author: DAVENPORT, J.

text:
    WAYNE SCOTT v. STATE.
    No. A-9441.
    July 14, 1939.
    (92 P. 2d 847.)

      R. D. Miller, of Hollis, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

Wayne Scott was by information charged in the district court of Harmon county with the crime of perjury, was convicted, and sentenced to serve a term of three years in the State Reformatory at Granite, from which judgment and sentence the defendant Wayne Scott has appealed.

In substance, the record discloses that Wayne Scott, the defendant, was a young man, and was a witness in the case of State of Oklahoma v. Herman Rhodes, No. 493, in the district court of said county, wherein the said Herman Rhodes was charged with rape in the second degree. The female upon whom it was alleged the rape was committed by Herman Rhodes was Opal Castleman.

Wayne Scott testified in the Herman Rhodes case, and stated that prior to the date of the alleged rape of Opal Castleman, giving the date, he had sexual intercourse with her.

The record further shows that Herman Rhodes was acquitted on the charge of rape, and was later on acquitted on a charge of perjury, growing out of the trial in the rape case.

Opal Castleman, testifying on behalf of the state, in substance stated:

“I live in Harmon county, Oklahoma; have lived there all my life. I am 18 years of age. I was the prosecutrix, and a witness in the case against Herman Rhodes for statutory rape committed on myself. That case was tried on December 7, 1936. I was present when the evidence for the defendant was introduced, and I heard the testimony of Wayne Scott. By Mr. Madden: Q. You heard his statement that he had intercourse with you, wherein he stated that he had intercourse with you at the Slab? A. Yes. Q. You may state to the jury whether that was true or not. A. It was not true.”

Opal Castleman continued:

“I did not have intercourse with him at the Slab at all. We were attending an Arnett School party. I do not remember the class, but it was one of the high school classes. Roughly guessing, there were at least a hundred people attending this party. Wayne Scott, myself, and others went to the party in the same car. With us in the party were Jo Tyler, Joe Courtney, Gladys Scott, Wayne Scott, and myself. Joe Courtney is a boy, and Jo Tyler is a girl. Gladys Scott is Wayne Scott’s sister. When we got to the grounds, we went to the Slab. When we got to the Slab, I saw Orene Caswell, one of my girl friends, who is a married woman now. Her name at that time was Orene Orr. She is a sister of my sister’s husband. I have known her about all of my life. Some of the teachers attended this party. Mildred Scott was the only one that I knew. I was at home sometime in the latter part of the year, November or October, when Wayne Scott came to my house with three girls, Ruby Tyson, Bernice Wilkerson, and Laverta Wilkerson.”
“The purpose of their coming to my house, Wayne came to marry me; but he said he had not had intercourse with me in his life, but he would marry me and stop the trouble. Homer Alexander asked him why he had done that. My mother, sister, and brother, and Homer Alexander were present. Homer Alexander is my brother-in-law. Homer Alexander asked Wayne why he came there, and Wayne answered there were two big shots that came there and told him that if he did not come over and offer to marry me, they would send him to the penitentiary. He didn’t name the big shots. I told him at the time I knew he did not have intercourse with me.”

On cross-examination the witness stated that she had a baby born the 31st of October, 1936.

“I have the baby here. The baby has blue eyes. By Mr. Miller: Q. Opal, you have changed your story several times, haven’t you, about when this offense occurred, haven’t you? A. I don’t reckon I have. Q. In the first preliminary information you filed before Mr. Kerr, didn’t you allege that the rape occurred on the first day of February, 1936 ?”

An objection was interposed to the question by the state, and overruled.

Opal Castleman, continuing, stated:

“I don’t know whether or not I went to the county attorney’s office on the 21st day of October last year, and filed a preliminary information, and stated in that information that I was raped on the first day of February, 1936.”

The defense offered to introduce the preliminary hearing record, which was objected to by the state, and the objection sustained.

“By Mr. Miller: Q. You did come back a few days later, on the 24th of October, three days after the 21st, and file in this court an amended information, didn’t you, Opal? A. I guess I did. Q. And when you filed the amended information you changed the date from the first day of February, 1936, to the 11th day of February, 1935, or more than a year before that? Is that right?”

An objection was interposed by the state, and overruled. The witness answered, “Yes.”

“Q. You didn’t report your condition to your mother, to your folks, Opal, until just before the child was born? A. No, sir. Q. It was not your intention to report being pregnant — report the outrage you complain of, unless you became pregnant, is that right? A. I guess I would have, sometime. Q. You testified here in this preliminary hearing, didn’t you? A. Yes. Q. At the preliminary hearing I asked you this question, ‘If you never had become pregnant, you would never have told any one, or prosecuted any one. Was that your intention?’ And you answered, ‘Yes, sir.’ You gave that information? That’s right? A. Yes, sir. Q. You testified that this alleged offense that occurred with Mr. Rhodes, you were on a trip home from Arnett and Hollis, didn’t you? A. Ask the question again.”

The reporter read the question to the witness, and the witness answered, “Yes, sir.”

“Q. You testified there were other girls in the car with you on that trip- home, wasn’t that your testimony? A. Yes, sir. Q. You told also how you were dressed for the game that night, didn’t you? A. Yes, sir. Q. What did you say is the kind of a dress you wore? A. Print dress. Q. Do you remember me asking this question on preliminary, ‘Now on that first trip home, how many girls were there in the car when you went home from Arnett?’ And you answered, ‘Winona Kizer, Ruby Tyson, Bernice Wilkerson, Laverta Wilkerson.’ Did you give that answer? _A. Yes, sir. Q. I will ask you if you remember this question, ‘Did you first tell your folks it was on or about the first day of February, 1936?’ A. Yes, sir, I think so. I guess if it is in there, I said it. Q. Do you remember along in the spring of 1936 before school was out being up there in the schoolhouse in the book room with Wayne Scott? A. No, sir, I was not up there with him. Q. Do you remember about the first day of February, 1936, Mr. Rhodes entertained down there at the schoolhouse for the team, some of the parents were there, and you and Wayne Scott were there together that night? A. No, we were not. Q. Were you there? A. Yes, sir. Q. Was Wayne Scott there that night? A. I don’t know whether he was or not. Q. Isn’t it a fact that you and Wayne Scott cut the crowd there that night and went out in the garage in the dark away from where the kids were playing, and stayed out there for an hour or so in the dark? A. No, I didn’t. Q. You were not with Wayne there that night, is that right? A. Yes, sir. Q. Do you remember along in January, 1936, being over at Lloyd Ratliff’s to a charivari, and being in a car with Wayne Scott when Arzie Gamble and Ruby Tyson were in the car?”

This was objected to by the state, and the objection overruled.

“A. I was there, but I wasn’t with Wayne. Q. You weren’t in the car with Wayne, is that right? A. No, I wasn’t Q. You never had any intercourse with Wayne Scott, at all? A. No. Q. Is that right? A. No, sir. Yes, sir, that’s right. Q. You did have a child, didn’t you? A. Yes, sir. Q. That child, you say, was born on the 31st day of October. A. Yes, sir. Q. About eleven months from the first day of February, the time the party was held down there at the schoolhouse, wasn’t it? The 31st of October? I mean nine months from the first of February to the 31st of October? Is that right? A. Yes, sir.”

The baby of the witness, Opal Castleman, was brought into court, and the following questions asked:

“Q. What color of eyes does the baby have? A. Blue. Q. What color of hair does the child have? A. Well, I don’t know. Q. Sandy hair, isn’t it? By Mr. Madden: The jury can see for itself.”

The state called Mrs. Or ene Caswell, who stated that she lived north of Hollis, Okla. Prior to her marriage she was Orene Orr. The witness further stated:

“I was there at the Slab, and saw Opal Castleman there that night. I also saw Wayne Scott. I was with Durard Parker. I was with Opal all the time she was at the Slab entertainment. Wayne Scott was not with her all the time. She did not leave my presence while the entertainment was going on. I got there about 6:30 and left about 11:00. For entertainment we played games, and then we served lunch. Wayne Scott did not have an opportunity to commit an act of immoral relations with Opal Castleman at that time. There was no attempt to do anything of that kind while I was present.”

On cross-examination the witness stated that she was related to Varner Orr.

“I don’t know why it is, that they did not have me down here to testify at the Rhodes trial. My brother talked to me about the case. I got my subpoena to come to court this morning. I have known what I am stating all the time; but they just now called on me. The family knew all the time what I knew. I talked to my brother yesterday.”

The witness admitted that she had not been called as a witness in the trial of the Rhodes case, and that this was the first time that she had ever been called as a witness. She stated that she sat right with Opal Castleman through the entertainment of playing games, and all, and when the lunch was served, and that Opal could not have been away.

A number of other witnesses, relatives of Opal Castle-man and intimate friends, testified that they were present when Wayne Scott was asked the question as to whether or not he had had intercourse with Opal Castleman. They claim that he stated that he had not.

The record shows that Wayne Scott accompanied by several young ladies went to the home of Opal Castleman after he had learnled that she was pregnant, and proposed marrying her; that the parents and Opal did not consent to the marriage; but while they were there at the home of Opal, the brother-in-law and family of Opal invited Wayne Scott from the room where his friends were into another room where there were only present the relatives of Opal. Several testified that Wayne told them that he had not had sexual intercourse with Opal.

The foregoing is in substance all the testimony, except that the testimony on behalf of the state shows that every time Wayne Scott was under oath, testifying in any of the trials where Herman Rhodes was on trial and in this case, he stated positively that prior to the time of the alleged rape by Herman Rhodes of Opal Castleman, that at the Slab he had had intercourse with her.

Bernice Wilkerson, testifying for the defendant, stated:

“I live out in the O. M. Community. During the school period I was on the ball team in 1936. Opal Castleman, also, was on the team. I remember the Rhodes entertaining down at the teacherage for the school and parents of the community. I saw Opal Castleman there that night. And, also, Wayne Scott.”

The objection to the question as to whether or not the witness saw Opal Castleman and Wayne Scott leave the room that night was sustained, and the defendant made the following statement:

“Comes now the defense and offers to show by the witness on the stand that she was present at a school party the first day of February, 1936, and that Opal Castleman, the prosecuting witness, and Wayne Scott were at the school party. By The Court: Perhaps you had better not make that statement to the jury. By Mr. Miller: I sure want to make a record. By the Court: You have a right to make your record. By Mr. Pullen: We would like to have the jury withdrawn.”

Mr. Miller then renewed his offer to show that at that school meeting Opal Castleman and Wayne Scott left the party, and went into the garage, which was dark and unlighted, and stayed alone with the said Wayne Scott for a period of some two hours, and approximately nine months from the said date a child was born to the said Opal Castle-man.

The state objected, and the objection was sustained. Defendant excepted.

“By Mr. Miller: I would like to say the same testimony would be offered by Ruth Henry. By the Court: I sustain that on the ground you can’t cross-examine a witness on an immaterial point and use it as a basis for impeaching the witness. If it were in 1934, you can, or prior to 1935.”

Gladys Scott stated:

“I am the sister of Wayne Scott. I was one of the party that went to the Slab in September, 1934. I went with Wayne Scott, Jo and Elsie Tyler, Joe Courtney, and Yarnie McDaniel. Orene Orr was not one of our party that night. At the party some skated, and some played games, just had a good time generally. Wayne and Opal were both there. They were at the party a little while, and then I did not see them any more. They disappeared. I noticed they were gone. They went back to the car.”

On cross-examination:

“I saw them leave the party when they went out, and go to the car. The car was about 50 yards from the school building. I do not know how many feet that would be. It was a general school party. They were playing Drop the Handkerchief, Ring Around the Rosy, and skating. I don’t know how many of the teachers were there. The party broke up about 11:30 or 12:00. There were seven of us in the car. I saw my brother and Opal leave the party and go to the car.”

Wayne Scott, the defendant, testifying in his own behalf, stated:

“I live up in the O. M. Community, Harmon county. My father is J. C. Scott. He is a farmer in that community. I help work on the farm and go to school. I have lived in that community almost all of my life. I know Opal Castle-man. I have known her practically all of my life. We used to go to the same school, but do not now. I have had dates with Opal, and have been out with her quite frequently at different places. I went out to the Slab in the fall of 1934 with Opal. I was subpoenaed down here last fall as a witness for the state in the preliminary hearing for Herman Rhodes, and was used by the state as a witness. The state asked me if I had had intercourse with Opal Castleman, and I told him that I had. I stated that the first time I had intercourse with her was at the Slab in September, 1934. No one asked me to give such an answer. They asked me for the truth and that is what I gave them.”

The witness was asked if he had had intercourse with Opal Castleman since that time and he answered, “Yes, sir.”

An objection was made on the ground that it was incompetent, irrelevant, and immaterial, unless the time was fixed prior to February 11th, 1935.

The objection was sustained by the court, and the jury admonished not to consider the answer.

Wayne Scott continued:

“In the year 1936, I learned Opal was pregnant. I left in July, 1936, and went to California. I was gone two months. I came back from California before the information was filed against Herman Rhodes on October 21st, 1936. I had been back a short while before the information was filed. I went down to the Castleman’s home with some young ladies in the community to talk to the Castlemans about Opal. Ruby Tyson, Laverta Wilkerson, and Bernice Wilkerson went with me. My purpose in going down there was to tell them that I thought I was guilty, and that I had come back to take the responsibility and that I was willing to marry Opal and settle this thing, if they were willing. They said they were not willing; they had the guilty person now. They did not consent to me marrying Opal. When I made that statement, they asked me to come into another room, away from the parties who had come down there with me. In talking privately with me, they said they had got into this trouble, and they were going through with it, and that they did not want me mixed up in it, and if I would leave and not be connected with it in any way, it would be better. I told them that I wanted to do the right thing. Opal and I went to the Slab in the same car as Jo and Elsie Tyler, Joe Courtney, and Varnie McDaniel, and my sister Gladys. I don’t know just how many were out at the Slab that night, but there were between twenty-five and thirty-five. It was a class party of the school. I took Opal along as my guest that night. We all got out of the car and went up to the Slab. But we didn’t stay long. Opal and I went back out to the car. Some of them were skating, and some were playing games of different kinds, and some of them were preparing the lunch we were to eat later in the evening. They were scattered everywhere. Opal and I went out to the car. We were out there practically the rest of the party. I had intercourse with Opal while we were out there.”

On cross-examination the defendant stated:

“I never talked to the county attorney prior to the time I was subpoenaed at the preliminary hearing of the Rhodes case. He didn’t know what my testimony would amount to. I had never talked to him. The first time that any one ever knew that I had had intercourse with Opal was when I took the witness stand in the Rhodes case. When I left the party Opal went with me to the car. I heard my sister’s statement that the car was about 50 yards from the Slab. That is something like the distance, I don’t know. We were driving a tudor Model A. Ford. We raised up the seat and got in the back. Yes, sir, in that car at the Slab which was about 50 yards away, I had sexual intercourse with Opal Castleman. If any one came around the car, I didn’t know it. I don’t know just what time we went to the car, but it was probably an hour or so after we got to the Slab. We stayed practically all of the time until the party broke up. The party broke up sometime between 11:00 and 12:00. I didn’t have a watch. I met Mr. Orr and Mr. Alexander up at the bank, and had a conversation with them. They did not ask me on that occasion if I had had sexual intercourse with Opal. They told me they did not want me mixed up in this trouble, no way, and told me to stay out of it; and that I was a good boy and all that, and they went on, and Varnie said he had the guilty person, and didn’t want nobody else. I never said anything and never made any statement whatever. I went out to the Castleman home, and talked with the family. I talked with Opal, to Mrs. Castleman, Opal’s mother; talked to her brother-in-law, her sister, and her uncle. I told them before we left that room that I had come over to marry Opal, and stop all this trouble. I was ready to settle all the controversy, and came back from California on purpose to do that. I didn’t tell them in substance or in words that I had never had sexual intercourse with Opal, but that I would marry her in order to settle the trouble and protect Rhodes. I told them I felt that I was the guilty party, and I wanted to take the consequences, and would marry her, and stop all the trouble. They said, ‘We think we have the guilty person, and that’s all we want. We don’t want to cause anybody else any harm, and we are going on through with it just like it is.’ I said, ‘All right.’ Mr. Orr’s testimony about there being some small children in the room is. correct. Mr. Alexander was not there. Homer said, T guess we had better go in the other room. Let’s go in the other room and talk this over.’ I followed them in there. When we got in there, I made the same statement that I had made to them prior to that time. Neither of the young ladies that had come with me to the Castleman home went into the room with us. I did not feel there would be any such statements as made by the witnesses, or I would have taken them with me. They repeated in substance the statement as to the guilty party that they had made to me before we went into this private room. No violence was offered to me at any time by either of the parties. They threatened me — one man did — the day after the court was over here, when they tried Herman, right down here in this courthouse. I was called outside, but I did not go out. No, the family hasn’t been ganging me in great gangs. Yes, sir, I saw the baby this morning. My eyes are brown. I never noticed the baby’s eyes. The baby had red hair. I did not make any statement to the family that I had been sent out by a couple of big shots that told me to marry Opal, and if I didn’t I would be put in the penitentiary. No, sir, I did not make such a statement. A lot of the other testimony they stated was not true. Yes, sir, I went out to the Castle-man home as I have stated, and proposed to marry Opal. I was invited by the family, on account of the little children, to go into a private room. I didn’t know what their purpose was for doing it. That’s what they done. I didn’t tell them that a couple of big shots had sent me out there, and if I didn’t marry Opal, I would be sent to the penitentiary. That didn’t happen. Yes, sir, I testified in the preliminary hearing in this county, at Hollis, the latter part of the year, 1986, and on December 7, 1936, in the district court here, that prior to February 1, 1935, I had had intercourse with Opal. In my testimony I made that statement, and the incident I related of the occurrence out at the Slab, and I still say that the testimony I gave on that day and date is the truth; and as a matter of fact, I did in September, 1934, have sexual intercourse with Opal Castle-man in a Model A Ford out there within 50 feet of the school.
“By Mr. Pullen: Q. And you still say, as a matter of fact, you still look this jury in the eye and say that that testimony you gave on that day and date is the truth, and as a matter of fact you did, in September, 1934, have sexual intercourse with Opal Castleman in a Model A Ford, out there in 50 feet of the school party? You say now to the jury you did do those things, and your testimony in December, 1936, is true and correct, and still say that’s correct now? A. Yes, sir, I do.”

Bernice Wilkerson, testifying for the defendant, testified :

“I was with Wayne Scott the night he went down to the Castlemans’. When we got to the house, they asked us in, and we sat there and talked awhile. We waited until they all got in the room. Wayne said, ‘Mrs. Castleman, I have come up here on a proposition to settle all this. I will marry Opal, and settle all the trouble, and have all the responsibility on myself. All the school girls know I have had things to do with Opal.’ When Wayne said that, they asked the older folks in the other room. They did not give any reason for going in the other room. I was not asked to go in the other room with them. Besides Wayne and myself, Laverta Wilkerson and Ruby Tyson were with no "

On cross-examination the witness stated that she would have gone in the room with the parties if they had asked her to go. There were some small children .in the room.

“I am 16 years of age now. I was 15 at that time. The other girls were 15. I testified in the case and made the same statement of facts that I am testifying to now. Wayne told them that he would marry Opal and get rid of all the trouble, and as stated before, that all the school girls knew he had had affairs with Opal. Yes, sir, I knew of Wayne and Opal having had affairs or relations. I saw them go in the car shed one night. It was after February 11, 1935. I have been friends, neighbors, and associated with Opal Castleman and her family before this matter came up. I have not visited her since. Nor have I visited Wayne Scott since. I have spoken to Wayne. Opal has never spoken to me, and I have never spoken to her. No, I wasn’t out at the Slab that night.”

On redirect examination, the witness stated she just heard the school girls talk about Wayne taking Opal Castle-man out to the Slab that night.

“At the time this transaction transpired, the Scott family, Castleman family, and my family were all good friends.”

Laverta Wilkerson stated that she went to school in the O. M. Community, and that she was there the day Wayne Scott and Opal Castleman had a date to go to the Slab.

“Opal told me the day she left the school, she was going to the Slab with Wayne that night. I went with Wayne, Bernice, and Ruby Tyson down to the Castleman home last fall sometime. The families were all neighbors and friends. We were invited into the Castleman home. Wayne said to Mrs. Castleman, ‘We have come up here to make a proposition with you. I will settle things all myself. I am to blame, you know. All the school girls know I have been with her, and I will settle this right now if you will do a little reasoning with me. I will take it on myself.’ The parties then left the room at the suggestion of Homer Alexander. Alex7 ander said, ‘Let’s us old folks go in the other room.’ The reason, I suppose, they went together into the other room was that they did not want us to hear what they said. We were not asked to go into the other room with them.”

On cross-examination the witness stated:

“They didn’t tell us to stay out. I went up there with Wayne, Ruby Tyson, and Bernice Wilkerson. Herman Rhodes did not ride up there with us. He came and got us girls, but did not go up to the Castleman home. Herman Rhodes did not tell me about trying to get Wayne Scott to marry the girl. Wayne is the one who asked us to go up there. I don’t know whose car it was. We drove Herman to his father’s, and let him out there. The girls in basketball wore overalls. They never did wear print dresses. I didn’t hear Wayne say anything about big shots sending him out to the Castleman home or what they would do for him if he did not do certain things. I know Wayne went to California before we went with him over to the Castleman home. He hadn’t been back but a short time prior to the time we went with him.
“By Mr. Miller: It is stipulated and agreed that Ruby Tyson, who went with Laverta and Bernice Wilkerson to the Castleman home and who is now out of the state, would, if present, testify to the same state of facts as were offered by Bernice and Laverta Wilkerson. By Mr. Pullen: That’s all right.”

The foregoing is the substance of the testimony introduced in the trial of Wayne Scott in this case.

Ten errors have been assigned by the defendant, alleged to be sufficient to warrant this court in reversing this case.

The first, seventh, and eighth assignments will be considered together as the first assignment relates to the action of the court in overruling the defendant’s motion for a new trial, and the other two assignments relate to error of the court in refusing to enter a directed verdict of not guilty, for the reason the verdict of the jury was not sustained by competent evidence to prove the defendant guilty of the offense charged; and error of the court in refusing to sustain a demurrer to the plaintiff’s evidence.

As shown by the evidence, this case seems to be one of spite or persecution, for the reason that the. relatives of Opal Castleman, who unfortunately had become pregnant by someone, seem to have desired to place the guilt upon a man by the name of Herman Rhodes.

It is always sad to know any young lady yielding her virtue to a man; and sadder still is it, when she becomes pregnant and brings an illegitimate child into the world.

The crime this defendant is charged with, if guilty, is one condemnéd by all honest, law abiding citizens. You can guard against those who break into your home or your place of business; but the tongue of the perjurer cannot be stilled by guarding or by attempting to restrain the perjurer from talking.

Yet, a man charged with perjury is entitled to a fair and impartial trial according to the law and evidence. It matters not how strong the feeling against one charged with perjury may be; that does not deprive him of his constitutional and statutory rights under the law.

It is disclosed by the record in this case that Miss Opal Castleman’s family, the Scott family, and the Wilkerson family were all friendly; and the children had visited back and forth and gone to the same school part of the time. Some time after the alleged pregnancy of Opal Castleman, the defendant in this case left the state and went to California. He came back within two months to his home in the neighborhood of where the Castlemans lived. Shortly after his return, a warrant was sworn out for a man by the name of Herman Rhodes, charging him with rape in the second degree. Miss Castleman was then between the age of 16 and 18 years.

A preliminary hearing was held, and the proof was that the defendant in this case was subpoenaed as a witness for the state. In the examination in the preliminary trial, the defendant stated that one night while attending a school meeting at what was know as the Slab, the defendant and a number of young ladies, including Miss Castle-man, attended this school meeting; and that he and Opal Castleman went back out into the car in which they had driven to the Slab, it being a tudor car, and got into the back seat of this car. While there that evening, he had sexual intercourse with Miss Opal Castleman, the party alleged to have been raped by Herman Rhodes later.

Rhodes was bound over and tried in the district court. In the district court the defendant in this case was not subpoenaed by the state, but by the defendant Rhodes. He again testified to the fact that he had sexual intercourse with Miss Castleman at the Slab, reiterating in substance the same statement that he had made in the preliminary trial.

The record discloses that Rhodes was acquitted.

The record, also, shows that every time the defendant was called to testify under oath he stated positively, giving the place and date where he first had sexual intercourse with Miss Castleman. Miss Castleman, who was the prose-cutrix in the case of State of Oklahoma v. Herman Rhodes, charged with rape in the second degree, denied that the defendant in this case had ever at any time had sexual intercourse with her prior to or subsequent to the alleged date Herman Rhodes was charged with having sexual intercourse with her.

The defendant was prosecuted under section 2406, O. S. 1931, 21 Okla. St. Ann. § 491:

“Every person who having taken an oath that [he] will testify, declare, depose or certify truly before any competent tribunal, officer, or person, in any of the cases in which such an oath may by law be administered, willfully and contrary to such oath, states any material matter which he knows to be false, is guilty of perjury.”

The defendant does not dispute the fact that he testified that he had had sexual intercourse with Opal Castle-man prior to the alleged date that Herman Rhodes was accused of having committed second degree rape upon her. There is no dispute that the prosecutrix gave birth to a child. Nor is it disputed that Wayne Scott was a friend of Miss Castleman, and had attended school with her, and was with her at the Slab on the night he says that he had intercourse with her in the car they drove to the Slab in, which car was parked near the school where the entertainment was being given.

The only question for this court to decide is, Is the proof in this case sufficient to sustain a conviction of perjury against the defendant?

When he testified to the intercourse he had with the prosecutrix, he gave the date, and place as being in the car near the Slab where the school entertainment was being held.

In Pilgrim v. State, 3 Okla. Cr. 49, 104 P. 383, this court fully discussed what proof was necessary to establish the crime of perjury. In the fifth paragraph of the syllabus, the court stated: “Perjury consists in swearing willfully and corruptly, contrary to the belief of the witness, not in swearing rashly and inconsiderately according to his belief.”

In the sixth paragraph of the syllabus in Pilgrim v. State, supra, the court stated:

“Corrupt motive is indispensable to perjury; and one having knowledge respecting the fact, who testified, however positively, only what he believes to be true, can be guilty of no crime, although he was ‘mistaken.’ ”

To consist of perjury the statement made must be not only false, but the party making it must know it to be so. Pilgrim v. State, supra; Cutler v. Territory, 8 Okla. 101, 56 P. 861; Nelson v. State, 32 Ark. 192.

In Shoemaker v. State, 29 Okla, Cr. 184, 185, 233 P. 489, this court in the second paragraph of the syllabus stated:

“A conviction for perjury cannot be had upon proof alone that accused made contradictory statements under oath. The state must prove by extrinsic evidence that the statement upon which the prosecution is founded is false.”

In the third paragraph of the syllabus, in Shoemaker v. State, supra, the court stated:

“Where perjury is based on contradictory statements, under oath, the falsity of one of such statements as a basis for perjury cannot be proven by the unsworn statements of the accused.”

This court has repeatedly held that no person can be lawfully convicted of perjury on the unsupported testimony of one witness; and has held further that the charge should be supported by at least two witnesses, or by one witness and corroborating circumstances. This rule, in different forms, has been followed by courts generally, and is stated in 21 R.C.L. 272:

“That the contradictory evidence of one witness alone is never sufficient, as it merely establishes an equilibrium, and therefore additional weight is nécessary to turn the proof against the defendant. The corroboration of a single witness for the prosecution must be by proof of independent and material facts and circumstances tending directly to corroborate the testimony of the witness, and must be of a strong character, and not merely corroborative in slight particulars, and it must contradict in positive terms the statement of the accused.” Shoemaker v. State, 29 Okla. Cr. 184, 233 P. 489.

In Blakemore v. State, 39 Okla. Cr. 355, 265 P. 152, this court in the second paragraph of the syllabus stated:

“A conviction for perjury cannot be had upon proof alone that accused made contradictory statements under oath. The state must prove by extrinsic evidence that the statement upon which the prosecution is founded is false.”

The proof in this case conclusively shows that the defendant on different occasions testified to the fact that he had had at a certain time, and prior to the alleged rape by Herman Rhodes, sexual intercourse with the prosecuting witness, Opal Castleman. The prosecutrix denied the statements of the defendant, and said that he had never had sexual intercourse with her.

The testimony of the defendant and prosecutrix amounts to an equilibrium of the testimony. He asserts that he did have intercourse with the prosecuting witness, and the prosecuting witness asserts that he did not.

The state, in order to bolster up the prosecuting witness, tried to show by a witness who was at the Slab that night of the alleged intercourse by the defendant with the prosecuting witness, that she had been with the prosecuting witness and stayed with her all of the way through the school program, and that the prosecuting witness did not leave her at any time.

This statement is contradicted by the sister of the defendant, in which she says that her brother and the prosecuting witness were absent from the school building for sometime, and went out towards the car.

The only other testimony attempted to be shown by the state is by statements of the relatives of the prosecutrix, in which they claim that when the defendant went down to her home and offered to marry her, after he had learned that she was pregnant, when they had taken the defendant in a room separate from the parties that had come to the Castleman home with him, he stated that he had not had intercourse with Opal; and that at another time, when he was up near the bank building, in conversation with some of the prosecutrix’s relatives, he again stated to them that he had not had sexual intercourse with her.

The defendant denied that he made these statements. It is not contended by the state that the defendant was under oath at that time; nor is it shown that, at the time these relatives of the prosecutrix claim they talked to the defendant, he was under any moral obligation to disclose to them any private relationship, amounting to cohabitation and sexual intercourse with the prosecutrix.

These statements are not claimed to have been made by the defendant while under oath; and they are not such statements as are sufficient to corroborate the prosecuting witness in her statement that she had not cohabited or had sexual intercourse with the defendant, and are not sufficient to sustain a charge of perjury.

The testimony against the defendant, other than the testimony of the prosecutrix, is testimony of an indefinite and uncertain character, and seems to have been attempted to have been built up by the relatives of the prosecutrix, because of the fact that they were angered at the defendant for the testimony he gave in the trial of State v. Herman Rhodes, who was acquitted of the charge of rape in the second degree on the person of Opal Castleman.

As they do not deny that the defendant proposed to marry the prosecutrix, and that he stated to them he was to blame for her being pregnant; nor did they deny the fact that they told the defendant that they had the right party, and for him to stay out and keep out of it, and it would be better for him to leave the country, clearly showing that they were trying to bind the defendant and convict him on alleged, uncertain, and indefinite statements, alleged to have been made by the defendant. All of which he denied.

In Cude v. State, 42 Okla. Cr. 357, 276 P. 240, in the second paragraph of the syllabus, the court stated:

“Where the evidence in a case to sustain a verdict of guilty is of such a weak and uncertain character that the court cannot say that the jury was not influenced by prejudice, passion, or irrelevant and incompetent testimony, a great deal of such testimony appearing in the record, this court will order a new trial.”

In Jefferson v. State, 31 Okla. Cr. 44, 236 P. 914, in the body of the opinion the court stated:

“The salutary rule, as has frequently been announced by this court, is that the jury are the exclusive judges of the credibility of the witnesses, and where there is evidence from which the jury may reasonably and logically draw the conclusion of the defendant’s guilt, although the evidence is conflicting, the verdict will not be disturbed. Still, where there is a dearth of evidence and the guilt of an accused is not a logical deduction from the facts proven, the evidence is insufficient and the verdict will be set aside.” Thompson v. State, 40 Okla. Cr. 251, 268 P. 314.

Without prolonging this opinion further, it is apparent that the evidence introduced against the defendant is not sufficient to sustain a verdict of guilty on a charge of perjury.

We, therefore, hold that the motion for an instructed verdict and his demurrer to the evidence was well taken, and should have been sustained. The verdict is not supported by the evidence, and on account of the insufficiency of the evidence, the case is reversed and remanded.

DOYLE, P. J., and BAREFOOT, J., concur.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    EPHRIAM JAMES v. STATE.
    No. A-9484.
    July 21, 1939.
    (92 P. 2d 973.)
    Falkenberg & Ernest, of Medford, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Ellis W. Eddy, Co. Atty., of Medford, for the State.
   BAREFOOT, J.

The defendant was charged in the district court of Grant county with the crime of burglary; was tried, convicted of burglary in the second degree, and sentenced to serve two years in the penitentiary, and has appealed.

The first error presented is, that the evidence is insufficient to sustain the judgment and sentence, and that the court erred in failing to instruct the jury to return a verdict of not guilty.

It is unnecessary to give a detailed statement of the evidence in this case. Briefly, it may be stated that Charlie Stevenson was farming in Grant county. On the night of May 7, 1937, his garage was broken into and burglarized of the following property: One storage battery; one electric generator; two gallons of lubricating oil; one box of carpenter tools; one switch; one automobile jack; seven gallons of gasoline; one. set of socket wrenches, and one automobile blanket, all of the value of $75.

A great deal of this property was, a few days thereafter, recovered in the city of Enid, Garfield county, by the police officers of that city. A large part of it, consisting of the carpenter tools, was recovered from a pawnbroker, to whom defendant had pawned the same a few days prior thereto. Other parts of the property, among it being the generator and the tool box, and other parts, were found in the home of defendant’s mother, where he was arrested, and the defendant at that time was wearing a jacket which was identified as the property of the prosecuting witness, and was taken at the time of the burglary of his premises. The property was positively identified by the prosecuting witness. Much of it by peculiar marks and brands which were easy to identify. One of the saws had the initials “J. W. M.” thereon, this saw having been bought by Mr. Stevenson from his father-in-law, whose name was “John Wesley Mounts.” The jacket was identified by certain alterations and stitches that had been made by the prosecuting witness, Charlie Stevenson.

The evidence with reference to the actual burglary of the garage was based upon circumstantial evidence, as is generally true in cases of this character. It is not often that anyone is actually present when burglaries or thefts are committed in the nighttime.

The prosecuting witness, on learning of the burglary next morning, informed the officers of Grant county. They came to his residence, and upon investigation found the garage had been broken into. They found two sets of tracks which led from the garage to the highway, and then found where a car had been parked near the highway, and into which the property above described had been loaded. It had rained and it was easy to determine the tracks of the parties and also the tracks of the car. The tracks were followed to the paved road leading toward Enid.

When defendant was arrested his shoes were examined and they had certain peculiarities which were shown in the tracks at the garage and to and from the car. The automobile tires taken from the car of the codefendant, and who was a brother-in-law of defendant, and who was living at the home of the mother of defendant, were examined and found to compare favorably with the track of the car which had been parked near the pavement on the night of the burglary. Other circumstances which it is unnecessary to relate were shown.

The defendant testified that he had been convicted of larceny in the state of Idaho prior to his coming to Oklahoma. Other stolen property which was identified by the owners was found in defendant’s possession at the time of the search by the officers.

The jury has the right, and it is its duty to pass upon the facts, and their verdict will not be set aside on appeal, where the evidence is conflicting, and the evidence offered by the state is sufficient to sustain the verdict. This proof may be by circumstantial evidence as well as by direct and positive testimony. Cooper v. State, 53 Okla. Cr. 380, 12 P. 2d 703; Trimmer v. State, 32 Okla. Cr. 161, 240 P. 129; Holloway v. State, 37 Okla. Cr. 24, 255 P. 1022.

The finding of recently stolen property in the possession of a defendant is a circumstance to be taken into consideration by the jury, together with the other facts and circumstances in the case. Bradley v. State, 18 Okla. Cr. 503, 196 P. 730.

We have carefully examined the record and find that the evidence was sufficient to warrant the jury in returning a verdict of guilty against the defendant, and that the same should be upheld.

The objection of counsel for defendant that: “Mr. Roberts: The defendant excepts to the fact that the county attorney was over there in a private conversation with the jury, and the defendant and his counsel were not able to hear the conversation,” cannot be sustained. The county attorney handed an exhibit which had been introduced in evidence to one of the jurors, in open court, with the statement: “Now, Gentlemen of the Jury, while we are waiting for the witnesses, you may examine these exhibits.” The court immediately said to the jury: “The Court: The jury will disregard any statement that the county attorney made with reference to this exhibit.” We do not think there was any error of which the defendant can complain or which was prejudicial to his substantial rights.

We are of the opinion that the defendant had a fair and impartial trial, and that the judgment of the district court of Grant county should be affirmed, and it is so ordered.

DOYLE, P. J., and DAVENPORT, J., concur.


author: DOYLE, P. J.

text:
    LESLIE E. BLADES v. STATE.
    No. A-9567.
    July 21, 1939.
    (92 P. 2d 970.)
    Wilson & Wilson and David Tant, all of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Leslie E. Blades, was informed against for burglary in the second degree. It was charged that he burglariously broke into and entered a one-story brick building, No. 1637 W. Main street, Oklahoma City, in the possession of the Kraft Associated Distributing Company, in which building valuable personal property was then and there kept and deposited, with the felonious intent to steal and carry away the same.

It was further charged that the defendant did take, steal and carry away $125 in negotiable checks, and $144 in good and lawful money of the United States, the personal property of the said Kraft Associated Distributing Company.

The trial resulted in a verdict of guilty as charged in the information, and fixing his punishment at confinement in the state penitentiary for two years.

From the judgment rendered in conformity with the verdict, an appeal was perfected by filing in this court on September 27, 1938, a petition in error with case-made.

The errors assigned question the sufficiency of the evidence to sustain the verdict.

The uncontradicted evidence is to the effect that on the night of December 21, 1937, the place described was broken into. The next morning it was found that $144 in money and a number of checks that had been given to the company, and some of them that had been endorsed by other concerns, were missing. It was reported to the police department, and among those checks there was one in particular that had been endorsed to the Kraft Company. They notified the maker, and when that check came to the bank the payment was stopped. It developed that this check was left at a filling station by the defendant with a note to the man in charge to deposit it through his account and he would be back to get the money, the defendant saying that he had won this check in a poker game.

Dick McCormick testified that on December 21st, last year, he was a student at O. C. U., and worked at a service station, No. 4300 North Western, for Allen Adair; that Mr. Blades came into the station in midmorning and left a written message attached to this check, requesting Mr. Adair to send this check through on his account, saying that he had taken this check in a poker game and that was his reason for thinking the check was not good; that he noticed that the defendant had one $100 bill, one $20 bill, and one $5 bill, and other bills in his hand; that the defendant said he had won in the neighborhood of $300 that night in a poker game; that he had known the defendant for at least one year prior to that time.

C. W. Kemp, lieutenant of the stolen goods division of the police department, testified that defendant was arrested December 28th; that he talked to him several times about the alleged burglary of the Kraft Store on West Main street; that the defendant stated that he got this check, State’s Exhibit “1”, in a poker game and left it at the filling station to be cashed, but he could not remember whom he played poker with; that he further stated that he had burglarized this place by entering through the transom and cutting a hole through the Avail to the Oklahoma Machine Company and got the tools; that with a hammer he broke the combination and opened the safe and got this check, but did not get the full amount of the money reported taken.

When the state rested, the defendant interposed a demurrer to the evidence and moved the court to instruct the jury to return a verdict of not guilty. Which demurrer and motion were properly overruled.

As a witness in his own behalf, the defendant denied his guilt; that the first he learned about the burglary was from the officers. He explained his possession of the check by the statement that he had won it in a poker game; that the next day, while on his way to Enid to spend Christmas, he left it at Allen Adair’s Service Station to be cashed; that he had worked for the Kraft Company for approximately three months; that he judged that he won more than $100 in the poker game that night; and the filling station boy saw a part of the money, a $100 bill, a five and some ones. That he also had $150 that was given to him by his ex-wife at Corpus Christi, Tex., when he was down there about the 5th of December.

No brief has been filed nor oral argument made in behalf of this defendant.

In cases of this kind, we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in the admission and rejection of evidence.

In this case we have examined the record and find it free from substantial error. We have also read the evidence, and as to its sufficiency to sustain the verdict and judgment of conviction we think there can be no reasonable doubt. The instructions given by the court, to which no objection was made or exception taken, correctly and fully present the law of the case.

It appearing that the defendant had a fair and impartial trial and was properly convicted, the judgment of the district court of Oklahoma county is accordingly affirmed.

BAREFOOT and DAVENPORT, JJ., concur.


text:
    HENRY SARTEN v. STATE.
    No. A-9429.
    July 21, 1939.
    (92 P. 2d 972.)

      G. W. Daney and H. H. Cook, both of Atoka, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Henry Sartén, was convicted in the district court of Atoka county on information charging that in said county, on or about the 6th day of August, 1936, he did take, steal, and carry away one two-year-old red muley heifer, branded _F on right hip, the personal property of Mrs. Belle Fink. The jury found him guilty and fixed the term of his imprisonment in the penitentiary at two years. Judgment and sentence accordingly.

The only question raised on this appeal relates solely to the sufficiency of the evidence to sustain the conviction.

The evidence upon which the defendant was convicted is conceded to have established the following facts:

Mrs. Belle Fink lived 11 miles southwest of Atoka, in Atoka county. The defendant lived two miles northwest of her place. Mrs. Fink had some cattle on the range in the neighborhood, among them a two-year-old muley heifer. On the date alleged she heard of its disappearance, made an investigation, and discovered that this heifer was gone. She immediately reported her loss to the sheriff. The next day the heifer was located at the Oklahoma City stockyards. She sent one of her sons after the animal, and he returned it to her.

Bud Fink, son of Mrs. Fink, testified that he lived on the road between the defendant’s place and Atoka; that on August 6, 1936, about 8 o’clock in the morning, the defendant drove by his place with a red cow in a pick-up truck, and was driving 35 or 40 miles an hour when he passed about 30 steps from him; that, thinking it was his mother’s cow, he went over to her place and asked her what she got for the heifer and she said she had not sold it; a few hours later his mother told him that her two-year-old red muley heifer, branded F on left hip, was gone.

Otis Fink, son of Mrs. Fink, testified that the next morning he loaded up some calves and drove to the Oklahoma City stockyards, and there found his mother’s heifer in Jake Simm’s lot. He was told there that Henry Sartén brought that heifer there about 3 o’clock the day before; that he notified the brand inspector and had the sale stopped, then went back to Atoka and had a warrant issued for the defendant. The next day he went to Oklahoma City with Ralph Ray and they brought the heifer back.

E. W. Parr testified that he was receiving clerk for the National Stockyard Company, at Oklahoma City, that he did not know the defendant, Henry Sartén, but on August 6, 1936, a man by the name of Henry Sartén delivered an animal to the Oklahoma City Stockyards. He thereupon identified the truck way-bill, introduced as Exhibit “A”, showing the following- recitals: “Received by Parr. Chute 2. Date 8-6 A.M. 2 1 Owner. Henry Sartén 2 P. 0. Address: Atoka. 3 Truck driver, flenry Sartén. 4 License No. 783-106. 5 Transportation charges. 6 Commission firm. Jake Simms. 7 No. Head. One cattle. Brand 1 left hip. yarded in 10-89 by Parr.”

H. T. Weeks testified that he was in the banking business and had been so engaged the past 17 years; that in the course of his business he was required to pass upon signatures and checks passing through his bank; that the defendant had maintained an account in his bank and he was familiar with his signature. Handed the waybill, his attention was called to the name of Henry Sartén thereon, and he stated that in his opinion the signature on the waybill was the signature of the defendant, Henry Sartén.

When the state rested its case, the defendant interposed a demurrer to the evidence, which was overruled. Exception.

On the part of the defense, J. D. Simms testified that he was engaged in the livestock commission business at the Oklahoma City stockyards. He further testified that any cow brought in by the defendant had been paid for, and if his firm executed any release of a cow purporting to belong to Mrs. Belle Fink, he had no knowledge of it. On cross-examination he stated:

“I was not there when the cow was brought in, if any was brought in; I don’t know anything about it.”

B. ft. McIntosh testified that he lived at Seminole and was with B. E. King, about the 1st of August, beyond the Sartén place on the Boggy, when a man sold to the defendant a brown white-faced cow, about five or six years old.

John W. Sartén, father of the defendant, testified that his son, Henry Sartén, came to his place about the 5th of August with a brown or red cow and said he was going to the city with her, that he and his son, Henry, had for sometime been buying hogs and cattle and carrying them to the Oklahoma City market, and would make trips sometimes once or twice a week.

As a witness in his own behalf, Henry Sartén testified that he lived with his father and was engaged in trading livestock; that he did not take a cow belonging to Mrs. Belle Fink to Oklahoma City, that he took a Jersey red brown white-faced cow to the city on said date and billed her through Jake Simms. That he bought the cow west of the Twin Bridges, across the Boggy. He admitted that the signature on the waybill was his signature.

We deem it sufficient to say that while there is some conflict in the evidence, we think that the evidence in the case is amply sufficient to support the verdict and judgment under the repeated holdings of this court, which are not necessary to cite in this opinion.

It appearing that the defendant had a fair and impartial trial, and that no error was committed prejudicial to his substantial rights, the judgment of the district court of Atoka county is affirmed.

BAREFOOT and DAVENPORT, JJ., concur.


text:
    RAY ROBINSON v. STATE.
    No. A-9520.
    July 28, 1939.
    (92 P. 2d 1082.)

      L. E. Roseboom, of Enid, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   DAVENPORT, J.

The defendant, Ray Robinson, was by information, filed in the district court of Garfield county, Okla., charged with burglary by breaking and entering a certain building, located on the St. Louis & San Francisco Railway right of way in the town of Imo, Okla., occupied by and in possession of the Farmers Co-operative Elevator Company, a corporation; was tried, convicted, and sentenced to be imprisoned in the state penitentiary for a term of five years; from which judgment and sentence, the defendant has appealed.

H. H. Peerboom, testifying on behalf of the state, in substance, stated:

“I live at Enid. On the 27th day of July, 1937, I was manager of the Farmers Elevator at Imo, in Garfield county, Okla. On the 26th day of July, I made an inventory and checked up all the stock on hand for insurance purposes. On the morning of the 30th of July, 1937, I discovered six sacks of bran, six sacks of Sweet feed, four sacks of corn chops, two sacks of cottonseed meal, one sack of Sudan seed, one sack of kaffir corn, one sack of shorts, and three small sacks of oats were missing. They are worth about $40 or $45. The bran was worth $1.25 per hundred. After considerable investigation, I found that a small trap door on the east side of the warehouse had been broken open. I called the officers, made certain inquiries, investigated, and located six sacks of bran at Mrs. McOscar’s. I identified it as the same type and kind of bran that I had lost.”

Herb Walker, testifying for the state, in substance stated:

“I live at 430 South Arthur, running a restaurant at 108 East Main street, Enid, known as Herb’s Coffee Shop. I was operating that restaurant last year. About the middle of July this defendant, Ray Robinson, came and asked me if I wanted to buy some feed. I advised him that I was not interested, but that Mrs. McOscar would probably buy it. I got them together, and they talked in my restaurant about the feed.”

Mrs. D. A. McOscar, testifying for the state, stated:

“I live on a farm with my husband, and raise hogs, chickens, turkeys, horses, cows, and calves. We gather garbage and buy considerable feed stuff. Herb Walker told me that Ray Robinson had some feed to sell. I went out and inquired the price of bran per hundred, and found it was worth $1.25. I came back to the coffee shop and saw Ray Robinson; and he told me he would sell this bran for $1 per hundred. I told him I would take it. I talked to Ray Robinson; but the rest of them were present. I know Buddy Husted. I bought on the strength of Husted working at the elevator, and these boys working for Mr. Garber. I also advised him about what time I would be at home that afternoon. This was on the 27th day of July, 1937. Shortly after I got home, Ray Robinson and two other boys came with six sacks of bran. I had them put it in the feed house, and paid Ray $6 for it. Later Mr. Peerboom and the deputy sheriff came out, and they took the sacks and feed. I know Buddy Husted; he had worked at the elevator during the summer.”

D. A. McOscar, testifying for the state, stated in substance :

“I had a little stock farm a mile west of the waterworks and a half mile- north from Enid. We bought considerable feed. The parties came by where I was talking to Mr. Dodd about buying an automobile. After awhile I went on to the house, and saw the feed in the feedhouse that my wife had bought from the boys. Jim O’Brate and Mr. Peer-boom came out, and Mr. Peerboom identified the bran as the sacks that had been taken from his elevator.”

M. Dodd stated that:

“I was talking to Mr. McOscar on the highway leading to his house about selling him a car. I noticed a car come up the road. It looked to bé a 1929 or 1930 model Chevrolet. There was more than one person in the car, but I don’t know how many. They were all men or boys. They went up to Mr. McOscar’s house, and were gone about 20 minutes, and came back.”

Elon Denny, an accomplice of the defendant, the next witness on behalf of the state, stated:

“I. am well acquainted with Ray Robinson and E. D. Husted. I have known Ray Robinson five or six years, and knew him prior to the 26th day of July, for about a month. I live in Enid. Prior to that time I lived in Kansas. I have been in trouble in Kansas; sentenced to the pen on a charge of rape, and paroled when I was 17 years old. I am now 21. On the 26th day of July, 1937, I met Ray Robinson on the east side of the square, and had a conversation with him. We later met at the coffee shop. We went to the elevator at Imo intending to get some wheat, but found a padlock on the elevator. We traveled in Ray Robinson’s 1930 model Chevrolet sedan. When we couldn’t get in the elevator, we went to the east side, and inspected the trap door. We each tried it, and finally Ray Robinson opened it, and we went in, Ray, Buddy Husted, and myself. We took six sacks of bran, three sacks of oats, and one sack of Sudan seed, and put it in the car. This was about 2 or 2:30 in the morning. We hid it under a culvert; came into town, and stayed until about 8 o’clock; and slept in the car out on Locust. About 8 o’clock we came to Herb’s Coffee Shop. Ray said he would find somebody to buy it. He talked to Herb, and then to Mrs. McOscar; and later we delivered the feed; took six sacks of bran and one sack of oats to Mrs. McOscar’s. While in jail I had some conversation with Ray; and Ray did not want me to testify against him. He told Buddy Husted and I, if we would go on down there, he would see that we got money and smoking tobacco. He was supposed to give us a dollar if we would take the fall. I said I would not do it. The rest of the feed that wasn’t taken to Mrs. McOscar’s was taken by me and Buddy Husted to Mrs. Leisure’s.”

On cross-examination the witness admitted a conviction of a felony in Kansas, and stated he was paroled. He had been charged with other things, but was not found guilty. “Buddy Husted and I had been in jail three days before Ray Robinson was arrested.”

Jim O’Brate, testifying for the state, stated:

“I am deputy sheriff, and investigated the burglary of the Imo on July 30th. I found that there was some feed gone, and discovered where they entered the building. I accompanied Mr. Peerboom to Mrs. McOscar’s, and saw the feed out there. Mr. Peerboom identified the property as being his.”

May Leisure, testifying for the defendant, stated:

“I live at 3030 East Maple, Enid, Okla. I knew a boy by the name of Buddy Husted; I had known him a short time. Buddy Husted and Elon Denny made a trip out to our place. I thought the car they were driving was a maroon color, sort of a clean looking car. They offered to sell me some feed. I bought some and paid a reasonable market price for it. They asked to leave some part of at my place; said they wanted to sell some of it to get some money to go to Colorado the next morning.”

On cross-examination she said she could not say for sure about the car.

The defendant, testifying in his own behalf, admitted he had been convicted of a felony when he was 19 years old, and that he was now 23.

‘T was committed for the crime of burglary. I did not have anything to do with going to the Imo elevator; nor did I open the trap door, and assist in taking the stuff out. I had known Buddy Husted and Elon Denny about two years. I was in Enid on the 27th of July. I heard Elon Denny testify, and that was not so. On the 27th of July I assisted Buddy Husted and Elon Denny in selling six sacks of bran to Mrs. McOscar. About nine o’clock in the morning I saw Buddy and Elon, and talked with them; and they wanted to know if I knew any one who would buy some bran. We went to the coffee shop, and I asked Herb if he wanted to buy any bran; and told him that Buddy Husted had six sacks he wanted to sell. Herb said he knew a lady who might be interested. When she came in Herb told her about it. She said she would take the bran, and would be at home about noon or a little after. Buddy Husted asked me to go home and get my mother’s car; and I went out there for him. The car had a piece broken in the fuel pump; and I had to walk to town and back — out to my mother’s. Elon Denny, Buddy, and myself walked out there and asked my mother if we could use the car. My mother said it was out of fix. I told her they wanted to get a car to haul some bran. She asked what I was going to get out of it, and I said $1. Buddy Husted, Elon Denny, and I hauled the bran out to Mrs. McOscar’s. The money was paid to me. I then drove to the east corner of the square, and let them out, and went on towards home.”

On cross-examination the defendant stated:

“I had known Husted two years. I had not heard of his reputation until he was in jail. I understood that Husted had brought the bran home. I understood that the reason that he got it was that it was damaged a little. The feed was in Husted’s father’s garage. Husted's daddy worked at an elevator as night watchman. All I know about it was that Buddy told me his daddy got it out there. I didn’t suppose he stole it. I didn’t hunt up the sheriff and have him investigate it. I did not go to Pauls Valley in 1929. In May, 1933, I was sentenced to the county jail for petit larceny. I did not have the conversation testified to by Elon Denny in the jail. I did not have any conversation with Husted. I did not have any trouble with any one while in jail. I did not know that Husted and Denny were engaged in the burglarizing business. I work a few days once in a while, and can get money from my mother and father any time.”

Dorothy Cass stated that she knew the defendant. She had been working in the Shamrock Cafe until it closed.

“I have known Ray Robinson for a year and a half, and have been keeping company with him. I had been with him every night most of the time prior to the alleged robbery.”

Her testimony was an effort to establish an alibi.

Mrs. Jap Robinson stated:

“I am Ray Robinson’s mother. When he got into this trouble he was staying at home. He usually slept out-of-doors in the yard, and when he got in jail we called up to find out what they had him in for. We have a Chevrolet automobile and another car out there that Mr. Robinson used in his work, one of them an old model, not very good. On the 27th of July, 1937, Ray got permission to use my car. Buddy Husted and Elon Denny came out with Ray. The boys said they wanted him to get the car and haul some stuff they had to sell. They fixed the car. They came out sometime in the afternoon. We did not have a two car garage, but kept both cars out at the house.”

Jap Robinson testified for the defendant:

“I am Roy Robinson’s father. We had two cars out at my place in July. I used one in my work, and one was for the family use. One was a tudor sedan, and the other was a coup, both Chevrolets. The sedan had been painted black. The other was blue with a red stripe. I met Dorothy Cass at my house. On the night of July 27th, 1937, my car was not taken away from the place and gone until morning. I left the car between 6:30 and 7:00 where I had parked it, and if it had been gone I would have known it.”

The foregoing is the substance of the testimony.

The defendant has assigned eleven errors alleged to have been committed by the trial court, and has presented a written argument in support of the same; but has not cited any authorities in his brief to sustain his contentions.

The only assignment that is necessary for this court to consider is his assignment 9 that:

“The state depended solely on testimony of an accomplice, Elon Denny; and the testimony of said accomplice, Elon Denny, was uncorroborated.”

Before a conviction can be sustained upon the testimony of an accomplice, it is necessary that there be other testimony, either positive or circumstantial, connecting the defendant with the crime charged.

In Bradley v. State, 18 Okla. Cr. 503, 196 P. 730, in the third paragraph of the syllabus this court said:

“Defendant’s recent possession of property shown to have been stolen at the same time and from the same place of the alleged burglary is a circumstance which the jury may weigh and consider in connection with all the other facts and circumstances in the case.”

In Yeargin v. State, 54 Okla. Cr. 34, 14 P. 2d 431, this court in the first syllabus said:

“Where an accused person is found in possession of property taken from a place recently burglarized, that fact may be considered by the jury, along with all other circumstances, as tending to show that the one in possession committed the burglary.”

The testimony in this case, which was a question for the jury to determine as to the weight of the testimony and credibility of the witnesses, showed that this defendant, Buddy Husted, and Elon Denny were around the city of Enid together; that on the morning after the robbery was committed that night, they showed up in Herb’s restaurant; and the defendant offered to sell Herb six sacks of bran. Herb did not want to buy the bran, but told him that he thought Mrs. McOscar would buy it; that Mrs. McOscar came in, and Herb told her that the defendant had some bran that he wanted to sell. She went out, and found the price was $1.25 per hundred, and came back, and agreed with the defendant, and bought the bran at $1 per hundred. Mrs. McOscar’says that she bought the bran because of the fact that she knew Buddy Husted, and knew that they had been working at the elevator, and that the other boys had been working for Mr. Garber.

Later on in the day Buddy Husted, Elon Denny, and the defendant, in one of the cars of the family of the defendant, delivered the bran to Mrs. McOscar out at her farm. Buddy Husted and Elon Denny, as shown by the record, sold to Mrs. Leisure a part of the stuff that had been taken from the elevator, and left a part of it at her place, telling her that they wanted to sell a part of it, because they wanted to go to Colorado the next day.

Every circumstance and action of the defendant, from the early morning after the burglary was committed that night up to the time of the conviction, connects him so closely with the burglary, and sufficiently by acts and circumstances corroborates the accomplice.

It is needless to extend this opinion further. The evidence of the other witnesses, the actions of the defendant, and when appearing early the next morning with the parties named in connection with the burglary, clearly show him guilty; clearly show that the jury was warranted in convicting him.

The judgment of the trial court is affirmed.

DOYLE, P. J., and BAREFOOT, J., concur.