“Mr. Foster: Object to this as incompetent, irrelevant and immaterial, not an impeaching question and cannot be proven, part of his case in chief.
“The Court: Objection sustained.
“Mr. Speakman: The Court won’t hold Í can’t corroborate this testimony.
“The Court: I don’t think that is corroborative, if one statement is true, probably the other statement is true.”
“Q. State your name. A. Emma Carnes.
“Q. Where do you live, Mrs. Carnes ? A. Sparks.
“Q. Are you a married woman? A. Yes sir.
“Q. Married at this time? A. Sir?
“Q. Are you married at this time? A. Yes sir.
“Q. Were .you married in June of this year? A. No, I was married two years ago last January.
“Q. You was a married woman in that month, wasn’t you, in June this year? A. Yes sir.
“Q. Do you know the time on the 19th of June, of the homicide of Sam Huggins, do you remember that time? A. I guess so.
“Q. State if previous to that time you was in the company with the defendant, Jesse Reams?
“Mr. Foster: Object to this as incompetent, irrelevant and immaterial, tending to prove no issue in this cáse.
“The Court: Sustained at this time; I think the time ought to be fixed.
“Q. I will ask you if on Sunday previous to this homicide you was in company with the defendant Jesse Reams in Church?
“Mr. Foster: Object to this as incompetent, irrelevant and immaterial, not proper rebuttal evidence, not impeaching testimony, it is on an immaterial matter.
“The Court: Objection overruled.
“Mr. Foster: To which ruling the defendant excepts.
“Q. Just state.
“The Court: You may answer the question.
“A. If I was with him on Sunday previous to that?
“Q. Yes. A. Not previous to the shooting, I think.
“Q. When was it?
“Mr. Foster: Objected to as incompetent, irrelevant and immaterial, tending to prove no issue in this case.
“The Court: Objection sustained.
“Q. Was it the second Sunday?
“Mr. Foster: No foundation laid for this, it is impeaching evidence.
“The Court: Do I understand you are going to carry this on?
“Mr. Speakman: No sir, just what I talked over with you in the room.
“The Court: I understand the witness to say she wasn’t with him Sunday prior to the shooting.
“The Court: Did you answer you wasn’t with him prior to the shooting? A. No, only he was at our house for meals.
“Q. You wasn’t with him at the church? A. Not that Sunday.
“Q. Not that Sunday?
“The Court: Objection sustained.
“Q. In order to refresh your memory I will ask you if—
“Mr. Foster: Object to this as incompetent, irrelevant and immaterial. ' • '
“The Court: Objection sustained, the question was ruled out.
“Q. I will ask if previous to this homicide you was with the defendant at church?
“Mr. Foster: Object to this as incompetent, irrelevant and immaterial, not proper impeaching question.
“The Court: Objection sustained.
“Mr. Speakman: It was on the same occasion. .
“The Court: You may ask about that if that isdhe purpose to ask about that proposition you may do so.
“Q. Just state whether or not you was with the defendant at church at the school house near Sparks previous to this homicide.
“Mr. Foster: Objected to as incompetent, irrelevant and immaterial.
“The Court: Objection overruled.
“Mr. Foster: To which ruling the defendant excepts.
“A. I was at church with him.
“Mr. Foster: Object to this unless the time is fixed.
“Q. How long before the homicide was that, do you know? A. I judge it was about two weeks.
“Q. Two weeks. Just state— did you go home with him? A. Yes, sir.
“Q. Just state what the defendant said to you or if he made any proposals to you on the way home?
“Mr. Foster: Object to this as incompetent, irrelevant and immaterial.
“The Court: Objection overruled.
“Mr. Foster: Not-proper rebuttal or impeaching testimony.
“The Court: It is proper rebuttal.
“Mr. Foster: If he brings out part of a conversation we could bring out all of it and it is never competent. What is the rebuttal part, that he had the conversation.
“The Court: No sir, that is proper to show his relation and attitude towards his wife, it may be taken into consideration by the jury for that purpose.
“Mr. Foster: To which ruling the defendant excepts.
“Q. Just state what he said to you? A. Coming home from church?
“Q. Yes, mam.
“Mr. Foster: Object to this last question as above.
“The Court: Objection overruled.
“Mr. Foster: To which ruling the defendant excepts.
“A. He said if lie would promise me to marry me would I let him have his way.
“Q. If he promised you to marry you would you let him have his way? A. Yes sir.
Take the witness.
“Mr. Foster: Move to strike the answer out as incompetent, irrelevant and immaterial, not tending to prove any issue in the case, a provisional question that doesn’t show any present proposal and doesn’t show any element of it could be followed by either party for the woman testified herself she was married at the time herself and we know he was married. It is a question • anybody could ask a woman; ‘If I will promise to marry you will you let me have my way?’
“The Court: It is a question that is susceptible to more than one interpretation. The jury might infer he had one meaning and in fact he had another and perfectly proper meaning. I will let it go. It may go.
“Mr. Foster: To which ruling the defendant excepts.”
CROSS EXAMINATION.
By Mr. Foster:
“Q. He always treated you as a gentleman, didn’t he? A. Yes sir.
“Q. As far as you know he is a perfect gentleman? A. Yes sir.
“That is all.”

The admission of this testimony was assigned as grounds for a new trial in the motion ■ for a new trial, and is assigned as grounds for reversal in this court.'

It is contended on behalf of the plaintiff in error that the testimony last referred to was highly prejudicial to his rights, and under no state of the case competent for any purpose, and that his contention is sound, and supported by an unbroken line of authorities.

It is contended, on behalf of the state that the testimony in question was admissible for the reason that plaintiff in error voluntarily raised the issue of his affection for his wife. Therefore, and on account of the fact that he had testified that he still loved his wife and still desired her to live with him, the^-state contends that he voluntarily introduced the issue in the case, and therefore it was not only the privilege, but the duty of the prosecuting attorney to introduce this testimony in question to show what he terms “the true relation” between plaintiff in error and his wife.

We are unable to see that the issue here in question has any material bearing upon the real issue in this case, to-wit: Whether or not the plaintiff in error was guilty of the murder of Sam Huggins.

Counsel for the state rely on the doctrine announced by this court in Caples v. State, 3rd Okla. Cr. 72, 104 Pac. 493, as justifying his position in attempting to and in securing the introduction of the testimony herein set out.. Capíes was charged with killing Finley. ’ In his defense he offered testimony to show that he assaulted Finley because the latter had insulted his wife by offering her money to have sexual intercourse with him. The court admitted this testimony for the purpose of allowing the jury to consider the same in mitigation of punishment, if it should find the accused guilty. In turn the state was permitted to show that the accused was living in a house of prostitution wherein inmates who had been tried and convicted of immoral conduct resided and were the principal occupants, and on that account Capíes knowing all these things had subjected his wife to these conditions voluntarily, therefore the state had a right to meet the proof offered, not as a part of its case but to prevent the jury from being misled as to the truth, and thereby administer an inconsequential punishment.

In discussing this proposition this court, in affirming the conviction, held: That Capíes having injected that issue was not in a position to complain when the state showed that as a matter of fact Capíes had carried his wife to an immoral resort and subjected her to such suggestions. And among other things, the court said: (3rd Okla. Cr., p. 91, 104 Pac. 501, 26 L. R. A. (N. S.) 1033.)

“When a man marries a woman to escape prosecution for her defilement, and takes his wife into an immoral resort, and absents himself from her and leaves her to come in personal contact with the lecherous libertines who congregate at such places, he has no one but himself to blame if she is improperly approached. When under these circumstances the defendant claims that such an insult constitutes mitigation for attempting to kill the party making it, it is clearly the right of the jury to know the defendant’s action in exposing his wife thereto, as well as other facts which would shed any light upon the transaction, in order that they may understand the true motives of the defendant in making the assault, and determine as to whether or not it constituted mitigation or aggravation; whether the assault was the result of wounded honor, or grew out of a desire to establish the reputation of being a dangerous man. The defendant having voluntarily injected this issue into the case, is in no condition to complain at the action of the court in admitting the evidence objected to. Having opened the door of inquiry as to this matter, he cannot in reason and justice demand that it be closed before the state had been heard in reply. Under these conditions he cannot say that the evidence admitted was improper, although under other conditions it would have constituted reversible error. This question has already been passed upon by this court adversely to defendant’s contention in the case of Cannon v. Territory, 1 Okla. Crim. 600, 99 Pac. 622. In the light of the entire record there was no error in the rulings of the trial court on this question.”

The doctrine in the Capíes case is not applicable to the facts disclosed by the record before us. There is nothing in this record to indicate that this plaintiff in error ever at any time subjected his wife to improper proposals from other men, or at any time condoned or tolerated such conduct. The quotation from the Capíes case indicates the condition what the record discloses in that case. The language used by the court in the opinion must be applied to the state of facts under discussion and not to a general doctrine that the state can show the true relationship existing between a person charged with crime and his wife under any and all circumstances.

The doctrine in the Capíes case and the reason therefor is clearly distinguishable from the doctrine contended for by counsel for the state in the case at bar.' No such issue is raised in this case as was under consideration in the Capíes case.

Counsel for the state further contends that the testimony in rebuttal 'was admissible for the purpose of impeaching the plaintiff in error. This contention is without foundation. One cannot, as a general rule, be impeached upon an immaterial or collateral issue, nor upon statements as to immaterial matters brought out on cross examination.

Counsel for the state further contends that the doctrine laid down by this court in Goben v. State, 7th Okla. Crim. 190, 122 Pac. 198, where a person on trial for crime makes a voluntary statement on the witness stand, although it may not be relevant to the issue on trial, the state has a right to go fully into the facts on cross examination and in rebuttal.

The rule in the Goben case has no application to the doctrine contended for by counsel. In the Goben case, plaintiff in error testified in his own behalf and voluntarily stated that he had been granted the privilege of selling whiskey by the county attorney, and offered that testimony as a defense, and went at length into details: The county attorney, in turn, in common fairness and justice to himself was permitted to' prove that the accused was lying. A public officer has the right to refute such charges by offering testimony to show that they were absolutely false. We simply held that this was not error because of the circumstances under which it occurred. The testimony in question in the case at bar was not only incompetent for the purpose for which it was offered but was incompetent for any purpose. ■ The defense here was not based upon any contention that the county attorney had authorized the killing in question. The remark objected to by the county attorney is insignificant. The record before us indicates that he was more than zealous in the prosecution of the plaintiff in error. When the state went into cross examination of plaintiff in error, and asked him about his relationship with the woman Carnes? and the woman Paul, error was committed and even though it had not been when the plaintiff in error denied having any improper relation with them, or making any improper proposals to them, the state was bound by the answer and could, go no further. The issue was entirely foreign to the merits of the case and highly prejudicial.

It is a matter of common knowledge among those who are versed in court affairs, and especially in the trial of criminal lawsuits, that many times, the injection of issues foreign to the merits of the case so affects the minds of the jurors that a fair and impartial trial and a just verdict cannot be had.

The disclosures offered by the testimony in question are such that no doubt serious prejudice was aroused in the minds of the ’jury against plaintiff in error. Regardless of his culpability and his relationship with other women he had the right to be tried fairly and impartially on the charge of murdering Huggins, and not to be prejudiced by the injection of testimony which tended to show he had made improper proposals to the wives of other men. To approve the introduction of this class of testimony and undertake to modify a judgment so that substantial justice would result would be assuming a heavier burden than this court feels warranted in undertaking. We feel, therefore, that the judgment should be reversed, and plaintiff in error granted a new trial, and it is so ordered.

DOYLE, P. J., concurs.


text:
    S. D. STOKES v. STATE.
    No. A-2293.
    Opinion Filed May 13, 1916.
    (157 Pac. 278.)
    INDICTMENT AND INFORMATION — Variance — Name of Accused. The information in the case at bar was filed against M. E. Stokes, whom the proof shows to have been the owner of the merchandise sold. The prosecution was conducted against S. D. Stokes. There is no attempt made to explain the reason for this condition. Held, that the prosecution should have been conducted, if at all, against M. E. Stokes, and not against S. D. Stokes. S. D. Stokes might possibly be a party, but the principal prosecution should be against the owner.

      Appeal from County Court, Pontotoc County; Hon. I. M. King, Judge.

    S. D. Stokes was convicted of violating the bulk sales law, and appeals.
    Reversed.

      C. O. Barton, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for defendant in error.
   ARMSTRONG, J.

The plaintiff in error, S. D. Stokes, was convicted at the April, 1914, term of the County Court of Pontotoc county on a charge of violating the bulk sales law (Rev. Taws, 1910, Secs. 2903-2905), and his punishment fixed at a fine of two hundred dollars ($200.000).-

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

“That the above named defendant M. E. Stokes, late of Pontotoc County, did, in the year of our Eord One Thousand Nine hundred and Thirteen commit the crime of False Representation in the manner and form as follows: That is to say the defendant did, in said County and State, at the date above named sell, transfer and deliver a certain entire stock of goods, wares and merchandise, in bulk in the City of Ada, Oklahoma, to one J. P. Pool, for a good and valuable consideration; that the said J. P. Pool, said transferee, before said transfer was made, in good faith, made a full and explicit inquiry of the said M. E. Stokes, said transferrer, as to the names and address of each and all of his creditors; that said transferrer knowingly or wilfully made to said transferee false and incomplete answer to said inquiries, by then and there knowingly, falsely and wilfully answering and representing to said transferee that there were no creditors unpaid, or that there were no charges or claims outstanding against said entire stock of goods, wares or merchandise, when in truth and in fact the said M. E. Stokes, said transferrer, then and there well knew that there were various creditors who had and held claims against said stock of goods, wares and merchandise, and that he the said M. E. Stokes, said transferrer, had not paid for same, contrary to, the form of the statutes, etc.”

A warrant was issued calling for the arrest of M. E. Stokes. S. D. Stokes was arrested and brought into court, pleaded to the information, and gave his true name as S. D. Stokes.

The proof in the record on the part of the state tends to establish the fact that M. E. Stokes owned a merchandising establishment in Pontotoc county, that the business was conducted by S. D. Stokes, that a sale of the merchandise was made in bulk to witness Pool, that Pool asked for a list of the creditors and was told that there were no debts except a small account to Waters-Pierce Oil Company. At a later date Bell-Wayland Grocery Company brought a suit, and attached the stock of merchandise, which was sold under court order. There appears to be other creditors also who were unpaid.

The proof on behalf of the plaintiff in error tends to establish the fact that the store was sold to the witness, Pool, that he was told who the creditors were, that the stock invoiced $984.89; that the debts amounted to $554.14, that the witness Pool paid $200.00 in cash, and a note secured by chattel mortgage for $150.00 more, and assumed the payment of the debts.

The statutes under which the prosecution is brought are 2903 and 2904, Revised Laws of 1910, section 2903 being as follows:

“The transfer of any portion of a stock of goods, wares or merchandise otherwise than in the ordinary course of trade, in the regular and usual prosecution of the transferrer’s business, or the transfer of an entire stock in bulk shall be presumed to be fraudulent and void as against the creditors of such transferrer and such presumption may be rebutted only by a proposed transferee showing that, at least ten days before the transfer, and in-good faith, he made a full and explicit inquiry of the transferrer as to the names and addresses of each and all of his creditors, and that he demanded and received from such transferrer at least ten' days before such transfer a list of the names and addresses of all of the creditors of such transferrer, showing the amount owing each, which statement must be sworn to by such transferrer, and the oath shall include a declaration that it is a correct list of all of his creditors with the postoffice address and the amount owing each; and that, at least ten days before such transfer, the transferee notified or caused to be notified, of such proposed' transfer, personally or by registered mail, each of the creditors of the transferrer of whom such transferee had knowledge or could, with the exercise of reasonable'diligence acquire knowledge; and that such purchase was made by him in good faith for a fair consideration, actually paid.”

Section 2904 is as follows:

“If such transferrer shall knowingly or wilfully make to such transferee any false or incomplete answer to such inquiries, such transferrer shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by confinement in the county jail not less than sixty days, or by fine of not less than one hundred dollars, or by both such fine and imprisonment.” ,

It will, be noted that the information in this case is filed against M. E. Stokes. The prosecution is conducted against S. D. Stokes. It will be noted also that the proof in the case shows that M. E. Stokes owned the business. There is no contention to the contrary. Just why S. D. Stokes should be tried and convicted of the offense is not made clear by the record nor by the proof submitted on the part of the state. The merchandise in question was not transferred by S. D. Stokes, to Pool. No such claim is made. The transfer was made by M. E. Stokes. We are therefore of the opinion that the prosecution was improperly brought and judgment unlawfully rendered against S. D. Stokes.

For that reason the conviction is erroneous and the judgment void. If a prosecution is to be conducted in the cause the information should be properly drawn and the prosecution pressed in the manner provided by law.

The judgment is reversed and the cause remanded with directions to proceed according to law.

DOYLE, P. J., concurs; FURMAN, J., absent.


author: PER CURIAM.

text:
    R. M. GAMBLIN v. STATE.
    No. A-2436.
    Opinion Filed May 20, 1916.
    (157 Pac. 367.)
    1. TRIAL — Argument of Counsel. Argument of counsel outside of the evidence which is highly improper and intended or calculated to excite the passions and influence the minds of the jury against the defendant, should he,, properly checked upon objection made, and where the trial court overrules the defendant’s objections and refuses to instruct the jury to disregard such statement, and it appears that such improper argument may have determined the verdict, a new trial will be granted.
    2. APPEAL — Review—'Discretion of Court. In the trial of a criminal case, the taking of a recess that the state might procure the ' attendance of an absent witness is a matter within the sound discretion of the court and such order of the court will not be reviewed unless an abuse of discretion appears.

      Appeal from County Court, Stephens County; J. W. Marshall, Judge.

    R. M. Gamblin was convicted of a violation of the prohibitory law and appeals.
    Reversed.

      Bond & Sandlin, for plaintiff in error.

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

This appeal is prosecuted from a judgment of the County Court of Stephens county, wherein the plaintiff in error was sentenced to pay a fine of one hundred dollars and to be confined in the county jail for thirty days.

The information charged that plaintiff in error, Mack Gamblin, unlawfully conveyed whisky from his residence in Duncan to a point on 8th street in said city.

The evidence for the state was substantially as follows:

P. M. Latham testified that he was standing with R. L. Pearson in Ray’s wagon yard in Duncan and saw Mack Gamblin go from his barber shop down to his house and then start back and with Pearson he started after him and the defendant pulled three bottles out of his pockets and threw them down on the side walk and broke them; that the stuff in the’ bottles smelled like whisky.

R. L. Pearson, deputy sheriff, testified that he was with the witness Latham when they picked up the broken bottles and he smelt and tasted the stuff and “took it to be whisky from the way it smelled and tasted.”

His cross examination was in part as follows:

“Q. Did you testify before the United States Commissioner at Chickasha in this same case against this defendant? A. Yes, sir.
“Q. Did you tell the United States Commissioner that you tasted this stuff? A.. No sir.
“Q. Didn’t you tell the commissioner that it smelt like whisky but a very little? A. I might have told him that.
“Q. And you are sure you did- not tell him that you tasted this stuff? A. No sir-, he did not ask me that question.
“Q. Didn’t he ask you how you knew it was whisky? A. He asked me if it smelt like whisky.
“Q. Didn’t he ask you if you would swear that it. was whisky ? A. I don’t believe that he asked that question.
“Q. And on your evidence and the evidence of the other witnesses the Commissioner refused to bind this defendant over? A. Yes sir.
“The Court: The objection is sustained.
“Q. Didn’t the United States Commissioner at the time of that trial tell Mack Gamblin that he thought he was a boot-legger ? A. Yes, sir.
“Defendant objects to remark of County Attorney.
“The Court: Sustained. The jury will not consider the last question and answer.”

The defendant moved the court to direct a verdict of acquittal on the ground that the evidence was insufficient to establish the commission of the offense charged. Which motion was overruled and exception allowed. .

For the defendant Mrs. Ellen Gamblin testified that she was the wife of the defendant R. M. Gamblin; that on the morning in question he returned from the barber shop to his home and got three bottles of hair tonic; that her husband makes and sells hair tonic. That she was present when R. L. Pearson testified as a witness before the U. S. commissioner against her husband on this same charge and the commissioner asked Mr. Pearson if he tasted the stuff that was in the bottles and Mr. Pearson answered “No I did not taste it.”

Mrs. Eena Langston testified that she and her husband roomed at the Gamblin home and that when the defendant returned to his house that morning she saw him take two or three bottles of hair tonic with him when he left; that she and Mrs. Gamblin helped him to make the hair tonic. That she was present and heard R. L. Pearson testify in this case on the federal charge before the United States commissioner “and the commissioner asked him how he knew it was whisky and he said it smelled like whisky, and the commissioner asked him if he tasted it and he said he did not taste it.”

R. L. Pearson recalled as a witness for the defendant testified that he searched the defendant’s house that morning for whisky and did not find any but did see some bottles in a cabinet in the kitchen but could not say that there was not hair tonic in the bottles. James Taylor testified that he was a barber working in the defendant’s shop. That the defendant made and put up hair tonic that it was máde of sage tea, salt and enough alcohol or whisky to preserve it.

As a witness in his own behalf R. L. Gamblin, the defendant testified that he had been engaged in. the barber business in Duncan for about fifteen years; that he made and sold hair tonic and used it in his barber shop, and in the summer time put a tablespoonful of whisky or alcohol in it to preserve it. That he had sold it in that community for more than ten years. That the bottles he broke that morning contained hair tonic and did not contain whisky; that he broke the bottles because he believed the officers would arrest him if the tonic contained as much as a spoonful of whisky and that he did not know what they might do. That on his hearing before the U. S. commissioner on a federal charge, based on the’ same facts in this case R. L.’ Pearson as a witness for the government in answer to the direct question said “he did not taste it.”

' The first assignment of error is that the court erred in excusing the jury after a jury was sworn.

It appears from the record that after the jury had been impaneled and sworn to try the case the court against the objection of the defendant suspended the trial and took a recess that ’the state might procure the attendance of an absent witness. It ’further appears’ that about thirty minutes later the absent witness having appeared the trial proceeded.

The precise question here presented was passed upon by this court in the case of Havill v. U. S., 5th Okla. Cr. 334, 115 Pac. 119, wherein it was held that the suspension of the proceedings in a trial is within the sound discretion of the trial court, and such order of the court will not be reviewed unless an abuse of discretion appears.

It is claimed the private counsel assisting the county attorney was guilty of such misconduct in his closing argument to the jury as to call for reversal of the judgment.

From the record it appears that the special prosecutor in his closing address to the jury used the following language: “The next time you will get some i other bootlegger up here they will be citing him to this bootlegger and asking why they don’t go down on Main street and get him.” To which remarks of Mr. Bridges who assists in the prosecution of this case, the defendant objects and excepts. Which objection-is overruled by the court and exception allowed. Defendant moves the court to instruct the jury not to consider the statement of Mr. Bridges in referring to this defendant as a bootlegger. Which motion is by the court overruled and exception allowed. “Which remarks and exceptions thereto was one of the ground of the motion for a new trial.”

In a close case like this we think that the rulings complained of were erroneous and constitute reversible error. Counsel for the state must confine their argument to a fair discussion of the issues in the case and when improper remarks are made by státing facts not in evidence or by appealing to the passions and prejudice of the jury the strength of the testimony against the defendant will be considered, and if the improper argument may have determined the verdict, a new trial will be granted.

Watson v. The State, 7th Okla. Cr. 590, 124 Pac. 1101;

Mulkey v. The State, 5th Okla. Cr. 76, 113 Pac. 532.

Obviously the remarks of the private prosecutor in this case were highly improper as there was not a scintilla of testimony tending to show that the defendant was a bootlegger and the court erred in refusing to properly charge the jury with reference to the matter when requested so to do by counsel for the defendant. Under these circumstances the defendant cannot be said to have had a fair and impartial trial. It follows that the judgment should be and the same is hereby reversed.


text:
      In re VINCENT KERRIEL.
    No. A-2635.
    Opinion Filed May 20, 1916.
    (157 Pac. 369.)
    1. HABEAS CORPUS — Proceedings—Burden of Proof. Upon an application for writ of habeas corpus to be let to bail after commitment for a capital offense by an examining magistrate, the burden is upon the petitioner to show facts sufficient to entitle him to bail, when those facts do not appear from the evidence adduced on the part of the prosecution.
    2. BAIL — Proceedings—Evidence—Sufficiency. If upon a consideration of all the evidence introduced on the application for bail the court is of the opinion that it is insufficient to create a reasonable doubt of the petitioner’s guilt of a capital offense, bail will be refused.
    3. HABEAS CORPUS — Proceedings — Evidence — Sufficiency. Evidence examined and held sufficient to justify a refusal of bail to petitioner in custody upon two separate charges of murder.

      Prom District Court, Coal County; Hon. J. H. Linebaugh, Judge.

    Application of Vincent Kerriel for writ of habeas corpus to be let to bail.
    Writ denied and bail refused.

      George Trice, for petitioner.

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

Vincent Kerriel has filed in this court a petition wherein he alleges that he is illegally confined and restrained of his liberty at Coalgate by Jesse Phillips, sheriff of Coal county, and that his illegal confinement and detention consist in this, to-wit: “That petitioner was charged with murder in each of two cases before R. B. Davidson, justice of the peace in and for Coalgate district; and that a preliminary examination was held in each of said cases and petitioner was held to answer said charges to the District Court of Coal county, Oklahoma, and that thereafter upon a hearing before Hon. J. H. Linebaugh, district judge of Coal county, said judge refused to allow petitioner bail; and that petitioner is now held by virtue of the commitments issued by the justice of the peace aforesaid,” and praying that he be admitted to bail upon the ground that the proof of his guilt is not evident nor the presumptiop thereof great.

• A transcript of the testimony taken upon the preliminary examinations is annexed to and made a part of his petition; also the affidavit of petitioner and the affidavit of his wife, setting forth the facts and circumstances attending the commission of the homicides.

It appears from the evidence that the petitioner with his family resided at Cottonwood, a suburb of Coalgate; that he and his wife occasionally sold intoxicating liquors and made and sold Choctaw beer; that on the evening of Saturday the 11th day of December, 1915, E. C. Cogburn with his two brothers N. J. and A. D. went to the home of the petitioner and bought some Choctaw beer. After drinking the beer N. J. Cogburn went out to where his horse was and A. D. Cogburn with his brother L. C. Cogburn went down in the cellar to drink some more beer. As he was returning to the house the petitioner shot N. J. Cosfburn and then went to the cellar door and shot A. D. CogbiM. N. J. Cogburn was taken to Oklahoma City for medicamweatment where he died three days later. His dying declaration is as. . follows:

“Oklahoma City. Okla.
December 14, 1915. 8.30 P. M.
I, N. J. Cogburn knowing that I am mortally wounded and that I will die in a few hours wish to make this my dying statement as to how I got shot. On Saturday evening December 11, 1915 I, with my brothers A. D. and L. C. went to Vincent Kernels to get some beer. We asked Mrs. Kerriel if she had any beer and as there were some Indians in the room drunk she took us aside and said ‘we have some in the cellar’ and told us that we would have to go down there as she did not want the Indian boys to have any more beer. E. C. taken the light and A. D. followed and went into the cellar. I went out to see about my horse after we drank some beer. When I came back I asked Vincent Kerriel for another can of beer and he shot me then; when I asked him for some beer he just pulled down and shot me with a shotgun in the left side. I remember one shot after I was shot. Vincent’s boy had a gun in his hand when I came back from my horse. Vincent Kerriel had his gun too. After I was shot I ran to my horse and tried to get on him, but I could not. He was right close to me when he shot me. Neither of my brothers nor I were the least bit drunk and went quietly for a drink: Neither of my brothers nor I- had a gun or weapon of any kind, and I made no movement with my hand towards my pocket for one. I was shot entirely without warning and if I had been armed could not have time to make a move to get it.
Question by B. B. Sanders: ‘Was any proposal made or effort made by you or your brothers to insult or assault Mrs. Kerriel?
Answer: No, neither I nor either of my brothers said a single word out of the way to the woman except to ask for beer when we first went, and later when we asked for more. Neither of us took hold of or offered to take hold of her at any time. All were in a good humor until the shooting occurred and it was sudden. We bought and drank some beer and I paid for it. I paid Mrs. Vincent for it right at the time. I am almost gone but am in my right mind. • his
X
N. J. Cogburn. mark
Witnesses to this statement and subscribed thereto.
John E. DuMars,
B. B. Sanders,
L. C. Cogburn.”

The dying declaration of A. D. Cogburn is as follows:

.“Coalgate Olda.
Dec. 12-1915.
I, A- D. Cogburn, realize that I am in a bad condition and that I am more than likely to die, I want to make a statement as to how I got hurt. I am shot, Vincent Kerriel shot me with a gun. I did not see the gun, I was at his house and in his- cellar when he shot me, I had no trouble with him before he shot me. I was about the middle of the cellar and Vincent Kerriel was in front in the mouth of the cellar. My brother L. C. Cogburn was in the cellar with me; we were drinking beer; we had no trouble with him nor with any other person. I heard a racket at the front of the cellar and I looked up and saw Vincent Kernel and I saw him shoot me. It was a shot gun. I heard one shot just a little bit before I was shot. I was not drunk. We had bought some Choctaw beer from his wife Marie. I did not have any pistol nor any other weapon. Neither of my brothers had any weapon. I do not think there was any person there when I got shot except my brothers and Vincent and wife and their boy were the only persons present when I got shot. Vincent did not say a word to me before he shot me. After he shot me he run off, and I did not see him any more after that. My brother L. C. helped me out of the cellar. ’ his
X
A. D. Cogburn mark
G. T. Ralls.”

The petitioner’s supplemental affidavit, omitting ’ title and verification is as follows:

“My name is Vincent Kerriel. I am the petitioner in this case. I am the one who is charged with murder. My home is near Number 2, about a mile from Coalgate. I have lived there about eight years. My family consists of myself, my wife and four children. My oldest child is fourteen years old, and my 3roungest, four years. I was born in France. I have lived in the United States thirteen or fourteen years.
I knew the two men who were killed at my place last December. I knew one of them about four years, and the other one since last summer. They were killed at my place. They had been at my place twice before the time of the killing. One time I was at home when they were there. They were drunk each time they were there. Each time they came they insulted my wife by using dirty language and catching hold of her. She was afraid of them. I was afraid of them. I wanted them to stay away .from my place. I was convicted of selling Choctaw beer, and I wanted. everybody to stay away from my place. Frank Baker and two other men came to my place, and when I tried to make them go away, they beat me with knucks. Frank Bristow and Bud Thompson came to my place, and when I tried to make them leave, they hit me with a six shooter, and hurt me very badly. They were tried in Court, and put under bond.
On the night of the killing the two men that were killed and their brother came to my house about seven o’clock. They were drunk when they came. I was at home. When these men came Alfred Noah and his son and Albert Perkins were there. The Cogburns told them to leave.. One of the Cogburns said he was an officer, and would' arrest Alfred Noah if he did not leave. These men acted very rough. They were drunk, and had a bottle of whisky. They wanted some lunch, and they sent my boy to a store for some lunch. My wife gave them a brink of beer. They asked for more beer, and my wife would not give it to them. They talked rough to her, and took hold of her. I went into the kitchen where they were. They asked me if I had a gun. I told them no. They asked me if I had a knife. I told them no. They asked me if I wanted to fight. I told them I did not. I was afraid. My wife told me to get out of the kitchen. She said she was afraid these men would hurt mp. They spoke about Frank Bristow. One of them said he was a good man, and that I was not good. They pulled my wife’s clothing, and told her they intended „to do what they pleased with her. I was in the next room, but I was afraid to do anything. I thought these men would kill me if I tried to protect my wife. She was crying. She took her baby in her arms and ran off. These three men followed her from the kitchen. I thought that the}'- were going to do her some harm. They went out at the back door. I do not know where my wife went to. I got my shot gun. I went out the front door. I was very badly scared and excited. I aimed to protect my wife. When I started out the front door, one of these men came towards me. He put his hand behind him. I thought he was trying to ' get a gun. I shot him because I thought he would kill me if I did not. The other two men had gone down into the cellar. These men had said they were armed. I shot at them. I thought they would come out of the cellar and follow my wife and kill me. I shot to protect my home, myself and my family. I was badly excited and scared. I do not know when these men went down into the cellar, and I did not know but that my wife was down there, and they had followed her there.”

The settled rule of this court is that upon an application for bail by writ of habeas corpus after commitment for a capital offense by an examining magistrate, the burden is upon the petitioner to show facts sufficient to entitle him to bail, when these facts do not appear from the evidence adduced on the part of the prosecution, and if upon a consideration' of all the ’ evidence introduced on the application for bail the court is of the opinion that it is insufficient to create a reasonable doubt of the petitioner’s guilt of a capital offense, bail will be refused.

Ex parte Beville, 6th Okla. Cr. 145, 117 Pac. 725;

Ex parte Dykes, and cases therein collated, 6th Okla. Cr. 162, 117 Pac. 724.

Upon a consideration of all the evidence presented in support of the application in this case we are of opinion that it is insufficient to create a reasonable doubt of the petitioner’s guilt of the crime of murder in either case. It is therefore considered and adjudged that the writ be denied and bail refused.