text:
    OTIS CLIFFORD v. STATE.
    No. A-7494.
    Opinion Filed Oct. 25, 1930.
    (292 Pac. 870.)
    John W. Whipple, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst~ Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of larceny of domestic fowls, alleged to have been the property of Clarence McIntosh, and was sentenced by the court to the state penitentiary at Granite, Okla., for a period of one year and: to' pay the costs of this action. From which sentence and judgment the defendant has appealed.

The testimony in this case on behalf of the state shows that on the 21st day of February, 1929, Clarence McIntosh, the prosecuting witness, was the owner of some chickens and had them in his hen house near his home near Ripley, in Payne county, Okla.; be missed four of these chickens on the morning of the 22d of February, and began to investigate to see if he could find out who had taken them; the next day after the prosecuting witness had missed his chickens, he learned the defendant in this case had cashed a check for $16 and some few cents, at a store of a merchant in Ripley; the check had been signed by the Acme Produce House, of Cushing, Okla., and made payable to Joe Long; the prosecuting witness went to the produce house and identified three of his chickens; there were several chickens in the produce house, but the witness positively identified three of the chickens; two of them were returned to him and the produce company paid him for one of them.

The defendant for a defense pleads an alibi and calls as witnesses to’ sustain him Cynthia Bower, Annie Trammel, and Lou Clifford; Cynthia Bower and Annie Trammel testifying that the defendant was living at the home of Frank Dunkin, and that he was at the Frank Dunkin home the evening of February 21, 1929, and remained there until they retired, which was some time around 11 or 12 o’clock; that he went upstairs and went to bed, and was there the next morning at breakfast time; they did not hear him leave or know of his leaving during the night. Cynthia Bower testified she was the owner of some chickens, and as the defendant was going to the town of Cushing the next morning, she got him to take her car and take fifteen chickens of hers to market; that he did so and returned with the money for her. The defendant denies having anything to do with the chickens belonging to the prosecuting witness, or that he even knew where he lived; he admits selling the chickens on the 22d day of February, 1929, to a produce company and cashing the check at a store in the town of Ripley, Okla., and states tlie chickens be sold were chickens Cynthia Bower got him to take to town and sell for her; that he had nothing to do with the sale of the chickens alleged to have been stolen from the prosecuting witness Clarence McIntosh.

The county attorney and the sheriff each testified that in a conversation had in their office the defendant admitted he took the chickens of the prosecuting witness. The defendant denies this statement, and denies he ever confessed or admitted to any one he had anything to do with the stealing of the McIntosh chickens. A sister of the defendant stated when she came to get him released on bond, the sheriff asked her to talk with the defendant and try to get him to tell who got the chickens. The sheriff denies he made that request of the sister of the defendant, but stated in substance he asked her to try to get the defendant to tell who assisted him in taking her chickens. This is in substance the testimony.

The defendant has assigned several errors committed by the court in the trial of his case. The fourth, fifth, and sixth assignments of the defendant all relate to the sufficiency of the evidence. There is a conflict in the evidence; the state’s testimony as to the taking of the chickens is circumstantial, but the prosecuting witness claims he found three of his chickens in the produce house at Cush-ing; the testimony shows that the defendant that morning sold a number of chickens, and the prosecuting witness identifies some of the chickens at the produce house as being his chickens.

Where there is a conflict in the evidence this court has repeatedly held that the question of settling the conflict is within the exclusive province of the jury, and that the verdict of the jury will not be set aside for want of evidence to sustain it when there is evidence in the record from which the jury could legitimately draw the conclusion of the defendant’s guilt. Calvert v. State, 10 Okla. Cr. 185, 135 Pac. 737; Davis v. State, 10 Okla. Cr. 169, 135 Pac. 438.

The evidence is sufficient to¡ sustain the judgment.

It is next argued by the defendant that the judgment in this case is excessive, and not sustained or warranted by the evidence adduced at the trial of said cause. The record shows that the jury found the defendant guilty, but failed to agree upon the punishmeht to be imposed on the defendant upon the verdict of guilty, and the court sentenced the defendant to be imprisoned at the peniten-. tiary at Granite, Okla., for a period of one year and to pay the costs of the prosecution. Considering the value of the chickens alleged to have been stolen, it would appear that the sentence in this case, when considered from the standpoint of the value of the chickens, was excessive, but after a careful consideration of the record we are not inclined to modify the sentence.

The judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    CHRIS WIEDERKEHR v. STATE.
    No. A-7492.
    Opinion Filed Oct. 25, 1930.
    (292 Pac. 895.)

      Wieck & Armstrong and -D. E. Hodges, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereafter called defendant, was convicted in the county court of Kay county of the crime of unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $200 and imprisonment in the county jail for six months.

The evidence of the state was that the defendant lived at 941 Union street, in Ponca City; that one Tubby Phillips was staying with and working for the defendant; that the officers being in the vicinity of defendant’s home observed Phillips going from the house to a fence in the rear of the house to get whisky; that he took some into the house; that the officers procured a search warrant and came back and searched defendant’s premises, and found three pints of whisky concealed at the place where they had seen Phillips getting whisky and one pint in the front yard, not far from where the defendant was sitting, on his front porch; that the officers saw Phillips go into the house with a glass jar, and observed the defendant and Phillips pouring something from the jar into bottles; that on searching the house they found empty whisky bottles and corks in the kitchen.

Defendant argues what he calls three assignments of error:

(1) That the court erred in overruling the demurrer of this defendant to the evidence introduced on behalf of the state, to which ruling of the court the defendant duly excepted at the time.

(2) That the court erred in overruling; the motion of the defendant for a verdict of not guilty at the close of the trial of said case.

(3) That the verdict of guilty is not sustained by the evidence and is contrary to law.

These three assignments amount to but one, the sufficiency of the evidence to sustain the verdict.

Boiled down, the evidence of the state is that Tubby Phillips, who was working for and staying with the defendant, was moving whisky from the back of the lot into the house; that whisky bottles and corks were found in the house, and the defendant was seen helping Phillips put something into bottles; that four pints of whisky were found on defendant’s premises, one near where defendant was sitting on his porch and. the other three pints where Phillips had been going to get the whisky. Of course the defendant denied that he had anything to do with the whisky, or knew, that it was there.

This court on August 16, 1930, affirmed another case against the defendant, 48 Okla. Cr. 295, 290 Pac. 936, wherein he was charged with the unlawful possession of intoxicating liquor. The county attorney might have prosecuted defendant for a second and subsequent offense, which would have been a felony, but elected to prosecute only under the misdemeanor statute.

The quantity of whisky found being sufficient to make a prima facie case, and the facts and circumstances tending to connect the defendant with the same, the evidence was sufficient to support the verdict of the jury.

For the reasons stated, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    ANNIE LOVE et al. v. STATE.
    No. A-7538.
    Opinion Filed Oct. 25, 1930.
    (292 Pac. 882.)
    John F. Pendleton and M. D. L. Cox, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Nowata county on a charge of stealing chickens in the nighttime, and the punishment of the defendant Annie Love fixed at two years in the state penitentiary, and of defendant Emma Thompson at one year in the state penitentiary.

The evidence of the state is largely circumstantial, but shows that on the night in question these defendants, who live in the town of Lenapah and are Negroes, drove out to the farm home of one Wesley McCrary in an automobile and there, in the nighttime, stole from the chicken house of McCrary certain Plymouth Bock hens. After the defendants were arrested, some of these chickens were found in the henhouse of defendant Annie Love and the balance of them .had been taken to Coffeyville, Kan., where they were sold to the Kansas Produce Company, and the check in payment thereof made payable to Mamie Rowe and cashed by the Penny Mercantile Company after defendant Emma Thompson had signed the name of Mamie Rowe to the check. The defense was an alibi.

The defendants contend first that the court erred in admitting certain incompetent evidence.

This assignment of error relates to the admission of certain testimony relative tO' the discovery of certain hens in the henhouse on the premises of defendant Annie Love, which said hens were taken from said henhouse by the direction of a couple of officers of Nowata county, without a search warrant for said premises. At the time the search was made the defendants were all under arrest. Palmer Love, who was jointly charged and tried with these two appellants, was under arrest, and it was he who went into the henhouse and took out these hens under the direction of the officers. The defendant Annie Love was present and made no objection to this procedure. Two of the hens taken from the henhouse under the search were identified as the property of McCrary.

In the case of Yeager v. State, 48 Okla. Cr. 318, 278 Pac. 665, 666, in paragraph 5 of the syllabus, this court said:

“Where a person is legally arrested for an offense, whatever is found upon his person or in his control, which may be used to prove the offense, may be seized and held for evidence in the prosecution.”

See, also, Washington v. State, 37 Okla. Cr. 415, 259 Pac. 150.

Under the authorities cited, this evidence was clearly admissible against all of the defendants.

Defendants next contend that the verdict is contrary to the evidence and not supported by the evidence.

In cases of this character, the evidence is usually circumstantial and contradictory, but the facts and circumstances disclosed by the evidence in this case are such that no honest and intelligent jury could have returned any other verdict.

Defendants further contend that the trial court erred in overruling their motion for a new trial on the ground of newly discovered evidence.

The motion for a new trial was wholly insufficient for the reason that the newly discovered evidence was not set out, the motion did not state why the evidence could not have been secured at the time of the former trial by reasonable diligence, and does not state any facts showing diligence, nor was the same verified as required by law.

In Slater v. U. S., 1 Okla. Cr. 275, 98 Pac. 110, this court said:

“In a motion for a new trial, upon the ground of newly discovered evidence, the affidavit of the defendant should set out the proposed evidence, and it must be such as could not have been secured at the former trial by reasonable diligence on the part of the defendant, and the diligence used must be stated in the affidavit. The affidavit of the witness should, if possible, accompany the motion.” Turner v. State, 48 Okla. Cr. 74, 289 Pac. 1111.

The defendants had a fair trial, and the evidence is sufficient to support the verdict of the jury. For the reasons stated, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    FRED C. BLAKLEY v. STATE.
    No. A-7561.
    Opinion Filed Oct. 25, 1930.
    (292 Pac. 878.)
    Sullivan & Rice and Gerald Spencer, for plaintiff: in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Stephens county of the larceny of an automobile, and his punishment fixed by the jury at imprisonment for five years in the state penitentiary.

The evidence of the state was that W. C. Lawler was the owner of a Chevrolet coupe, 1928 model; that on the night of November 4, 1928, Lawler parked his car in front of the Wade Hotel and went in the lobby and stayed for about 30 minutes; that as he came out of the lobby he noticed his car had been backed out from the curb and heard the engine running and saw some one in the car starting west; Lawler ran and jumped on the running board and called for the police; that the defendant was in. the car driving it down the street, and cursed Lawler and ordered him to get off of the car; that Lawler would shift the gear and defendant would push it back in; that after defendant had driven the car for a block and a half, Lawler cut off the light and defendant lost control of the car and ran it into a railing near the New Duncan Hotel, where it was stopped, and that, as the car came to a stop, defendant jumped out and ran, but was arrested a short time later.

Defendant contends that the case should be reversed because this evidence was insufficient to constitute the crime of larceny, contending that at most it proved an attempt on the part of the defendant to steal Lawler’s car. The evidence of the state, which is uncontradicted, shows conclusively that defendant took possession of Lawler’s car and had moved it from the place where he had parked it out into the public street and had started to drive west with it before Lawler saw that it was being taken and ran and jumped on the side of the car. The state’s evidence shows that the defendant had obtained complete possession and control of the car, and had such control from the time he started the engine moving until the time that Lawler ran out and jumped upon the running board of the car.

An attempt to commit the crime of larceny is composed of three elements: First, an attempt tO' commit larceny; second, doing some act or acts which would in the usual and natural course of events, if unhindered by extraneous causes, result in the commission of a larceny; third, failure to consummate the larceny. The third element is as important as either of the others, for, if the attempt is successful, the crime of larceny is complete, and there can be no conviction of an attempt to commit it. People v. Lardner, 300 Ill. 264, 133 N. E. 375, 19 A. L. R. 721.

The rule as stated in 25 Cyc. 19 is:

“There must be a complete severance of the chattel from the possession of the person from whom it was taken, and an assumption of actual control by the taker; and if complete control is assumed and the goods are actually carried away the least distance, it is enough, although the possession of the taker is immediately interrupted.”

36 C. J. 749 states the rule:

“If the possession and control of the taker becomes absolute at any moment, the duration of his power over the things taken is immaterial. If it is exercised even for the smallest appreciable length of time, the taking is complete and effectual although the defendant immediately abandons or returns the thing.”

Page 750, supra:

“The act of asportation is complete if the things are removed from their original position, however slight the change of position may be.” State v. Rozenboom, 145 Iowa, 620, 124 N. W. 783, 29 L. R. A. (N. S.) 37; State v. Williams, 199 Mo. 137, 97 S. W. 562; Adams v. Commonwealth, 153 Ky. 88, 154 S. W. 381, 44 L. R. A. (N. S.) 637; McIntosh v. State, 105 Neb. 328, 180 N. W. 573, 12 A. L. R. 798.
“To take signifies to lay hold of, to seize or grasp in some manner. And in larceny there must be such a taking that the accused will acquire dominion over the property. While the severance of the possession of the owner, and the actual possession of the wrongdoer, may be but for a moment, and while the length of time they continue is not important, still as appreciable facts they must exist.” 17 R. C. L., p. 9, § 7.

Under the evidence of the state the intent of the defendant to permanently deprive the owner of his property is apparent, and the taking of the property from the possession of the owner by defendant ano his control over it for a short period of time is clearly established. Under the authorities cited this makes it a complete case of larceny.

The defendant next contends that the court erred in failing to instruct the jury upon the law of attempted larceny. Since there was no evidence in the record tending to show such an offense, it was not necessary for the court to give such instruction. The instructions given by the court upon its own motion fairly state the law of the case. The defendant saved no' exceptions to these instructions and made no request for any other or additional instructions.

The evidence being sufficient to support the verdict of the jury, and the errors of law complained of being without merit, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    LEW TEETERS v. STATE.
    No. A-7535.
    Opinion Filed Oct. 25, 1930.
    (292 Pac. 879.)

      Jas. A. Embry, for plantiff in error.
    J. Berry King, Atty. Gen., and. Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Lincoln county of the crime of larceny of domestic fowls in the nighttime, and his punishment fixed by the court at imprisonment in the state penitentiary for six months.

It appears from the record that the information was filed by Roscoe Cox during his term as county attorney of Lincoln county, but the case was not brought to trial until after his term as county attorney had expired and. John Embry had been duly elected and qualified as county attorney. Mr. Embry had previously represented the defendant and was consequently disqualified to prosecute the case as county attorney.

It further appears from the record that on the 23d day of January, 1929, and pursuant to assignment theretofore duly made, the cause came on for trial before Hon. W. G. Long, who had been duly and regularly assigned to preside as trial judge; plaintiff present by its attorney Roscoe Cox, as special counsel, defendant present in person and by his attorney, Jas. A. Embry, both sides having announced ready for trial, a jury is called, interrogated, and sworn to try the issues of fact in said cause, and thereupon the following proceedings were had, to wit:

“Mr. Embry: Comes the defendant and objects to the special counsel proceeding in the prosecution of this case for the reason that he has never been since his appointment, qualified in the matter as required by law, authorizing him to conduct a prosecution on behalf of the State, and of this particular case.
“The Court: Overruled and exception.”

Defendant contends that the court erred in overruling his objection to the appearance of the special prosecutor. Defendant made no showing to support his allegations in his motion that the special prosecutor had not qualified, contenting himself merely with objecting to the appearance of Roscoe Cox, former county attorney, as special prosecutor.

This court has uniformly held that all presumptions are that the proceedings in a criminal case are regular and in conformity to law, and, when an accused challenges the proceedings, he must show affirmatively the irregularity of which he complains. Bennett v. State, 21 Okla. Cr. 27, 204 Pac. 462; Wheeler v. State, 25 Okla. Cr. 365, 220 Pac. 962; Wallace v. State, 29 Okla. Cr. 197, 233 Pac. 241; Cooper v. State, 31 Okla. Cr. 217, 238 Pac. 503; Ross v. State, 34 Okla. Cr. 363, 246 Pac. 645; Ables v. State, 35 Okla. Cr. 26, 247 Pac. 423.

It will be presumed that everything done in a court of record is regular until the contrary is made to appear, and the burden is on the party complaining of the action of the trial court to show how he was injured thereby. Coleman v. State, 6 Okla. Cr. 252, 118 Pac. 594; Thornsberry v. State, 8 Okla. Cr. 88, 126 Pac. 590; Hess v. State, 9 Okla. Cr. 516, 132 Pac. 505.

In the case at bar the record fails to show whether the special prosecutor had qualified or not, but the presumption of law is that he had. The burden being upon the defendant to show affirmatively by the record a failure to do so, the objection presents no question to be passed on by this court.

The defendant next contends that the evidence is insufficient to support the verdict of the jury. There is a sharp conflict in the evidence, but this conflict was for tbe jury. The principal evidence against the defendant was furnished by Mrs. Holmes and Mrs. Blaylock, who are sisters of the defendant and who were witnesses for the state. The defendant contends that their evidence was inadmissible for the reason that their husbands were accomplices of the defendant in the larceny of the chickens. The evidence of these women would have been inadmissible in a trial of their husbands, but in the case at bar, where no claim was made that they were parties to the larceny and where their husbands were not charged nor on trial, their evidence was clearly admissible against the defendant.

There being sufficient competent evidence in the record to support the verdict of the jury, and the errors of law complained of by the defendant being without merit, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


author: DAVENPORT, J.

text:
    ROY CHRISTIAN v. STATE.
    No. A-7555.
    Opinion Filed Oct. 25, 1930.
    (292 Pac. 876.)

      J. R. Brewster, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted on a charge of larceny of domestic fowls, and was sentenced to serve a term of two years in the reform school. From which sentence the defendant has appealed.

The testimony in this case shows that on the 21st day of February, 1928, Art Tallent was the owner of a flock of Rhode Island Red chickens; on the night of the 22d, or the early morning of the 23d, twenty-two' or more of the chickens were taken from his home, and later the defendant and one Calvin Martin were found in possession of the chickens on the road between the defendant’s home and the city of Okmulgee, Okla.; they were taken into custody and taken to jail in Okmulgee and the chickens recovered, the prosecuting witness identifying two of them as being chickens that belonged to Mm, and the others by their appearance as being his chickens. While at the jail at Okmulgee the prosecuting witness testified that the defendant and Martin told him, if he would not prosecute them, they would return the chickens to his home. The chickens were returned to defendant, and prosecution was instituted in Creek county, Okla., where the offense is alleged to* have been committed.

The defendant introduced considerable testimony to show that Martin claimed to have bought the chickens from another party, trading him a tent for them. This is, in substance, the testimony in the case.

The chickens were found in the possession of the defendant and Calvin Martin, and identified as being the chickens belonging to the prosecuting witness, and the defendant attempts to show how they come into possession of them.

The defendant alleges the court committed eight errors in the trial of his case. The first error argued by the defendant in his brief is that the superior court of Creek county was without jurisdiction to hear and determine this case, for the reason that the defendant was not charged in the examining court by a sworn complaint, and that the complaint is only signed by J. Arthur Wilson, sheriff of Creek county, Okla., who' at the most could have signed the same upon information and belief. From an examination of the record we find that the preliminary complaint was signed by J. Arthur Wilson, dated February 24, 1928, and filed in the justice court of W. H. Herman, and that W. H. Herman’s name is signed to the jurat, but it is not followed by the title showing he was a justice of the peace. The record shows that upon this complaint a warrant was issued and the defendant brought into the justice court; that he appeared in person and by attorney and waived preliminary hearing, gave bond for his appearance in the superior court of Creek county, sitting in the city of Bristow, Okla., and that the proceedings of the justice court were transmitted to and filed in the clerk’s office of the superior court of the Bristow division, on March 9, 1928, and that thereafter an information was filed; the defendant appeared and waived arraignment and proceeded to trial.

It is argued by the defendant that this court did not acquire jurisdiction of his case for the reason that the original complaint was filed by J. Arthur Wilson, whn could not have made the affidavit to the complaint other than upon information and belief, and the defendant cites many cases in support of his contention. The affidavit in this case is positive, and this court has repeatedly held that, where an affidavit on its face is positive in form, it is sufficient to give the court jurisdiction. The defendant cannot for the first time raise the question of the validity of the affidavit in this court. The defendant went to trial without filing any motion to the jurisdiction of the court and entered his general appearance and defended on the facts as presented by the state, and at no time in the proceedings did ’he question the validity of the affidavit to the original qomplaint, or to' the information not being predicated upon the proper preliminary hearing.

In Steiner v. State, 83 Okla. Cr. 298, 243 Pac. 1002, this court said:

“Where an unverified complaint charging a felony is filed before a magistrate, it is insufficient to authorize the issuance of a warrant, but, if a warrant is issued on such complaint, and a defendant apprehended and arraigned and submits to1 the jurisdiction of the magistrate, and has a preliminary trial on such complaint without challenging its sufficiency for lack of verification, such defect is waived.”

Our statute (Comp. St. 1921, § 2959) requires that the preliminary complaint be verified. This provision of the statute is intended to safeguard the personal security, and the liberty of the indvidual, and to prevent the issuing of a warrant upon baseless and unfounded prosecution. In this case the jurat of the preliminary complaint shows to' have been sworn to by J. Arthur Wilson, the jurat is signed by W. H. Herman, but does not show that W. H. Herman was a justice of the peace. The failure of the magistrate to' put his title following his name after the jurat to- the preliminary complaint was a clerical eiror which could easily have been corrected had the defendant complained at the proper time. In this case the defendant made no< objection to the preliminary complaint, but entered his appearance and waived preliminary examination and- was bound over to the superior court of Creek county. An information was filed in the superior court, and no question was raised to the jurisdiction of the court on the ground that the complaint before the examining magistrate was not properly verified, nor was objection made until after the defendant appealed to this court. We hold that, where the objection to the preliminary complaint is not raised until the case is appealed to this court, and it is shown by the record that the irregularity is of a mere clerical nature, the objection comes too late.

In Weatherford v. State, 30 Okla. Cr. 86, 234 Pac. 779, this court, in the syllabus, said:

“The jurisdiction of the district court rests upon the findings of a magistrate in a preliminary hearing, but irregularities of a mere clerical nature committed by the magistrate, or irregularities in filing such findings, are not necessarily jurisdictional.”

Tlie record discloses that the court bad jurisdiction of the person of the defendant and of the subject-matter, and the general appearance of the defendant, and trial upon the facts waived any irregularities in the proceedings up to that time, and the defendant cannot be heard for the first time to complain in this court.

After a careful examination of the record in this case we hold that the defendant was accorded a fair and impartial trial; that the court correctly advised the jury as to the law applicable to the facts in this case. There are no errors in the record prejudicial to the rights of the defendant.

The judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    HORACE ROPER v. STATE.
    No. A-7587.
    Opinion Filed Oct. 25, 1930.
    (292 Pac. 875.)

      Jesse H. Dunn, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Murray county of the crime of assault and battery, and his punishment fixed by the jury at a fine of $100 and imprisonment in the county jail for 30 days.

The defendant raises but two questions:

First, that the court erred in overruling defendant’s motion to direct the jury to acquit the defendant upon the ground that the opening statement of the county attorney was insufficient to state an offense against the defendant or to entitle the state to proceed further with the trial of the case.

Section 2687, O. O. S. 1921, provides:

“The jury having been impaneled and sworn, the trial must proceed in the following order:
“First. If the indictment or information is for a felony, the clerk or county attorney must read it, and state the plea of the defendant to the jury. In other cases this formality may be dispensed with.
“Second. The county attorney, or other counsel for the state, must open the case and offer the evidence in support of the indictment or information.
“Third. The defendant or his counsel may then open his defense, and offer his evidence in support thereof.”

Tbe record discloses that the county attorney read the information to the jury, and thereupon said: “Gentlemen of the jury, as to this charge the defendant has plead not guilty, and now it comes on for you to hear the testimony and consider the instructions of the court and base your verdict on that.”

While it is the practice for county attorneys to make an extended statement to the jury of the facts which the state expects to prove, the only mandatory requirement is that the information shall be read and the plea of the defendant to the information stated to the jury after they have been impaneled and sworn and before the state introduces its evidence. The opening statement of the county attorney being sufficient, the court properly overruled defendant’s motion to> direct the jury to> return a verdict of not guilty.

. Defendant for his second ground of error contends that the court erred in rejecting competent testimony offered by the defendant. The record discloses that, while several objections were made to the rulings of the trial court upon the admission of certain evidence and exceptions saved thereto, the defendant made no showing as to what, the witnesses would have testified had the court permitted the questions to be answered.

In Cheeves v. State, 18 Okla. Cr. 480, 196 Pac. 726, in paragraph 6 of the syllabus, this court said: 433; Queen v. State, 23 Okla. Cr. 146, 212 Pac. 1021; Maloon v. State, 38 Okla. Cr. 34, 259 Pac. 173.

“In order to preserve an available objection to the exclusion of testimony, a proper question must be asked, and when objection thereto is sustained, an offer must be made showing what testimony will be given if the witness is permitted to answer. This is proper, in order to enable the trial court to determine whether the testimony is competent, and is necessary to present any question on appeal.” Francis v. State, 22 Okla. Cr. 287, 211 Pac.

In view of the fact that the record in this case does not disclose what the evidence would have been had the witness been permitted to answer, no! question is reserved for review on appeal by this court.

There being no1 merit in any of the objections of the defendant, and the evidence being sufficient to support the verdict of the jury, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    VINCENT H. GOURLEY v. STATE.
    No. A-7534.
    Opinion Filed Oct. 25, 1930.
    (292 Pac. 873.)

      Monk & McSherry, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith 0. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, Vincent H. Gonrley, hereinafter referred to' as defendant, was convicted in the district court of Pittsburg county of the crime of larceny of live stock, and his punishment fixed by the jury at five years in the state penitentiary.

The evidence on the part of the state was that on the night of May 22, 1928, C. E. Stromer, who lived near Kiowa, in Pittsburg county, and wlm operated a dairy, had a pale or medium red cow stolen from his cow lot. This, cow was put in the lot on the evening of May 22d, and was missing from the lot at about 4 o’clock the morning of May 23d, when the daughters of Stromer went to milk the cows. An immediate search was made for the cow and tracks of an automobile found about 100 yards north of the cow lot, but the cow was never seen alive by Stromer after she was put in the lot on the evening of May 22d.

The evidence connecting the defendant with the larceny of this cow is largely circumstantial. It is that on the morning of May 23d the wife of this defendant, who was charged jointly with the defendant with the larceny of the cow, contracted with a butcher in Pittsburg to deliver a fresh butchered beef to him the next day; that this defendant was in possession of this stolen cow the next day after it was stolen; that at about 4 o’clock on the morning of May 24th, this defendant and his wife butchered ah animal, delivered it to a butcher in Pittsburg, and there sold it for 12% cents per pound, which was less than the market price for that kind of beef at that time; that one of the horns of this animal was found on the defendant’s premises; that this was a very peculiar horn — one that was easily identified — and which was positively identified by Stromer and his two daughters, who were constantly with the cows, as a horn off of the animal that was stolen from them on the night of May 22d; that this cow was heavy with calf at the time she was stolen.

A search of defendant’s premises on May 25th disclosed the entrails of a butchered animal, but no- unborn calf was among them. That on Sunday following the 22d, which was the 27th, the carcass of an unborn calf was found where it had been dragged after the animal had been butchered. The hide of this butchered animal was never found, although a diligent search was made for the same. The weight of the animal sold to the butcher by the defendant was about what the weight of the cow stolen from Stromer would have been when dressed. After defendant’s arrest, there was found on his premises a number of other stolen articles which had been stolen from persons in the neighborhood of defendant during a period of several months previous to the offense charged in the case at bar.

The information given by the butcher to the son of Stromer and the investigation that followed led to the arrest of this defendant on Friday, May 25th. The defendant attempted to explain the failure to find the hide of the slaughtered animal by testifying that it was stolen from his car on the way from his home to the butcher shop on the morning of May 24th. The defendant further testified that he bought this animal, together with three others, from some person unknown, who, the defendant claimed, was moving from some point in Latimer county to some point west of Chickasha, in this'state, daring the month of January, 1928; defendant never learned his name or where he was going, nor where or from whom he had bought these animals.

The defendant contends, first, that this evidence was insufficient to justify the jury in- returning a verdict against him.

As is usual in larceny cases, the evidence is largely circumstantial and conflicting. This court has uniformly held that, where the conviction rests largely upon circumstantial evidence, and where circumstances are proven from which the reasonable and logical inference of guilt clearly arises, and which exclude any reasonable hypothesis except the guilt of the accused,, although the evidence is conflicting, this court will not disturb the verdict for insufficiency of the evidence. Halbert v. State, 35 Okla. Cr. 329, 250 Pac. 436.

The facts and circumstances proven by the state in the case at bar point unerringly to the guilt of the defendant and are sufficient to support the verdict of the jury.

Defendant next contends that the trial court erred in permitting the state to show possession of other stolen property by the defendant contemporaneous with the possession of the animal alleged to have been stolen in this instance. Evidence of other offenses is competent to prove the specific offense charged when it tends to establish a systematic scheme or plan embracing the commission of two or more offenses so related to each other that proof of one tends to establish the other, or to connect the defendant with the commission of the offense charged. State v. Rule, 11 Okla. Cr. 237, 144 Pac. 807; Jackson v. State, 42 Okla. Cr. 86, 274 Pac. 696.

In Oldham v. State, 43 Okla. Cr. 314, 278 Pac. 663, this court said:

“The contemporaneous possession of recently stolen goods may be admitted in evidence for the purpose of throwing light upon the particular larceny for which the defendant was then upon trial. * * *
“In a prosecution for larceny, where the defendant’s possession of property, charged to have been stolen, is attempted to be accounted for, it is competent to show the defendant’s contemporaneous possession of other stolen property.”

In the case at bar the defendant took the stand as a witness in his own behalf and attempted to' explain his possession of the stolen property.

Under the authorities cited it was not error for the trial court to' admit proof of the contemporaneous possession by the defendant of other stolen property.

The evidence being sufficient to' support the verdict of the jury and the errors of law complained of being without substantial merit, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    W. T. (TOM) CASEY v. STATE.
    No. A-7517.
    Opinion Filed Oct. 25, 1930.
    (292 Pac. 871.)

      Joe S. Eaton, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

Tbe plaintiff in error, hereinafter called the defendant, was convicted of rape in the second degree, and his punishment fixed at 16 months in the state penitentiary. Prom the judgment, the defendant has appealed.

On the 15th day of April, 1928, the defendant was a resident of the city of Henryetta, Okmulgee county, Okla.; the prosecuting witness, Gladys Roberts, also lived in Henryetta; on the afternoon of the 15th of April, 1928, the prosecutrix, with some other children, went to the ball park in the southeast part of the city, and had been there a short while when the defendant came along and went on down to the creek a short distance from where the prosecutrix and the other children had been playing. The record shows the children left the prosecutrix and went inside the inclosure of the ball park where some boys were playing football; the prosecutrix went down towards the creek near where the defendant was. The prosecutrix claims the defendant motioned to her to come to him, which she did. She further stated the defendant gave her 75 cents and they lay down on the ground and defendant had intercourse with her.

The testimony on behalf of the state shows that Mr. and Mrs. Jack Simpson, who were coming down the creek where Mr. Simpson had set out some fish hooks, walked np to within something like 10 or 20 feet of the defendant and prosecutrix, and the prosecutrix got up and ran, the defendant raised up and backed up against a tree. Mrs. Simpson, in response to questions, stated they were lying down and when we came up they jumped up and Mr. Casey took hold of his bib overalls and backed up against a tree; before he took hold of his overalls they were down.

The prosecuting witness testified this was the second time the defendant had had intercourse with her. The defendant read the testimony of the prosecutrix taken in the preliminary trial for the purpose of trying to contradict her, and to show that her statements in the prelimi-' nary trial were different to her statements in the trial.

Jack Simpson testified he did not see the parties in the act of sexual intercourse at the time he and his wife approached where they were lying on the ground; further, in response to the following question, he gave the following answer: “Q. 'Seen her in company with this defendant? A. Seen her bootching men for money.”

The prosecutrix testified positively that the defendant had cohabited with her on the date alleged in the information. The defendant denies that on the date alleged, or any other date, he had intercourse with the prose-cutrix, but admits the prosecutrix was there with him when Mr. and Mrs. Simpson came up to where they were. Defendant says the prosecutrix came to where he was and lay down on the ground near him.

The defendant called several witnesses who testified to his previous good character for being a law-abiding, moral, chaste man. The record discloses the reputation of the defendant as a law-abiding citizen had never been called into question prior to this charge. This is, in substance, the testimony introduced.

The defendant has assigned nine errors alleged to have been committed by the trial court. The defendant in his brief states he has decided to discuss only assignment 3, which is as follows: “For that the verdict is not sustained by sufficient evidence.” The defendant earnestly contends that the evidence offered and submitted at the trial of the case is wholly insufficient to' support the verdict and judgment and sentence of the court based thereon, and states that to his mind the evidence is sufficiently and squarely impeached by the evidence of the state witnesses Mr. and Mrs. Jack Simpson. The substance of the testimony of Mr. and Mrs. Simpson has been referred to in this opinion, and the argument presented by the defendant has been carefully read and the authorities cited in support of his contention, and theory of the case has been given earnest and careful study.

The defendant cites Douglas v. State, 19 Okla. Or. 257, 199 Pac. 927, 931, as supporting his contention, in which opinion the court said:

“Under the laws of this state a conviction for rape may be had upon the uncorroborated evidence of the prose-cutrix, however, where the testimony of the prosecutrix is contradictory, and her reputation for truth and veracity is impeached, and the defendant testifies and denies specifically the testimony of the prosecutrix, and his testimony is corroborated, the testimony of the prosecutrix, standing alone, is not sufficient to warrant a conviction.”

An examination of the Douglas Case shows that, in the taking of the testimony, the testimony of the prosecu-trix was contradicted, and it was shown by the testimony that the reputation of the prosecutrix for truth and veracity was bad, and the defendant, as in this case, denied specifically the testimony of the prosecutrix. Such are not the facts in this case. There is no testimony in the record impeaching the prosecutrix, nor is there any testimony showing that her reputation for truth and veracity is bad. The prosecuting witness was cross-examined as to1 certain testimony given by her in the preliminary trial, which tended to show a contradiction upon some of the facts stated by her in the trial of the case, but in the preliminary trial, as well as in the trial of this case, she stated positively that the defendant did have sexual intercourse with her. The testimony in this case is conflicting; that upon the part of the state shows that the prosecutrix was under the age of 16 years at the time of the alleged offense, and that the defendant had intercourse with the prosecutrix. The defendant was seen by Mr. and Mrs. Jack Simpson lying down on the ground with the prosecutrix; they did not see any act of intercourse going on. The defendant denies that he had intercourse with the prosecutrix, but admits she was there where Mr. and Mrs. Simpson saw him. He is a man of family and mature years.

There is a conflict in the testimony. If the jury believed the testimony of the state, it was warranted in returning a verdict of guilty against the defendant. On the other hand, if they believed the testimony of the defendant, it was warranted in returning a verdict of not guilty.

In Maggard v. State, 9 Okla. Cr. 236, 131 Pac. 549, in the first paragraph of the syllabus, this court said:

“It is the duty of the jury to- settle all conflicts in the testimony, and this court will not disturb a verdict where it is sustained by any testimony which reasonably tends to establish the guilt of the defendant, unless it appears from the record that the jury were influenced by improper motives in accepting the testimony of the státe and rejecting the testimony of the defendant.”

In Nowlin v. State, 7 Okla. Cr. 27, 115 Pac. 625, 121 Pac. 791, in the first paragraph of the syllabus, the court said:

“The verdict of a jury will not be set aside for want of evidence to sustain it when there is any evidence in the record from which the jury could legitimately draw the conclusion of the defendant’s guilt.”

In Calvert v. State, 10 Okla. Cr. 185, 135 Pac. 737, in the first paragraph of the syllabus, the court said:

“(a) Under the law in Oklahoma controverted questions of fact, involving the guilt or innocence of a person on trial in a court of competent jurisdiction, before a jury, are to be settled exclusively by such jury.
“(b) When an accused is on trial and there is a direct conflict in the testimony between witnesses for the state and witnesses for such accused on the material issues, this court, in the absence of errors of law, will not on appeal reverse a conviction.”

In Davis v. State, 10 Okla. Cr. 169, 135 Pac. 438, this; court, in the third paragraph of the syllabus, held:

“When issues of fact are determined by the jury upon evidence which is sufficient, even though it may be capable of diverse and opposing inferences, this court has no more right than the trial court to substitute its own judgment in the place of that of the jury, or to usurp its legitimate functions.”

The only question that has been presented and argued by the defendant is the sufficiency of the evidence to sustain the conviction. We hold that the evidence is sufficient to' sustain the conviction. Finding no errors in the record sufficient to warrant a reversal, the judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


author: PER CURIAM.

text:
    Ex parte NATHAN OWENS.
    No. A-8020.
    Opinion Filed Oct. 27, 1930.
    (292 Pac. 1119.)
    King & Crawford, for petitioner.
    J. Berry King, Atty. Gen., for respondent.
   PER CURIAM.

This is an original proceeding in habeas corpus to be let to bail. Petitioner stands charged in the district court of Pontotoc county with the crime of robbery with firearms. Bail was denied by the committing magistrate and by the district judge of Pontotoc county.

Upon an examination of a transcript of the testimony tallen at the preliminary trial, we are of the opinion that the petitioner is entitled tO' bail. Bail is fixed in the sum of $10,000, conditioned as provided by law, to be approved by the court clerk of Pontotoc county.


author: EDWARDS, P. J.

text:
    M. M. ARMS v. STATE.
    No. A-7511.
    Opinion Filed Aug. 29, 1930.
    Rehearing Denied Oct. 27, 1930.
    (292 Pac. 76.)

      Leahy, Macdonald, Maxey & Files, for plaintiff in error.

      J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff: in error, hereinafter called defendant, was convicted of manslaughter in the first degree in the district court of Tulsa county and his punishment fixed at 25 years in the state penitentiary.

Briefly stated, the record discloses that prior to the homicide a state of ill will had arisen on the part of defendant against deceased Winans. This ill will arose on account of attention to or association hy Winans with the wife of defendant, who was a full-blood Osage Indian who had previously been married to< an Indian, one Peter Big Horse, by which prior marriage there were three children. On several occasions, the deceased was in the company of the wife of defendant, generally at her home in the absence of her husband, and furnished her whisky with which she became intoxicated. Prior to the homicide, defendant on two occasions had made a personal assault upon Winans. At the time of the homicide, Winans was at his place of business, a garage in the city of Tulsa, sitting on a small box inside the door, talking to some friends. He was unarmed and was leaning forward. One of the other men present was sitting in a chair, leaning against the face of the door. Defendant came to the door, put his pistol just back of the man leaning against the door, and without saying a word shot Winans three times in the head, inflicting wounds from which he died in a few minutes. The defense interposed is temporary insanity and self-defense. In support of the plea of temporary insanity defendant testified at length of his marriage and the circumstances of the deceased’s relation with his wife and of his prior difficulties with deceased, of the mental effect upon him of this domestic trouble, and that at the time he shot deceased, deceased made a movement as if to pull a gun and he fired in self-defense. Several witnesses for defendant testified to some extent corroborating his claim of temporary insanity.

The case was closely tried and is well briefed. Numerous assignments of error are presented. It is first argued that the court committed prejudicial error in permitting the county attorney to' amend the information before the jury was called by changing the name of the deceased from Bernard von Winans to Boyd B. Winans. This was not error. Our statute permitting the amendment of informations is extremely liberal. Section 2512, Comp. St. 1921. It is, of course, not permissible to allow an amendment to change the nature of the offense or to charge a different offense. Otherwise an information may be amended in matters of either form or substance when it can be done without prejudice to' the rights of the accused. The identity of the person killed was not in dispute. It is not claimed that Boyd B. Winans was a different person from Bernard von Winans. For illustrative cases amending as to names and dates, see People v. White, 47 Cal. App. 400, 190 Pac. 821; Carroll v. State, 24 Okla. Cr. 26, 215 Pac. 797; Elkins v. State, 29 Okla. Cr. 175, 233 Pac. 491; Leyerle v. State, 31 Okla. Cr. 179, 237 Pac. 871; Smith v. State, 34 Okla. Cr. 318, 246 Pac. 883; Weathers v. State, 35 Okla. Cr. 292, 250 Pac. 805; Orum v. State, 45 Okla. Cr. 193, 282 Pac. 889.

Several assignments are directed to the admission of testimony for the state. The items complained of are varied. In one instance it is in reference to the financial responsibility of deceased; this appears to be immaterial, though possibly it was offered to rebut the inference that deceased pursued the wife of defendant because of her having resources as a member of the Osage Tribe of Indians. In another instance it is evidence that tended to show the wife of defendant probably made overtures to deceased. In another, it is to show that at the time of the homicide the pistol owned by the deceased was in his room. It is not necessary to enumerate all these specific items. Some of them are on the border line of admissibility, but none of them could have been materially prejudicial. They fall within the harmless error provisions of our statute. Section 2822, Comp. St. 1921.

'Several assignments are directed to the failure of the court to sustain objections to cross-examination of defendant’s witnesses. In the main these objections are to questions propounded witnesses who1 had testified to circumstances tending to prove defendant irrational or insane at a time just preceding the homicide. The state questioned these witnesses rather closely, touching the actions, conduct, and demeanor of defendant. This cross-examination extended also1 to an expert witness for defendant. The court, properly, was fairly liberal to both the state and the defendant. While the defense of temporary insanity is viewed with some distrust by the laity, yet the law is that if insanity to the degree fixed by the law exists, it is a complete defense to1 a charge of crime. One who pleads insanity has the right to present the applicable evidence without undue restriction, but since the evidence of insanity often is largely a matter of opinion, generally depending on the testimony of witnesses related to' or closely associated with the person accused, both the state and the defendant should be permitted to test the knowledge and good faith of the witnesses by a liberal cross-examination. We have examined with care the various items of the record to which these assignments relate and perceive nothing materially erroneous.

A group of assignments are based on the refusal of the court to' give requested instructions defining the law applicable to the defense of insanity. These requests are in substance that where the defense of insanity is interposed to a charge of crime, the test of criminal responsibility for committing an act which is a crime under the law is the mental capacity of the accused to distinguish between right and wrong, as applied to the particular act, and. to understand the nature and consequence of such act, or, “knowing its wrongfulness, the defendant is not criminally responsible if by reason of insanity he did not have the will and mental power to refrain from committing such act.” This is the doctrine of what is sometimes designated as irresistible or uncontrollable impulse. That is, that one may be so moved by insane impulse that he is impelled to do what he knows to be wrong and to be a crime, and which will subject him to the penalty of the law and yet be relieved from criminal responsibility. This doctrine finds some support in the many reported cases where insanity has been interposed as a defense to crime. In the case of Adair v. State, 6 Okla. Cr. 284, 118 Pac. 416, 44 L. R. A. (N. S.) 119, in the latter part of syllabus 2, after stating that the test of criminal responsibility for committing a crime is the mental capacity to distinguish between right and wrong, etc., it is further said: “* * * Or knowing its wrongfulness the defendant is not criminally responsible, if by reason of insanity he did not have the will and mental power to refrain from committing such act.” This doctrine appears to be followed also' in the case of Litchfield v. State, 8 Okla. Cr. 164, 126 Pac. 707, 45 L. R. A. (N. S.) 153. It does not appear to have been approved in any later case, but in subsequent cases the rule is announced without qualification that the true test of criminal responsibility is whether defendant had sufficient reason to know right from wrong as applied to the particular act and to understand the nature and consequences of such act. Alberty v. State, 10 Okla. Cr. 616, 140 Pac. 1025, 52 L. R. A. (N. S.) 248; Smith v. State, 12 Okla. Cr. 307, 155 Pac. 699; Roe v. State, 17 Okla. Cr. 587, 191 Pac. 1048, 1052; McNeill v. State, 18 Okla. Cr. 1, 192 Pac. 256; Turner v. State, 43 Okla. Cr. 380, 279 Pac. 525; Tittle v. State, 44 Okla. Cr. 287, 280 Pac. 865. The Roe Case, supra, in effect overrules that part of the Adair Case which recognizes irresistible impulse as a defense to crime, saying’:

“The statute of this state does not recognize the doctrine that one may be so possessed with an uncontrollable impulse as to compel him to do what he knows to- be wrong and a crime, and yet be relieved from all criminal responsibility. A condition might be conceived of an uncontrollable insane impulse sufficient to- relieve one of criminal responsibility under out statute; but this would only arise when the diseased condition of the accused’s mind was such as to destroy the power of the accused to comprehend the nature and consequences of the particular act, and to- know that it was wrong at the time of its commission.”

In the Tittle Case, supra, in syllabus 3, this court expressly overrules this doctrine; it is held:

“That part of paragraph 2 of the syllabus in the case of Adair v. State, 6 Okla. Cr. 284, 118 Pac. 416, 44 L. R. A. (N. S.) 119, which reads as follows: <* * * or knowing its wrongfulness, the defendant is not criminally responsible, if by reason of insanity he did not have the will and mental power to- refrain from committing such act,’ is expressly overruled, as not being part of the true test of insanity.”

The court did not err in refusing to- instruct the doctrine of irresistible or uncontrollable impulse. In other particulars, the instructions fairly state the law and the contention is untenable.

It is also urged that there was misconduct of the juror House. This misconduct was first called to the attention of the court in the motion for a new trial and is, in substance, that in the course of the trial, when Dr. Adams testified that he considered defendant sane the juror smiled and winked at Tom Wallace, assistant county-attorney, and the belief that this juror exercised improper influence on the other members of the panel. It is not made to appear this was unknown to defendant’s counsel before the conclusion of the trial; to the contrary, the inference is that it was known to counsel before the conclusion of the trial. Where there is misconduct of a juror which comes to the knowledge of a counsel during a trial, they should make such facts known to' the court, and where a defendant withholds such knowledge until after verdict, he is deemed to have waived it unless such misconduct amounts to fundamental error. Tinney v. State, 19 Okla. Cr. 126, 201 Pac. 819.

Other assignments are presented in the brief which are not discussed. They have not been overlooked. Upon the entire record, we are convinced that defendant had a fair trial, and that the evidence amply sustains the verdict and judgment, and that the punishment assessed is not excessive.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    R. A. HATFIELD v. STATE.
    No. A-7641.
    Opinion Filed Nov. 8, 1930.
    (292 Pac. 1058.)

      Pryor & Stokes, Hugh Sandlin, and Hamilton & Hamilton, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Hughes county, of the crime of grand larceny, and sentenced to serve a term of two years in the penitentiary at McAlester. From which judgment and sentence the defendant, after perfecting the record, appealed to this court.

The substance of the state’s evidence is as follows: Julia Scott stated she knew the defendant, Russ Hatfield; she lost a calf on or about February 26, 1929; she did not know whether the hide found in the field of the defendant was the hide from her calf, as she did not see the hide.

Mose 'Scott testified bis stepmother, Julia Scott, lost a calf in February — “I found a hide in the edge of the defendant’s field on Wednesday morning; the calf had been missing since Monday night; the dogs had been dragging the hide around; Dobie Grant went with me to1 where the hide was.” Willmott Scott testified he was with Mose when he found the hide, and he saw where the calf had been butchered. On cross-examination witness stated the dogs had been dragging the hide around, and that the hide -belonged to the calf Julia Scott missed.

Other witnesses testified to seeing the hide, and to the furrows haying been plowed, looted lite to coyer up the hide, and that the dogs had been dragging the hide around. Manuel Lavalley, who was an officer, testified he searched the defendant’s house, but did not find any fresh meat in the house; that the hide was found a quarter of a mile from the defendant’s home; the defendant did not make any statement to him.

Buddie Grant testified he knew the defendant and Julia Scott; he saw the hide after it had been found and the defendant asked him not to say anything about them cooking meat down there. Dobie Grant testified he was jointly charged with the defendant Hatfield with the larceny of the calf; at the time this caif was taken he lived on the Hatfield farm; that he and Hatfield stole the calf together, and he sold a dollar’s worth of the meat; the defendant Hatfield shot the calf with a target rifle, and cut its throat; he was some distance on the hill, and it was dark. The witness admitted he had been convicted of larceny and had served a term in the penitentiary.

The defendant denies he had anything to do with the taking of the calf, or killing it, or that he had any knowledge that it had been stolen; or that he plowed the furrows in the field for the purpose of covering np the hide it was claimed by the state’s witnesses was found. The defendant stated he was in Holdenville the day the calf is alleged to have been stolen, and that he had nothing to do with the tailing of the calf and did not get Dobie Grant to sell any of the meat; none of the meat was cooked at his house; he had been advised that Jim Larney paid Dobie Grant to testify this defendant was implicated.

Hayes Wright testified he did not give Dobie Grant permission to use his car on the 26th day of February, 1929, and when the car was taken by Dobie Grant the same was reported to the officers. This is, in substance, the testimony.

The defendant has assigned six errors alleged to have been committed by the court in the trial of the case. The first error argued by the defendant is as follows: “That the evidence on the part of the state wholly and totally fails to prove venue, and for said reason is insufficient to support a conviction.”

If the record bore out the contention of the defendant, this alone would be sufficient to reverse this case, but unfortunately for the defendant the record does not support this contention. In the examination of the witness Julia Scott, the alleged owner of the calf, she was asked if she knew the defendant, Russ Hatfield, and Dobie Grant, and was asked the following questions:

“Q. How far do you live from them? A. I don’t know just how far, but I live close to Hatfield.
Q. That was in Hughes county, Oklahoma? A. Yes, sir.”

This court has often held that venue may be established by circumstances. The testimony of the witness who claims to have owned the calf that was stolen was that she lived near Mr. Hatfield, and the hide they claim to have found was in the defendant’s field, and that was in Hughes county, Okla. This contention of the defendant, we hold, is without merit.

It is next urged by the defendant that the conviction than that of a self-confessed codefendant, which is entirely uncorroborated.

Section 2701, O. O. S. 1921, is as follows:

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

Beginning with the case of Kirk v. State, 10 Okla. Cr. 281, 135 Pac. 1156, up to the present time, it has been the universal holding of this court that a conviction cannot be had upon the testimony of an accomplice unless there is other testimony tending to connect the defendant with the commission of the offense, and that the corroborating testimony must go further than to merely show the commission of the offense or circumstances thereof. In this case it is shown that Dobie Grant was jointly charged with the defendant, but that the defendant was put on trial first. The question then arises, does the testimony of the state show that Dobie Grant was an accomplice of the defendant, and, if so, is the testimony sufficient to show a corroboration of the codefendant Grant’s testimony, or does it merely show that an offense has been committed. The testimony shows that an animal of some kind was butchered in the field of the defendant and a fresh hide found in a place that had been plowed by the defendant, the state’s witnesses identifying the bide as being the same color of tbe calf that had been taken from Jnlia Scott, who says it was without her knowledge or consent. One other witness testified to seeing some fresh meat at the defendant’s house about the time the calf was missed. The officer who searched the defendant’s house after the calf was missing testified he did not find any fresh meat there. The defendant in this case may not be guilty of the crime charged against him, and may be a victim of unfortunate circumstances, yet the testimony of the state and circumstances surrounding it tends to show that the defendant was connected with the larceny of this calf. It was butchered in his field and the facts and circumstances corroborate the testimony of Dobie Grant that the defendant butchered the calf.

The jury heard the testimony of the witnesses and had an opportunity to judge of their demeanor while on the stand, and after considering the testimony found the defendant guilty. This court has repeatedly held that, where there is any competent testimony to go to the jury upon which it could reasonably find the defendant guilty, though the testimony is conflicting, it will not disturb the verdict. The circumstances surrounding the taking of this calf and the evidence as disclosed by the record are sufficient to sustain the verdict.

It is next urged by the defendant that he was deprived of a fair and impartial trial, for the reason he requested that the witnesses be placed under rule, and the court denied that request. The exclusion of the witnesses under the rule from the courtroom in the course of the trial is not an absolute right, but rests in the sound discretion of the trial judge. Denying the rule to the defendant is not reversible error unless the record discloses an abuse of the court’s discretion. Harrell v. State, 36 Okla. Cr. 225, 253 Pac. 516; Barnett v. State, 41 Okla. Cr. 153, 271 Pac. 956.

After a careful study of the record in this case, we bold that the evidence is sufficient to sustain the judgment; that the defendant was accorded a fair and impartial trial; the court correctly advised'the jury as to the law applicable to the facts in this case. No error appearing in the record of sufficient merit ,to warrant a reversal, the judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    Ex parte EARNEST LAWSON.
    No. A-8025.
    Opinion Filed Nov. 8, 1930.
    (292 Pac. 1060.)
    Robert N. Allen, for petitioner.
    The Attorney General, for the State.-
   CHAPPELL, J.

Earnest Lawson filed his petition in this court for writ of habeas corpus1, alleging that he was illegally restrained of his liberty by Charles Maxwell, sheriff of Atoka county, and confined in the county jail of said county.

Petitioner further alleges that he is charged with the offense of murder committed on the 3d day of August, 1930, upon the person and body of one Eastman Perry; that he had a preliminary examination before an examining magistrate and was bound over to the district court without bail; and that his application for bail has been denied by the district court of Atoka county.

Petitioner has attached to< his petition a transcript of the evidence taken at his preliminary hearing. This proof shows an unprovoked murder. The defendant did not take the witness stand and made no showing of justification.

Where the proof is evident and the presumption great, and the defendant makes no showing of justification, he is not entitled to bail. Writ denied.

EDWARDS, P. J., and DAVENPORT, J., concur.


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    DAN BRAY v. STATE.
    No. A-7504.
    Opinion Filed Nov. 8, 1930.
    (292 Pac. 1061.)
    H. W. Morgan, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The. plaintiff in error was convicted in tbe district court of Caddo county on a charge of manslaughter in the first degree, and was sentenced to serve a term of 10 years in the state penitentiary.

The judgment of conviction was rendered in March, 1929, and the appeal was lodged in this court in August, 1929. No briefs in support of the appeal have been filed, and no appearance for oral argument was made at the time the case was submitted.

Where an appeal from a conviction for a felony is prosecuted to this court and no briefs in support of it are filed nor oral argument made, this court will not search the record to discover some error upon which to predicate a reversal, but will examine the record for jurisdictional or fundamental errors and to ascertain if the the evidence reasonably supports the verdict and judgment. In this case, we have examined the record with care, and have read closely the testimony. We find no jurisdictional or fundamental errors, and find abundant evidence to sustain the verdict and judgment.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


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    E. W. WHISENHUNT v. STATE.
    No. A-7685.
    Opinion Filed Nov. 8, 1930.
    (292 Pac. 1119.)
    I. L. Strange, for plaintiff in error.

      J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Choctaw county on a charge of having the unlawful possession of a still, and was sentenced to pay a fine of $150 and to be confined in the county jail for a period of 30 days. The case was tried in October, 1929, and the appeal was lodged in this court in December, 1929.

Where an appeal is prosecuted to this court and no brief in support of the petition in error is submitted and no appearance for oral argument made, this court will examine the record for jurisdictional errors and will read the evidence to ascertain if it reasonably supports the judgment, and, if no fundamental error is apparent and the evidence is sufficient, the case will be affirmed.

We have examined the. record and find that the evidence fully sustains the verdict and judgment. No jurisdictional error is apparent.

The case is affirmed.


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    LEE EICHOR v. STATE.
    No. A-7266.
    Opinion Filed Oct. 18, 1930.
    Rehearing Denied Nov. 8, 1930.
    (292 Pac. 1118.)
    O. P. Renegar and E. C. Patton, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Canadian county on a charge of having unlawful possession of intoxicating liquor, and his punishment fixed at a fine $100 and confinement in the county jail for a period of 30 days.

An appeal was filed in this court on the 17th day of January, 1929, and the case submitted on the record on November 17, 1929. No briefs have been filed on behalf of plaintiff in error, and no appearance was made for oral argument.

Upon a careful examination of the record, we find no errors depriving the appellant of any substantial rights.

The evidence being sufficient to support the verdict of the jury, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


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    Ex parte KINDNESS GARRETT.
    No. A-8021.
    Opinion Filed Nov. 8, 1930.
    (292 Pac. 1118.)
    Williams & Martin, E. B. Arnold, and W. L. Chase, for petitioner.
    J. Berry King, Atty. Gen., and W. A. Corley, Co. Atty., of Stilwell, for respondent.
   PER CURIAM.

This is an original proceeding by habeas corpus to be let to bail. Petitioner alleges that she is illegally restrained by the sheriff of Adair county; that she is held upon a charge of murder alleged to have been committed in said county September 25, 1930; that bail has been denied by the committing magistrate and by the district judge of said county; that the proof is not evident nor the presumption great.

An examination of the transcript of the evidence discloses that at the time charged petitioner shot and hilled one Mack Garrett, former husband of petitioner. The killing is admitted. No purpose would be served in reciting the testimony further than to say that, upon a consideration of the entire testimony, the petitioner is not entitled to be admitted to bail.

The petition is therefore denied.


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    JACK GORDON v. STATE.
    No. A-7622.
    Opinion Filed Nov. 8, 1930.
    (292 Pac. 1041.)
    Jno. Y. Roberts, for plaintiff in error.
    J. Berry King, Atty. Gen., and Ed Crossland, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of rape in the first degree, and sentenced to serve 15 years in the state penitentiary. Motion for new trial was filed, considered, overruled, and exceptions saved, and the defendant by petition in error, with case-made attached, has appealed to this court.

An abstract of the testimony is as follows: That on Thursday night, May 2, 1929, the defendant attended a dance at the Yeoman Hall. The prosecuting witness, Jewell Spiker, was also attending the dance.

“The defendant was not acquainted with me, but asked me to dance with him and I accepted his invitation, and after the dance was over the defendant took me and my niece, Ruby Abies, to my home. When we reached my home my niece got out and the defendant took me for a ride and tried to kiss me, and I refused, and in a short while he took me home. The next afternoon about 5:30 he called up and said he wanted to see if I would go out for a drive. I talked with him, and he said he would have to work until 9 o’clock and I could meet him down town. I told him Ruby and I was coming to town window shopping, and we came down and stopped in front of Kliens, on the north side of the square. I am 27 years of age. The defendant told me he was a piano man, teaching piano for a conservatory from Dallas, Tex. Ruby and I met him the following evening, about 9 o’clock and got in the car with him. We went west on the pavement about a mile, then turned south and east to the pavement and came back, and he took us to Corry’s and got us a drink. We afterwards drove back to my mother’s house and Ruby got out. The defendant asked me to' take a ride with him, and I protested, saying it was too late. He started his car, and after driving about the city a short while drove three or four miles north of the city and turned off the road a short distance, then stopped his car and turned out the inside lights and took me in his arms and tried to kiss me. He put his tongue in my mouth and I bit it. He then turned out all the lights and tried to straddle me. He held my hands and got me down in the seat and took my bloomers off, and I slid from under him and said I was going back to town, and he made me get back in the car, and we drove another mile or two and he stopped again, and we bad another struggle. I got away from him and got out of the car, and be scuffled with me until I was exhausted and then succeeded in having sexual intercourse with me by force. All the time from the time he first stopped the car I was fighting, kicking, screaming, and crying, and begging him to take me home, and pleading with him to let me alone. After he had accomplished his purpose he drove me home and put me out. I at once told my mother what had occurred, and the next morning she called Dr. Henson to attend me. I was in bed three or four days, and later Dr. Mahoney was called.”

Ella Spiker, the mother of the prosecuting witness, testified:

“That on the night of the alleged trouble Ruby Abies came in just after midnight and went upstairs to> bed, and I supposed Jewell would be in soon and dropped off to sleep. After a while I woke up and went to see if Jewell had come in, and found that she had not, and I stayed awake until she come. When she did come home she told me Gordon had assaulted and ruined her. I said, ‘For God’s sake what is the matter?’ and she said she was smarting and hurting until she could not stand it, and I told her I would get some warm water and bathe her; I found she was bruised on both legs and sides, and her neck; her limbs were black and blue. The next morning I called Dr. Henson. She remained in bed until the following Wednesday, about five days.”

Dr. Mahoney also examined her at his office. Dr. Mahoney testified he was called to see the prosecuting witness four or five days after the alleged assault and found bruises on her body and legs. He could not tell definitely whether she had had intercourse. “I could not state positively as to the indication as to whether the hymen had been recently ruptured.”

Dr. Henson also testified to bruises and scratches on the body and legs of the prosecutrix. He could not definitely tell whether the prosecutrix had had intercourse. The testimony of the prosecutrix is positive tLat the defendant did have intercourse with her and penetrated her body.

There is considerable testimony in the record as to the nervous condition of the prosecutrix. The defendant in his testimony states: He met the prosecutrix at a dance and. took her and her niece Ruby for a ride, and that Ruby stopped at Jewell’s home, then he and Jewell went for a drive, and while on the ride the defendant claims the prosecutrix kissed him; that Friday afternoon he called the prosecutrix and asked her to meet him down town, and she agreed to' do so; that she and her niece came to town about 9 o’clock in the evening and they got in the car and drove for a while, and then drove to the home of the prosecutrix and her niece got out.

“I then asked the prosecutrix to take a ride, and she objected, saying it was too late. I told her I would bring her back by 12 o’clock and started my car. We drove around the city for a while and then north about three or four miles, where I left the pavement and stopped my car about 25 feet from the highway. I turned out the inside lights and asked her to kiss me. She at first refused, but then kissed me. We had a scuffle, and Jewell got out of the car and said she was going to walk back to town. I got out and told her to get back in the car and I would take her home. I then asked her to kiss me, and she gave me a French kiss before getting back in the car. The defendant explained a French kiss was performed by putting their tongues in each other’s mouth. The prosecu-trix then got back in the car, and I did not say anything to her. Instead of driving straight back to town, I drove east a mile or two and stopped my car and asked her if she did not like me well enough to have pleasure with me. She got out of the car in the same manner as she had done before. I got out and she gave me three French kisses and during the kissing she fell down an embank-rnent and bruised berself. She started to' walk back to town, and I put lier in the car and brought her home. She was grouchy, but promised to meet me on the morrow. I told her I would get groceries for her mother. I left town and went to Guthrie, where I was arrested on Tuesday.”

Several witnesses were called by the defendant who testified as to his previous good character.

The defendant has assigned four errors alleged to have been committed by the court in the trial of his case. A careful examination of the errors assigned by the defendant shows that they are all embraced in the first assignment, which is that the court erred in overruling the plaintiff in error’s motion for a new trial.

The defendant argues that the testimony in this case is insufficient to sustain the judgment. The testimony in this case conclusively shows that the defendant first met the prosecuting witness at the dance and asked permission to take her home. There is no conflict in the evidence as to what took place from the time defendant met the prose-cutrix at the dance until the niece, Ruby Abies, left the parties at the home of the prosecutrix the night of the alleged offense. Prom the time the niece left the car there is a sharp conflict in the evidence as to what took place. The defendant stated he kissed the prosecuting witness ind she got out of the car and started to walk home; Kl persuaded her to get back in the car and they drove a short distance and stopped, where he insists that the prosecuting witness gave him some French kisses, and fell down an embankment and bruised herself. The prose-cutrix denies she voluntarily kissed the defendant, and states that the defendant by force, she screaming, fighting, and complaining all the time, had intercourse with her, against her will. This is the only conflict in the testimony. The prosecutrix tells a straightforward story, and is not contradicted in any particular by the defendant, or any other witness, except as to the act of cohabitation. On this point the jury seems to have believed the evidence of the prosecutrix as taken in connection with other testimony, and by its verdict found that the testimony was sufficient beyond a reasonable doubt to convict the defendant.

After a careful reading of the evidence in this case, we hold that the testimony is sufficient to warrant the jury in finding a verdict of guilty, and this court will, not disturb that verdict. The defendant was accorded a fair and impartial trial; the court correctly advised the jury as to the law applicable to' the facts in the case.

Finding no errors in the record, the judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


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    JIM SUMMERS v. STATE.
    No. A-7980.
    Opinion Filed Nov. 8, 1930.
    (292 Pac. 1042.)
    James A Embry, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Lincoln county of selling whisky to a minor, and his punishment fixed at confinement in the county jail for a period of 80 days and a fine of $50.

From the judgment of conviction the defendant appealed to this court. The appeal was perfected on September 17, 1930, by filing in this court his petition in error with case-made attached. Since the appeal was taken and before final submission of the cause, said defendant departed this life as shown by statement of the attorney of record for defendant. In a criminal prosecution, the purpose of the proceeding being to punish the accused, the action must necessarily abate upon his death, and where it is made to' appear that the plaintiff in error has died pending the determination of his appeal, the cause will be abated. It is therefore ordered that the said cause do abate, with directions to the trial court to enter its appropriate order to that effect.

DAVENPORT and CHAPPELL, JJ., concur.


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    MINNIE WALLIS v. STATE.
    No. A-7203.
    Opinion Filed Nov. 8, 1930.
    (292 Pac. 1056.)

      Morris & Tant, Bryan Mitchell, and Darnell & La-Rue, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Washita county of the robbery of the Bessie State Bank with firearms, and her punishment fixed by the jury at imprisonment in the state penitentiary for five years.

The evidence of the state was that the State Bank of Bessie in Washita county, was robbed in the daytime with force of arms, on or about the 24th day of January, 1928, and that the actual robbery of the bank was committed by Prank Simpson and Fletcher Rickard. The evidence upon which the state relied to convict this defendant was circumstantial, and was to the effect that Simpson and Rickard had lived in the home of defendant’s husband for several weeks prior to the robbery; that on the day before the robbery Simpson and Rickard borrowed a Jewett car belonging to the defendant’s husband, together with some quilts, and took, without the consent of defendant’s husband, a tarpaulin and a revolver, for a trip to Pampa, Tex., to get the wife of Rickard; that instead of going to Pampa, Tex., they went that night to the home of John Sims, a relative, and on the next day, with Eldred Morrison driving the car, they went into the town of Bessie and robbed tbe bank; that tbe cashier of tbe bank, Ben Kiebn, was killed during* tbe robbery and Fletcher Rick-ard wounded, from which wounds he died on the same day; that Simpson made his ecsape in the Jewett car of defendant’s husband, and went back the night following the robbery to the home of John Sims, and was there taken in John Sims’ car to a point about 10 miles east of Oklahoma City, near defendant’s home, where he was let out of the car; that on that night he appeared at the home of defendant’s husband; that when he came in the house, defendant threw her arms around his neck and kissed him; that defendant and Simpson went into a bedroom and spent some 30 minutes talking; that when they came out of the bedroom defendant arranged for Newt Smith, a nephew of defendant, to sell Simpson his car for $50; and that Simpson laid the. $50 on the table and got in the car and left the country. There is a dispute among the state’s witnesses as to> who1 received this money, one of the witnesses saying it went to the defendant, while others said it went to Newt Smith’s mother; that the officers were watching the Wallis home; and that defendant had promised to advise them if Simpson appeared, but failed to do so.

One witness testified that at the time the money was divided by Simpson, he said that he was setting aside $200 for defendant’s husband for the use of the car. Another witness testified that defendant told him to leave the country and not plead guilty or he would get them all in trouble. Both of these witnesses were accomplices of Simpson, one driving the car when the robbery was effected and the other driving the car that took Simpson out of the country.

The defendant, testifying in her own behalf, denied that she knew anything about the robbery or received any part of the proceeds of the same, or that Simpson ever came back to their home after the robbery. Defendant was corroborated as to' the material facts in her defense by other witnesses who were disinterested.

Defendant contends first that the evidence is insufficient to support the verdict of the jury.

The only evidence that tends in any wise to connect the defendant with Simpson and the robbery after the robbery was committed was given by those who actually participated in the robbery and their relatives. Those witnesses testified to nothing that in any wise connected the defendant with the actual robbery of the bank, or with any knowledge that the bank was to .be robbed. The only evidence tending to show guilty knowledge of the defendant before the robbery were the circumstances set out in this opinion.

The Attorney General in his brief says:

“The only question really involved in the case is whether or not the defendant herein, Minnie Wallis, was concerned in the robbery of this bank in such a way that under the law she would be guilty in the commission of the crime.”

The only theory upon which a conviction could be sustained would be that the defendant was an accomplice of Simpson and Rickard.

In Johnson v. State, 24 Okla. Cr. 326, 218 Pac. 179, in the body of the opinion at page 332, of 24 Okla. Cr., 218 Pac. 179, 181, this court said:

“It is always necessary, in proving a case against a defendant charged as being an accomplice, to show the culpability of the principal. There can be no accomplice, until it. has been shown that the principal committed the offense, and that the accomplice previously advised and abetted, or furnished the means by which the crime was committed by the principal.”

Knowledge that a crime has been committed and concealment of such knowledge does not make one an accomplice, unless he aided or participated in the offense. State v. Dalton, 65 Wash. 663, 118 Pac. 829; In re Bowman, 38 Nev. 484, 151 Pac. 517; People v. Seiffert, 81 Cal. App. 195, 253 Pac. 189.

There is nothing in the record to show that the defendant had anything to do with furnishing the car or quilts, tarpaulin, or gun, or had any knowledge whatever that the robbery was to be committed. The fact that the robbers used her husband’s ear and gun and other property would be a circumstance tending to^ show that she had no knowledge of it, nor had anything to do with the robbery before it was committed. The fact that Simpson and Rickard had previously lived in the home of the defendant and her husband, and the fact that Simpson returned to this home after the robbery, are not inconsistent with her innocence. The facts that she kissed Simpson and aided him in escaping might indicate that he was her sweetheart and are what she would naturally do for him, when he was in trouble, but are not inconsistent with her innocence and do not tend to establish that she had any knowledge of or participated in the robbery of the bank.

This court has uniformly held that where a conviction is sought upon circumstantial evidence, all the circumstances proved must be consistent with each other and with the hypothesis that the defendant is guilty, and at the same time inconsistent with any other hypothesis. Nash v. State, 8 Okla. Cr. 1, 126 Pac. 260; De Bose v. State, 18 Okla. Cr. 554, 197 Pac. 176.

The facts and circumstances proved must not only be consistent with and point to the guilt of defendant, but they must be inconsistent with his innocence. Sies v. State, 6 Okla. Cr. 142, 117 Pac. 504; Davis v. State, 18 Okla. Cr. 112, 193 Pac. 745; Key v. State, 22 Okla. Cr. 284, 210 Pac. 1044; Hamilton v. State, 25 Okla. Cr. 233, 219 Pac. 951; Halsey v. State, 42 Okla. Cr. 221, 275 Pac. 405; Zeligson v. State, 43 Okla. Cr. 24, 276 Pac. 791.

Where the evidence is wholly circumstantial and the facts and circumstances in evidence are of such character as to permit an inference consistent with innocence, it cannot be regarded as evidence sufficient to support a conviction. Brown v. State, 12 Okla. Cr. 343, 156 Pac. 1150.

This court is reluctant to reverse a case of this character, but where the evidence offered by the state is circumstantial and where the circumstances are as consistent with the innocence of the defendant as they are with her guilt, it is the duty of this court to reverse the case on the ground that the evidence is insufficient to support the verdict of the jury.

The evidence being insufficient to support the verdict of the jury, the cause is reversed.

EDWARDS, P. J., and DAVENPORT, J., concur.


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    MRS. ROBERT PATTERSON v. STATE.
    No. A-6368.
    Opinion Filed Nov. 8, 1930.
    (292 Pac. 1055.)

      Disney, Wheeler & Alcorn, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The appeal in this case was filed in this court on the 11th day of September, 1926. On January 23, 1928, the case was orally argued and submitted on brief. 'When the court reached the case on the docket for preparation of an opinion, it was discovered that the case-made was missing from the files of the clerk of this court. Counsel for defendant was requested to return the case-made, but the request was not complied with. On the 5th day of September, 1930, counsel for defendant was ordered to- return the case-made to- the clerk of this court, or to substitute a copy thereof within 30 days. This order has not been complied with; nor has there been any showing that the case-made is lost without any fault or negligence on the part of the defendant or her counsel; nor has there been any showing made that a copy of the missing case-made cannot be supplied.

In the case of Bailey v. U. S., 3 Okla. Cr. 175, at page 179, 104 Pac. 917, 918, 25 L. R. A. (N. S.) 860, in the body of the opinion, this court said:

“However, it is clear that in any case properly be- . fore this court, where it is made to appear that the record in the case has been destroyed, without possibility of substitution, through no- fault of the appellant or his counsel. the court may order a new trial.”

In this case, there being no- showing that the loss or absence of the record is without fault of appellant or her counsel, and no showing that a copy of the missing case-made cannot be supplied, the appeal is dismissed.

For the reasons stated, the appeal is dismissed.

EDWARDS, P. J., and DAVENPORT, J., concur.