author: BESSEY, J.

text:
    CHUNK DE BOSE v. STATE.
    No. A-3850
    Opinion Filed April 20, 1921.
    (197 Pac. 176.)
    (Syllabus.)
    1. EVIDENCE — Weight and Sufficiency — Circumstantial Evidence. To support a verdict in a criminal case, based upon circumstantial evidence alone, it is not sufficient that the facts proven coincide with and render probable the guilt of the accused; but the circumstances shown must not only be consistent with the’ guilt of the accused, but they must exclude, to a moral certainty, every other reasonable hypothesis.

      2. ARSON — Correspondence of Tracks and Shoes — Insufficient Evidence. The vague testimony of unfriendly witnesses concerning the correspondence of tracks found and the shoes worn by the defendant at most creates a suspicion that the defendant maybe guilty of the offense. -Such evidence also has a tendency to- - cast suspicion on others, and is not incompatible with the innocence of the accused.
    3. EVIDENCE — Testimony at Former Trial — Sickness of Witness. An unverified certificate of á purported physician stating- “This '-ertify that Virgie Selmnn is in such physical condition that she should not leave home ” is not a sufficient showing- to warrant the introduction of her testimony taken at a former trial.
    4. WITNESSES — Contradictory Statements to Discredit. A party has a right, for the purpose of discrediting the testimony of an adverse and hostile witness,, to prove statements made by him contradictory of the testimony given by him, after a requisite examination of" the witness in regard to such statements, whether they are statements of facts or expressions of opinions.

      Appeal from District Court, Creek County; Luden B. Wright, Judge.

    Chunk De Bóse was convicted of arson in the first degree, and he appeals.
    Reversed and remanded.

      J. R. Miller and F.-W. Jacobs, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall and E. L. Fulton, Asst. Attys. Gen., for the State.
   BESSEY, J.

The material matter about which there is no conflict was that the plaintiff in error, hereinafter called the defendant, and the prosecuting witness, Jim Freeman, both of whom are negroes, lived south of Kellyville, in Creek county, about 2 1-2 miles apart; that each had married the other’s sister, and prior to the alleged offense there had been bitter ill-feeling existing between them, growing out of family aft airs, resulting in the separation of the defendant and his wife.

It appears from this record that some members of the family favored the defendant. The mother of the defendant and his sister-in-law testified for the defendant, sharply controverting the testimony of the prosecuting witness. Jim’Freeman, brother-in-law of the defendant, .and the testimony of his sister, wife of Jim Freeman, and the testimony of another sister, Virgie Selman. These were all willing, eager witnesses, and their testimony on several material matters was conflicting.

It appears that on Saturday night, March 1, 1919, the prosecuting witness and his wife, a school-teacher, Eva McCoy, and a young negro, Joe Pinue, who was courting Eva McCoy, had been playing cards from dusk until near midnight in Jim Freeman’s house, where the fire originated; that it was a cold night, and that they had a good wood fire burning in a Big Ben heating stove; that just after they had all retired for the night, and before any of the parties had gone to sleep, the fire was discovered in the valley of the roof of the building; that they all arose and proceeded to extinguish the fire, after it had burned a small hole in the roof; the young man, Joe Pinue, went upstairs and with his fist knocked out some shingles around where the fire was burning, and a bucket of water was handed to him, which he applied from the inside. The prosecuting witness and the schoolma’am threw on water from the outside; that a stovepipe extended from the stove into a tin saddle fastened on the comb of the roof; that originally there was some pipe extending upwards from this tin saddle, but that this pipe above the roof had blown off.

The prosecuting witness and his wife testified that a piece of partially burned quilt, which they claimed belonged to the defendant and which had been saturated with oil and water, was found on the roof where the fire was. The disinterested witnesses, Joe Pinue and Eva McCoy, made no mention in their testimony of this quilt. The prosecuting witness testified that out at the chicken house he found a piece of rubberoid roofing partially covered with crude oil, and this rubbéroid roofing or tar paper was by other witnesses identified as belonging to the defendant; that the ground about the premises and in that neighborhood was of a sandy nature, and that a man’s, shoe tracks led from the house where the fire occurred to a spot about 200 yards distant where there had recently been a fire; and where it appeared from the horse’s tracks and the condition of the ground that a horse had been tied, and this horse’s tracks led from this place to near where the defendant, lived, .and corresponding, tracks led from near the defendant’s home to near the place of the fire. It was claimed that by actual measurement these shoe tracks corresponded'to'the shoes worn by the defendant on the morning following the fire, at the time of his arrest.

Joe Eldridge, a deputy sheriff living in the country near by, arrested the defendant on the morning following the fire and placed him in jail, and later went back to the premises of the defendant to look for evidence. In the beginning this, deputy and the prosecuting witness suspected that one McElway, who lived about 50 yards from the defendant, had committed 'the offense. After going to Mc-Elway’s house, the deputy, McElway, and several others, in the absence of the defendant and his family, went into the defendant’s house in the nighttime, and by means of lighted matches found and took possession of some of the defendant’s clothing, said to be soiled with crude oil. The shoes of the defendant, several pieces of clothing, the oil-stained piece of quilt, and another piece of quilt, said to correspond with it, and the piece of oiled rubberoid were some time afterwards tied up in a gunny sack and turned over to the sheriff. The defendant claimed that these crude oil stains were placed on his clothing by some other person, and that the pieces of quilt were not his property and never had been in his possession.

The deputy sheriff testified at great length concerning the different human tracks and horse tracks found at different places. With reference to the horse’s tracks this deputy testified that they led from near the place of the fire to near the defendant’s home, in one direction only. On cross-examination he repeated and insisted that the tracks led toward the defendant’s home, and that these were the only tracks found. Later, after a court intermission, and after having had a conference with the county' attorney and others interested in the prosecution, he was recalled and testified that these tracks led both to and from these places. Other witnesses testified that there were four of these tracks, two leading each way. The testimony of these witnesses as to both the horse tracks and the shoe tracks was conflicting and confusing.

There was evidence that the prosecuting witness kept three dogs at his home, but there is no evidence that any of them barked or made any alarm on that particular night.

It appears that these lived in an oil-producing district, and that there were numerous oii tanks thereabouts, and that these tracks led by a small stream or ditch where there was a pool of water covered with oil, and that there were oil stains on the stones next to the pool, and that there were some finger prints on the stones.

The defendant and his witnesses testified that the piece of quilt introduced in evidence never did belong to him; that the tracks leading to and from the place of the fire were not made by defendant and did not correspond to the shoes he wore. The defendant claimed that he was at home all of that night with his two little boys, and that after he was arrested the following morning he voluntarily removed his shoes for the purpose of having them fitted into the tracks claimed to have been made by him, and that the shoes did not fit the tracks. 'It was the theory of the defendant that this prosecution was maliciously framed up by the prosecuting witness, Jim Freeman, and this record in some particulars gives color to this theory.

There was no positive direct evidence that the de-fendánt committed the crime charged. The state’s case rested almost wholly upon the circumstantial evidence of the tracks and the identity of the oiled quilt and piece of oiled rubberoid, all of which was in many important particulars conflicting.

Where there is direct, substantial evidence supporting a verdict, although conflicting, this court will not ordinarily disturb a verdict on the ground of insufficient evidence; but where the evidence is almost wholly circumstantial, and not such as will preclude any and all hypothesis consistent with the innocence of the defendant, this court will not hesitate to set aside a verdict based on such circumstantial evidence. IThe mere union of a limited number of independent circumstances, each of an imperfect and inconclusive character, will not justify a conviction. They must be such as to generate- and justify full belief, according to the standard rule of certainty: It is not sufficient that they coincide with and render probable the guilt of the accused, but they -must exclude every other reasonable hypothesis. No other conclusion but that of the guilt of the accused must fairly and reasonably grow out of- the evidence, and the facts must be absolutely incompatible with innocence and incapable of explanation upon any other reasonable hypothesis than that of his guilt. Inkelbarger v. State, 8 Okla. Cr. 316, 127 Pac. 707; Matthews v. State, 8 Okla. Cr. 676, 130 Pac. 125; Carter v. State, 6 Okla. Cr. 232, 118 Pac. 264.

The instruction on circumstantial evidence given in this case seems to have been copied from the decision last cited, and is approved as a good abstract statement of the law on that question.

It would seem that little credence should be given some of the circumstances shown and relied upon by the state in this case. Whether a piece of cotton quilt recently soaked in a pool of water covered with oil would accelerate or retard a fire might be an open question. Bearing in mind that there had been ill feeling existing between these parties, it would be as probable to suspect that the prosecuting witness desired the removal of the defendant from the community as to suspect that the defendant desired to get rid of his brother-in-law by burning his home. We find it difficult to understand how the defendant, without being detected could take an oil and water soaked cloth and set fire to the roof of a house occupied by a card party where the master of the house kept three dogs.

Applying the rule of circumstantial evidence stated above, the circumstances proven by the state, if believed by the jury, do not exclude the following reasonable or probable theories of the innocence of the defendant, viz.:

(1) The fire on this shingle roof may have ignited from live embers from the wood fire kept burning for several hours in the Big Ben stove, emitted from the tin saddle on the comb of the roof.

(2) The piece of quilt soaked in oil and water may have been placed on this roof by some person other than the defendant.

(3) There may have been many persons in that community who wore shoes that would have made tracks in the yielding sand such as were found leading to and from this house, and many different horses may have made tracks similar to those identified by the state’s witnesses.

(4) The defendant may have been innocent of the crime charged, and these tracks and the oil-soaked piece of quilt may have been so arranged by the guilty person to divert suspicion from the real perpetrator of the offense, and intended to cast the suspicion on the defendant.

On the subject of tracks, Mr. Burrill, in his work on Circumstantial Evidence, lays down the following rule:

“Sometimes such impressions are used to establish the fact of presence more directly, by means of the exact correspondence observed to exist between them and the feet or shoes of the accused, proved by actual comparison, as by bringing the two objects into juxtaposition and placing the shoe upon the impression. Where no peculiar marks are observed, but the correspondence thus proved is merely in. point of superficial shape, outline, and dimensions and those of the ordinary character, it may serve to confirm a conclusion established by independent evidence, but cannot be, in itself, safely relied upon, on account of the general resemblance known to exist among the feet and shoes of the persons of the same age and sex.”

“Upon ill will and the vague testimony concerning the correspondence of the tracks found and the shoes worn by the defendant, the conviction of the defendant was. procured. In our opinion the most that can be said of this evidence is that it raised a suspicion against the defendant that he might have been the perpetrator of the homicide. Evidence in this case of the same character creates a suspicion against other persons in that community.”

See Gill v. State, 36 Tex. Cr. R. 589, 38 S. W. 190.

In another Texas case the court went so far as to 'hold that, where it was not shown that there was any peculiarity aboüt the tracks seen at different times and places, observed and compared by a witness, and the dimensions and size of the tracks were not stated, such testimony would be inadmissible and without probative force. If under such circumstances the testimony concerning the tracks was inadmissible, it would seem that under the circumstances in this case the testimony would be admissible, but of doubtful probative value. Ballenger v. State, 63 Tex. C. R. 657, 141 S. W. 91; Tankersley v. State, 51 Tex. Cr. R. 173, 101 S. W. 234.

Applying the rule applicable to a conviction predicated upon circumstantial evidence that the circumstances shown must not only be consistent with the guilt of the defendant, but that they must exclude to a moral certainty every other reasonable hypothesis, we hold that the evidence in this case is insufficient to support the verdict. '

There was no sufficient predicate laid for the introduction of the testimony of Virgie Selman, taken at a former trial and introduced over the objections of the defendant. Virgie Selman was present in court the day previous, and the state, as a foundation for the introduction of her testimony, presented the following:

“Dr. J. W. St. Sing,

“Physician and Surgeon

“Kelleyville, Okla., January 19, 1920

“To Whom it May Concern:

“This is to certify that Virgie Selman is in such physical condition that she should not leave home.

“J. W, St. Sing, M. D.”

This certificate was not verified; no showing was made as to the nature of the malady afflicting the witness, or that she was this doctor’s patient; and no showing was made as to the qualifications of the physician. We assume that J. W. St. Sing was a reputable practicing physician, but this is a mere presumption.

For the purpose of laying' a foundation to show that the prosecuting witness, Jim Freeman, had made other and conflicting statements inconsistent with his testimony then being given, he was asked:

“You told Chunk’s mother, Louisa De Bose, that you didn’t believe Chunk did this, didn’t you?”

“Didn’t you tell Joe Eldridge, when Joe Eldridge brought Chunk there that morning, that you didn’t believe that Chunk set your house afire?”.

“Didn’t you tell Mr. Jacobs and myself, right over there in the addition on Sunday morning, when we met you there in the car, that you did not believe Chunk set your house on fire ? ”

To all of which questions objections were interposed by the state and sustained by the court. The defendant sought to show by a number of other witnesses that Jim Freeman and Joseph Eldridge, the deputy shériff, had stated to them, at different times, that they did not believe that Chunk De Bose was guilty of the offense charged, to all of which objections were interposed and sustained.

This whole case rested largely on the testimony of Jim Freeman, who was a most willing witness, eager to fix the crime upon the defendant. It was competent and proper for the jury to know whether this witness had made contradictory or inconsistent statements out of court. His testimony tended to show that the defendant was guilty, and the jury had a right to know why, at a time when he was in possession of all the facts, he had entertained a belief that the defendant was innocent, and upon what facts he based that conclusion, and whether or not he was withholding facts that should go to the jury. If Jim Freeman, knowing all the facts, entertained doubts of the defendant’s guilt, and if the deputy sheriff, the “Sherlock Holmes” in the case, was also in doubt, it is reasonable to infer that the jury, in possession of the same information, would have had like doubts. We think it was error to exclude this testimony.

It has been held in many cases that a witness who testifies to facts cannot be discredited by showing prior expressions of opinion by him, even though such expressions tend to’contradict the inferences which may be drawn from his recital of facts; but there are circumstances under which the courts have held to the contrary, and where the circumstances appear as disclosed in this record, upon reason and good authority the facts related by the witness - and his opinions and belief to the contrary may and should be a subject of inquiry. In the case of Dudley v. Satterlee, 8 Misc. 538, 28 N. Y. Supp. 741, it was held:

“A party has the right, for the purpose of discrediting the testimony of an adverse and hostile witness, to prove statements made by him contradictory of the testimony given by him, after the requisite examination of the witness in regard to such statements, whether they are statements of fact or expressions of opinion.’’

See, also, State v. Lewis, 44 La. Ann. 958, 11 South. 572; State v. Hughes, 71 Mo. 633.

The testimony of Abner Bruce, the sheriff, was to the effect that the exhibits,' the piece's of - quilt, the articles' of clothing, and the piece of rubbéroid roofing were all left in his custody, and that one of the-pieces-: of quilt had, by some person unknown, béeri sjtaiiied with' oil, after it was placed in his custody, and that the piece of rubberoid was taken away by some person to him unknown, showing, as we think, that some interested person had attempted to suppress or manufacture evidence, and that the tampering with these exhibits in this manner made some of them inadmissible as evidence. This record also shows that Jim Freeman had access to all these exhibits before they were delivered to the sheriff, which fact, in connection with the tampering with the exhibits after they were paced in the custody of the sheriff, strengthens the theory of the defendant that Jim Freeman may have been the guilty person.

For the reasons stated in this opinion, this case is reversed and remanded, with direction to proceed in accordance with the views herein expressed. The warden of the penitentiary at McAlester will deliver the defendant to the sheriff of Creek county, who will hold him in custody until otherwise ordered according to law.

DOYLE, P. J., and MATSON, J„ concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    EASTMAN WILLIAMS v. STATE.
    No. A-3684
    Opinion Filed April 20, 1921.
    (196 Pac. 970.)
    (Syllabus.)
    APPEAL AND ERROR — Abatement of Prosecution by Death of Accused. In a criminal action, the purpose of tbe proceeding being to punish the accused, the action must necessarily abate upon his death, and where it is made to appear that plaintiff in error has died pending the determination of his appeal, the cause will be abated.

      Appeal from District Court, Atoka County; J. H. Linebaugh, Judge.

    Eastman Williams was convicted of manslaughter in the first degree, and appeals.
    Proceeding ordered abated.

      J. G. Ralls and J. H. Gernert, • for plaintiff in error,
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Eastman Williams, was convicted of manslaughter in the first degree upon an information charging him with the murder of one Culbertson Lewis, and in pursuance of the verdict he was on the 19th: day of July, 1919, by the court sentenced to be imprisoned in the penitentiary for the term of four years.

Since the appeal was taken, and before the final submission of the cause, the plaintiff in error departed this life, and his counsel of record have moved to abate the proceedings. In a criminal action, the purpose of the proceedings being to punish the defendant in person, the action must necessarily abate upon his death.

It is therefore considered and adjudged that the proceeding in the above-entitled cause, and especially under the judgment therein rendered, has abated, and that the district court of Atoka county enter its appropriate order to that effect.

MATSON and BESSEY, JJ., concur.


text:
    JOE McKINNEY v. STATE.
    No. A-3304
    Opinion Filed April 23, 1921.
    (196 Pac. 974.)
    (Syllabus.)
    APPEAL AND ERROR — Discretionary Rulings — New Trial. A motion for new trial upon the ground of newly discovered evidence is addressed to the sound discretion of the trial court, and its ruling thereon will not be disturbed, except for an abuse of this discretion; the presumption being that the discretion was properly exercised.
    Appeal from District Court, McCurtain County;C. E. Dudley, Judge.

    Joe McKinney was convicted of larceny of domestic animals, and he appeals.
    Affirmed.

      McPherren & Cochran,- for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The. plaintiff in error, Joe McKinney, was tried, convicted, and in pursuance of the verdict of the jury was sentenced to serve a term of two years’ imprisonment in the penitentiary. From the judgment he appeals.

The only assignment of error presented is that the court erred in refusing to grant a new trial on the ground of newly discovered evidence.

The information charged the theft of one. red cow and one red heifer, both branded “D.S.” on right hip, marked crop off left ear; the same being the.personal property of Louisa Anderson, who as a witness for the state testified that she was the owner of the cow and heifer alleged to have been stolen, and that the same was taken against her consent.

The witness Baker testified that he bought the cattle described from Joe McKinney, in Broken Bow, and paid him $16 for the cow and $11 for the heifer.

Jimmie Anderson, son of Louisa Anderson, testified that after the cattle were missed Joe McKinney told him that he sold the cattle to Mr. Baker, because he wanted to get money to buy whisky and said he would pay Louisa.

Cross-examined, he stated that Wycy Thompson was his neice and lived with his mother and they all moved to Smithville and Wycy died a short time afterwards.

C. H. Ward testified:

“I know Louisa Anderson, and I saw a red cow of hers, branded ‘D. S.,’ and a heifer branded the same way, in Mr. Baker’s lot.-' I recognized them as being Louisa Anderson’s cattle. I had often seen them near Louisa Anderson’s home.”

As a witness in his own behalf, the defendant testified:

“I live in Broken Bow. I was raised with Jimmie Anderson. Wycy Thompson lived with the Andersons. I met her in Broken Bow and bought a cow and a heifer from her. I went out to Jimmie Anderson’s. Nobody was there, and I found the cow and heifer about a mile from the house, and I drove them to Broken Bow and sold them to Baker the next day.”

The newly discovered evidence as set out in the affidavit of the defendant is to the effect that Jerry and Esias Hleo-tambi would testify that the animals described were raised on the farm of Jerry, and that the mother of the cow and grandmother of the heifer was given to Wycy Thompson by Louis Anderson, husband of Louisa and grandfather of Wycy Thompson; that defendant made diligent search for witnesses as to the ownership of the cow and heifer among the friends and relatives of Wycy Thompson, and all stated they had no knowledge as to such ownership and defendant had no knowledge that the witnesses whose affidavits are hereto attached knew of any fact material to his defense until Frank Baker advised one of his attorneys, after the verdict had been returned, that said witnesses would so testify.

The newly discovered evidence set out in the affidavits of Jerry and Esias Hleotambi is to the effect as stated in the defendant’s affidavit.

A motion for new trial upon the ground of newly discovered evidence is addressed to the sound discretion of the trial court, and its ruling thereon will not be disturbed, except for an abuse of discretion; the presumption being that the discretion was properly exercised. Harper v. State, 7 Okla. Cr. 581, 124 Pac. 1116; Drew v. State, 6 Okla. Cr. 348, 118 Pac. 677.

We think it is apparent that the defendant’s affidavit and the affidavits attached thereto presented no facts which in the exercise of the sound discretion of the trial court would have required the granting of a new trial on the ground of newly discovered evidence.

We also think that the alleged newly discovered evidence should be disregarded on the ground that due diligence was not shown in procuring it.

'The judgment of the district court of McGurtain county is therefore affirmed, and the cause remanded, with direction to enforce its judgment therein.

MATSON and BESSEY, JJ., concur.


text:
    MILES CHASTAIN v. STATE.
    No. A-3487
    Opinion Filed April 25, 1921.
    (196 Pac. 973.)
    (Syllabus.)
    1. JURY — Right to Jury Trial — Violation of City Ordinance. The Bill of Rights of the Constitution of Oklahoma declares that: “In all criminal prosecutions the accused shall have the right of a speedy and public trial by an impartial jury of the county in which the crime shall have been committed.” Const, art 2, § 20. Held, that a person prosecuted under a city ordinance for an offense which is also made a misdemeanor by statute or an ordinance, the punishment for a violation of which is or may be imprisonment, is entitled to a jury trial in the court of orisiual jurisdiction, and to accord to the accused the right to be tried by a jury in the county court on appeal after conviction in the municipal court does not satisfy the requirements of the Constitution. In such case a judgment of conviction in the municipal court, not based upon a verdict of guilty by a jury, is void.
    2. SAME — Force of City Charters. The constitutional guaranties intended to secure the liberty by the citizen and the right to a trial by jury cannot be evaded by the nature of the powers vested in the municipality under its charter or the nature of the jurisdiction conferred upon the municipal court.

      Appeal from County Court, Rogers County; Edward Jordan, Judge.

    Miles Chastain was convicted of violating an ordinance of the city of Collinsville in the police court, and on appeal in the county court was again convicted, and he appeals.
    Reversed and remanded, with direction.

      Goldesberry & Boone, for plaintiff in error.
   DOYLE, P. J.

In this case the plaintiff in error was tried and convicted in the police court of the city of Collins-ville on a complaint charging that he did have in his possession 38 half pints of whisky with the intent and for the purpose of selling, bartering, giving away, and otherwise furnishing the same against the ordinances of said city.

When the case was called for trial he demanded a jury trial, which was by the police judge refused, and after hearing the evidence the police judge found him guilty and sentenced him to pay a fine of $50 and the costs. From the judgment he appealed to the county court. In the county court he filed a plea in abatement calling in question the jurisdiction of the county court on the ground that the police court was without jurisdiction to try and convict the defendant on the complaint herein, which was overruled, also a demurrer, which was overruled. Upon his trial in the county court the jury found him guilty and fixed his punishment at a fine of $75, and the costs. The following judgment was rendered by the county court on the verdict:

“It is the judgment and sentence of this court that the defendant, Miles Chastain, be required to pay a fine of $75 and the costs of the cause, and in default of the payment of the fine and costs he be confined in the city jail until such fine and costs are paid in full at the legal rate per day.”

To reverse the judgment he has appealed to this court. Of the various errors assigned it is only necessary to notice the one that the police court was without jurisdiction to try the case and the county court did not acquire jurisdiction on appeal.,

In the case of Ex parte Johnson, 13 Okla. Cr. 30, 161 Pac. 1097, this court held:

“That a person prosecuted under a city ordinance for an offense which is also made a misdemeanor by statute, or an ordinance the punishment for a violation of which is or may be imprisonment, is entitled to a jury trial in the court of original jurisdiction, and to accord to the accused the right to be tried by a jury in the county court on appeal after conviction in the municipal court does not satisfy the requirements of the Constitution. In such case a judgment of conviction in the municipal court not based upon a verdict of guilty by a jury is void.”

And that:

“The constitutional guaranties intended to secure the liberty of the citizen and the right to a trial by j ury cannot be evaded by the nature of the powers vested in the municipality under its charter, or the nature of the'jurisdiction conferred upon the municipal court.”

For the reasons stated in the opinion of Ex parte Johnson, supra, the judgment is reversed, and the cause remanded to the trial court, with direction to dismiss.

MATSON and BESSEY,. JJ., concur.


text:
    HENRY CASSADY v. STATE.
    No. A-3846
    Opinion Filed April 25, 1921.
    (197 Pac. 171.)
    (Syllabus.)
    1. PERJURY — False Affidavits on Information and Belief. Tbe wilful making of an affidavit to facts material in any proceeding in which an oath may be administered, known by the deponent to be false, although stated on information and belief, constitutes “perjury.”

      2. SAME — Definition of Perjury. Perjury consists in swearing falsely, willfully, and corruptly, contrary to the belief of the witness, not in swearing rashly and inconsiderately, according to his belief.
    3. WITNESSES — Cross-Examination—Unfriendly Attitude. It is permissible, on cross-examination of a witness for the state, to show his malice or unfriendly attitude towards the defendant or any special interest he may have in the prosecution, as affecting his credibility, and this is so even though the subject of inquiry may be embarrassing or humiliating to the witness so interrogated.

      Appeal from District Court, Logan County; Arthur R. Swank, Judge.

    Henry Cassady was convicted of perjury, and he appeals.
    Affirmed.

      George W. Partridge, for plaintiff in error.

      S. P. Freeling, Atty Gen., for the state.
   BESSEY, J.

On March 15, 1920, an information was filed in the district court of Logan county against Henry Cassady, plaintiff in error, hereinafter referred to as defendant, charging him with perjury in the third degree, by making false affidavit on March 12, 1920, to procure a marriage license.' There was Ja vérdibt of-gnilty'and judgment and sentence1 "on' April' 5:, 1©20', imposing a. penalty of- two gears’ confinement in the -state penitentiary;

The record: shows that about -18 months .prior to the date, of the procuring of this marriage license. the defendant lived near Tryon in Lincoln county and was from time to time employed as a farm laborer by.-,Mrs. Stella Rowe, residing in. the .same community, who, with, other members of “her family., "had moved to Guthrie '& 'short time before this trial, that Violet Rowe was the daughter of Mrs. Stella Rowe, and that oh March 12,. 1920, the defendant mudé application for and procured'a marriage license-in Logan county to marry. Violet Rowe,, and that they, without the knowledge or consent of the mother, were married the same day .by the county judge at Guthrie.

The evidence oh the part of the state shows that at this' time the girl was but 12 years' of age, and that the defendant, from what had been told him and his intimate association with the girl and her. family, knew or had good reason to know that she was under the age of IS years; that to procure the marriage license he made an affidavit in which it was stated, on information and belief, that the girl was 18 years old. The mother and the twin sister, Veda Rowe, testified as to the relations and frequent association of the parties during all of this period.

It appears from the record that Mrs. Rowe, for a portion of the time, was separated from her husband, and that the defendant while in the employment of Mrs. Rowe became her sweetheart; and that later he transferred his affections to the daughter resulting in the elopement and marriage.

The defendant claimed that the girl told him that she was 18 years old, and that upon this information and from her physical development and appearance he behaved that she was that old, and made the affidavit on information and belief, in good faith. Upon the question of his knowledge and belief as to her age there was testimony supporting the theory of the state, and likewise testimony supporting the claim of the defendant.

The defendant urges in his brief that, because the affidavit was made upon information and belief, there could be no perjury predicated upon it. The gist of the offense of perjury is the ^ wilful making of a false statement, under oath, of any facts known by the affiant to be false. So, then, if a person makes an affidavit he knows is false, although stated to be on information and belief, he is guilty of perjury. When the information and proof supporting it, as in this case, negatives not only the truth of the facts stated under oath, but also the truth of his info'rmatifon and belief, it is sufficient. 21 R. C. L. 255; State v. Rupp, 96 Kan. 446, 151 Pac. 1111, L. R. A. 1916B, 848; 25 L. R. A. (N. S.) notes, 659.

In this case there is proof tending to show that the defendant knew that the girl was under eighteen years of age when he made the affidavit. If that be true, he made oath to a false statement when he deposed that he believed she was over the age of 18. The rule applicable to cases of this character is well stated in the case of Pilgrim v. State, 3 Okla. Cr. 49, 104 Pac. 383, and reiterated in the case of Mathes v. State, 15 Okla. Cr. 382, 177 Pac. 120, as follows:

“Perjury consists in swearing wilfully and corruptly, contrary to the belief of the witness, and not in swearing rashly and inconsiderately according to his belief.”

The record shows that before the defendant married the daughter the mother of the girl and the defendant were sweethearts, and that in this triangular love affair the mother was the woman scorned. The defendant, on cross-examination of the mother, sought to show this relationship, as affecting her feeling toward the defendant and her credibility as a witness against him. The court, in the following manner, refused to permit such showing:

“Q. Then he worked for you on the farm? A. Off and on; yes.

“Q. Well, he worked for you while Mr. Rowe was gone? A. That was when we was separated.

“Q. When you were separated, Mr. Rowe was gone, and Mr. Cassady would come and work for you? A. We was divorced and separated.

“Q. When were you married the last time to Rowe?

“By Mr. Dinwiddie: We object as immaterial.

“By the Court: Objection sustained.

“Q. As a matter of fact, you are in love with Cas-sady yourself and wanted to marry him, didn’t you?

“By Mr. Dinwiddie: Object as immaterial and incompetent, neither tending to prove or disprove the issue in this case.

“By the Court: Objection sustained. I don’t know, I will let her answer that.

“Q. That was true, wasn’t it? A. No, sir; not at present.

“By the Court: Ask her again.

“Q. You were in love with Cassady and wanted to marry him yourself? A. When?

“Q. Right recently. A. No, sir.

“Q. Didn’t you write him a letter on the 12th day of August?

“By Mr. Dinwiddie: Objected to as immaterial.

“By the Court: Objection sustained. Exception allowed.

“Q. I hand you Defendant’s Exhibit I and ask you to look at that letter and see if you didn’t write that letter to Mr. Cassady,

“By Mr. Dinwiddie: I object, if the court please, for the reason that it is immaterial and incompetent unless it tends to prove an issue in the case.

“By Mr. Partridge: It goes to affect the credibility of the witness.

“By the Court: Objection sustained. Exception allowed.

“By Mr. Partridge: I want to make an offer. The defendant, Cassady, offers to introduce in evidence a letter written by the witness—

“By the Court: You have the letter identified and make your offer in the proper way.

“By Mr. Partridge^ We offer Exhibit I in evidence, for the purpose of affecting the credibility of the witness.

“By Mr. Dinwiddie: To which the state objects as incompetent, irrelevant, and immaterial, neither tending to prove or disprove any issue in this case.

“By the Court: Objection sustained. Exception allowed.

The letter, defendant’s Exhibit. I, so offered and' refused admission in the record, is in words, letters, and figures as follows:

“Guthrie, Oklahoma.

“Dear Henry, I received your letter I was glad to get it if it was little Henry i shore felt sad after you left; I stood & watched you till yo.u got clear out of site and you never even looked back once, and when i asked you how you wanted me to come back you said 0 just eny way you warn to rite and tell me when you got Home and if it was dark Have you trimed the orchard yet Guy hant got home yet and Maud is just bucking.

2

Well, Dear little friend you Are not the only lonesome one, but when i get lonesome i alys think of How i used to bage you to marry me and you allys made some excust Veda said you told her you would of married me but for one thing but woulden'say what while you miss us I no but you will somme for get aspecaly me before long I would love to be with you at night you know i was alys Happy with you Henry i am riting this in the dark dont know wether you can read it or not Veda taken her first music lesson today on the Piano it has been so lonesome I have just walked the yard all day till i am so- tired and sleepy i will hafto quit and go to bed i will be out there before long so stay at home close I may come by myself.

“from one who loves you best of all on earth

“Mama.”

At this stage of the proceeding the defendant was entitled to have this evidence go to the jury, to show the witness’s interest in the prosecution and her feelings and possible malice toward the defendant, as affecting her cred-ilibity. However, upon the defendant’s own testimony and the testimony of the twin sister, introduced later, even though the testimony of the mother be eliminated entirely, there was sufficient evidence before the jury to warrant a finding that the defendant knew when he made the application for a marriage license that Violet Rowe was under the age of 18 years. Under these circumstances, applying the provision of section 6005 of our Statutes, defining harmless error the refusal of the court to permit the defendant to so discredit the testimony of the mother should not operate to reverse this case.

Complaint is made that two instructions offered by the defendant were refused by the court. The instructions refused were well stated, but the court in the instructions given traversed the same ground and fully and correctly stated the law applicable to this case, and on this point the defendant has no just reason for complaint.

For the reasons herein stated, the judgment of the trial court is affirmed.

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


author: MATSON, J.

text:
    RILEY BURGESS v. STATE.
    No. A-3575
    Opinion Filed April 25, 1921.
    (197 Pac. 173.)
    (Syllabus.)
    1. APPEAL AND ERROR — Procedure—Statutes. Chapter 219, Sess. Laws 1917, did not repeal sections 5989, 5992, and 5997, Rev. Laws 1910, relating to tbe manner and methods of taking an appeal in criminal causes and giving notice thereof. Said chapter 219 relates solely to the giving of notice of appeal in civil causes, and has no application to criminal appeals.

      2. SAME — Failure to Perfect Appeal — Dismissal. Where appellant within the time allowed for taking an appeal, served no notice of appeal upon the clerk of the court or county attorney, as provided by Rev. Laws 1910. § 5992, and no summons in error was issued and served upon the Attorney General, nor any waiver of the issuance and service ever made by him. within section 5997, nor any general appearance entered by him, the Criminal Court of Appeals has no jurisdiction to entertain the appeal on its merits, and will dismiss it.

      Appeal from District Court, Okmulgee County; Mark L. Bosarth, Judge.

    Riley Burgess was convicted of obtaining money under false pretenses, and sentenced to imprisonment in the county jail for thirty days, in addition to a fine of $680, .and he appeals.
    Appeal dismissed.

      B. T. Buchanan and D. H. Denman, for plaintiff in error,
    £. P. Freeling, Atty, Gen., and W. C. Hall and E. L, Fulton, Asst. Attys. Gen., for the State.
   MATSON, J.

Plaintiff in error, Riley Burgess, hereinafter referred to as defendant, was convicted in the district court of Okmulgee county of the crime of obtaining money by false pretenses, and punishment assessed as above stated.

He has attempted to appeal to this court from tfee judgment of conviction rendered against him in said trial court, and the Attorney General has filed a motion to dismiss said appeal, upon the. grounds that no written notices of appeal were, within the six-months’ period after the rendition of judgment for taking an appeal in felony cases, ever served upon the court clerk or county attorney of Okmulgee county, as provided in section 59, Revised Laws 1910; nor was there any service' of a suihmons in error issued, out of this court upon the Attorney .General, or a waiver of the issuance and service of same, as provided in section, 5997, Revised Laws 1910.

Section 5988, Revised Laws 1910 (Code of Criminal Procedure), in part provides:

“An appeal to the Criminal Court of Appeals may be taken by the defendant, as a matter of right, from any judgment against him.”

Section 5989, Id., provides:

“An appeal from a judgment in a criminal action may be taken in the manner and in the cases prescribed in this article.”

Section 5992, Id., provides:

“An appeal is taken by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting attorney. If taken by the State, a similar notice must be served upon the defendant, if lie can be found in the county; if not there, by posting up a notice' three weeks in the office of the clerk of the district court.”

Section 5996, Id., provides:

“In all criminal cases appealable to the Criminal Court of Appeals, the appellant may prepare, and it shall be the duty of the court to provide for the preparation and settling of a case-made in all respects as in civil cases, and the case-made so settled, served and filed in the trial court may be sent to the appellate court in lieu of all other records or bills of exception, or the proceedings in the appellate court may be as provided in the next section.”

Section 5997, Id., provides:

“Instead of the appeal hereinbefore provided for any party desiring to appeal to the Criminal Court of Appeals in any criminal case may proceed by case-made and petition in error in all respects and with all the rights, as provided in ‘Procedure Civil,’ and the summons in error shall be served upon the Attorney General, unless the same is waived as in other cases. Instead of the case-made plaintiff in error may attach to his petition in error a transcript of the proceedings of record in the trial court.”

All the foregoing statutory provisions relative to appeals in criminal causes, with the exception of section 5997, were carried into the Criminal Code from the territorial statutes. Section 5997 was a new section inserted by the revisionists in the Code of 1910, adopted by the Legislature, and became a part of said Code in May, 1913.

Prior to the adoption of the Revised Laws 1910, this court, in the case of Arispi v. Territory, 2 Okla. Cr. 79, 99 Pac. 1099, held:

“An appeal to the Criminal Court of Appeals may be taken by the defendant, as a matter of right, from any judgment against him, but the manner of taking and perfecting such appeal is a proper matter for legislative control, and the appeal must be taken in the manner prescribed by law; and, where the record before this court fails, to show notice and proof of service, as required by law, the case will be dismissed.”

“An appeal, when taken by the defendant, is perfected by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment, and by the service of a similar notice upon the prosecuting attorney. These notices are the prerequisite steps to conferring upon the appellate court the jurisdiction to hear and determine the appeal.”

Further, in Ensley v. State, 4 Okla. Cr. 49, 109 Pac. 250, it is held:

“Under section 6949 of Snyder’s Comp. Laws [section 5992, Revised Laws 1910] requiring notice of appeal to be served upon the clerk of the court and the prosecuting attorney, actual knowledge on the part of .the clerk and the prosecuting attorney, that an appeal is intended does not dispense with the necessity of giving formal notice and inak’irig due proof thereof.”

“Under section 6949 of Snyder’s Comp. Laws, requiring notice of appeal to be served upon the clerk of the court and the prosecuting attorney, a written notice is intended; and oral notice, though given in open court in the presence of those officers, and shown by journal entry, is insufficient.”

Subsequent to the adoption of the Revised Laws 1910, this court, in the case of State v. McDonald, 10 Okla. Cr. 413, 137 Pac. 362, held:

“(a) Where the notices of appeal required by statute were served upon the county attorney and clerk of the court in which the judgment was rendered, an appeal will not be dismissed because a summons in error was not served or waived.

"(b) Where the notices of appeal required by statute have not been served, this defect may be cured by the service of a summons in error upon the Attorney General, or by securing a waiver thereof.”

In the body of the opinion in the latter case, it is held:

“A motion was made to dismiss this appeal because a summons in error had not been issüed or waived. This motion is based upon section 5997, Rev. Laws 1910, which reads as follows:

“ ‘Instead of the appeal hereinbefore provided for any party desiring to appeal the Criminal Court of Appeals In any criminal cáse may proceed by casé-máde and petition in error in all respects and with all the rights,' as provided in “Procedure Civil,” and the summons in error shall be served upon the Attorney General unless the same is waived as in other cases. Instead of the case-made plaintiff in error may attach to his petition in error a transcript of the proceedings of record in the trial court.’

“This section should be construed in connection with section 5992, Rev. Laws 1910, which reads as follows:

“ ‘An appeal is taken by the service of a notice upon the clerk of the court where the judgment was entered* stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting attorney. If taken by the state, a similar notice must be served upon the defendant, if he can be found in the county; if not there, by posting up a notice three weeks in the office of the clerk of the district court.’

“We are of the opinion that section 5997 is an enlargement upon, and is not an abridgment of the right of appeal; that is to say, if a notice of appeal has not been served upon the county attorney and upon the clerk bf the court where the judgment was entered, that an appeal should not be dismissed for want of such notice if a summons in error is issued as provided for in section 5997. In this case proper notices of appeal were served. It was therefore not necessary to issue or waive summons in error. The motion to dismiss the appeal is therefore overruled.”

The foregoing statutory provision, and authorities of this court construing the same, constituted the law on the subject of notices of appeal in criminal causes at the time of the enactment of chapter 219, Session Laws1 Oklahoma 1917, effective May 23, 1917, entitled:

“An act regulating appeals to the Supreme Court of the State of Oklahoma, abolishing summons in error, providing on whom the case made shall be served, and the necessary parties to the petition in error, repealing sections 5238 and 5239, Revised Laws of 1910, enacting a section in place thereof, and declaring an emergency.”

Said latter act specifically repealed section 5238, Revised Laws 1910, and substituted the following in place thereof: , ; j

“Section 5238. The proceedings to obtain such reversal, vacation or modification shall be by petition in error filed in the Supreme Court setting forth the error complained of; but no summons in error shall be required, and the party desiring to appeal shall give notice in open court, either at the time the judgment is rendered, or within ten days thereafter, of his intentions to appeal to the Supreme Court. If said judgment shall be rendered within less than ten days of the expiration of any term of the court from which an appeal is to be taken such notice may be given within ten days after the rendition of such judgment, and such notice of an intention to appeal shall be entered by the clerk of the court on the trial docket of said court. Upon the giving of such notice and entering the same on trial docket, all parties of record in the court from which such appeal is to be taken shall become parties to the appeal in the Supreme Court, and no further notice shall be required to be served upon them of such appeal, and no appeal shall be dismissed by the appellate courts of this state because any party in the court below is not made party to the appeal but such notice above provided and showing intention to appeal shall automatically make all parties of record in lower court parties in the appellant court.

“It shall not be necessary for the party appealing to serve the case-made for such appeal on any party to the action who did not appear at the trial and take part in the proceedings from which the appeal is taken, or who shall have filed a disclaimer in the trial court; nor shall it be necessary to make any such person a party to the petition in error: Provided, that any party s,o omitted from the proceedings in error, who was a party to the action in the trial court, may be made a party plaintiff or defendant in the action in the Supreme Court upon such terms as the court may direct, upon its appearing that he might be affected by the reversal of the judgment or order from which the appeal was taken, with the right to be heard therein the same as other parties.”

By section 2 of said chapter 219, section 5239, Revised Laws 1910, was specifically repealed, with the addendum in said section 2, “and all laws in conflict herewith are hereby repealed.”

Counsel for defendant have filed a response to the motion of the Attorney General to dismiss this appeal, and rely upon an oral notice of appeal given in the trial court at the time judgment was rendered.

If chapter 219, Laws 1917, supra, can be construed to be applicable to appeals in criminal causes, the oral notice given by defendant in this case would 'be sufficient. On the contrary, if said chapter is not so applicable, defendant having given no other notice of appeal, this court is without jurisdiction to consider this appeal, and the same must necessarily be dismissed.

By chapter 219, Session Laws 1917, supra, the Legislature was dealing specifically with appeals to the Supreme Court of this state in civil cases. ¡There is nothing either in the title to said act nor in the body thereof that indicates an intention that said act shall operate in any way to affect the methods of appeal as theretofore existing in criminal cases. Only by implication can it be held that the Legislature'intended;-'by the enactment of chapter 219','' Raws l'9l'-7/-t'o substitute an oral notice in the trial court for the written, notices on the clerk and county attorney, spe-; ciflcally provided in section 5992, Revised Laws 1910, Criminal Procedure, and for the summons in error provided in section 5997, Revised Laws 1910, Criminal Procedure. If the Legislature, by chapter 219, Laws 1917, having abolished summons in error in civil cases, thereby left that provision of, section 5997, supra, Criminal Code, that “the sutpmons .in error shall be served upon the Attorney General,'-i-mless1 the same is waived as in other cases,” wholly inoperative, it thereby deprived a defendant in a criminal case of one of the methods of giving notice of appeal that existed prior to the enactment of said chapter, and the effect of such a holding would be that said chapter, by implication, repealed section 5997, Revised Laws 1910, as to such notice. We do not believe this was the legislative intent. It is a well-established rule of statutory construction that repeals by implication are not favored.

Section 5997, supra, specifically provides that a party desiring to appeal to the Criminal Court of Appeals may serve a summons in error upon the Attorney General, unless the same is waived as in other cases. We believe this provision, with the aid of other statutes relative to the issuance and service of a summons, may be left operative, although section 5289, Civil Code, is repealed. The fact that summons in error was abolished in civil causes merely, in the face of this plain provision in section 5997, certainly did not have the effect by implication to abolish the office and purpose of a summons in error in criminal cases, as the same had existed for the period of nearly four years prior to the enactment of chapter 219, Laws 1917, without any reference in chapter 219; or in the title to said act, to appeals to the Criminal Court of Appeals, or to any provision of the Code of Criminal Procedure, and this, too, although section 5989 specifically provides—

“An appeal from a judgment-in a criminal action may be taken in the manner and in the cases prescribed in this article” (referring to article 15, c. 62, Revised Laws 1910, the article on appeals in criminal cases).

If said chapter 219 is so conflicting with the provisions of section 5997, Revised Laws 1910, as to abolish the service of summons in error on the Attorney General, it is equally as conflicting with the provisions of section 5992 as to the giving of notice of appeal to the court clerk and the county attorney. If it repeals by implication section 5997, it necessarily must by implication repeal section 5992, and both of said sections must fall, and a party desiring to appeal from a criminal judgment is relegated solely to the giving of the notice required by chapter 219, Laws 1917. If such were the holding of this court, 95 per cent, of the appeals now pending in this court would necessarily have to be dismissed, because in that percentage of cases only the notices required by section 5992 have been given.

In the case of Mann v. State, 17 Okla. Cr. 703, 186 Pac. 1098, where the appeal was taken subsequent to the taking effect of chapter 219, Laws 1917, it is held:

“Where appellant within the time allowed for taking the appeal served no notice of appeal upon the clerk of court or county attorney, as provided by Rev. Laws 1910, § 5992, and no summons in error was issued and served upon the Attorney General, nor any waiver of issuance and service ever made by him within section 5997, or any general appearance entered by him, the Criminal Court of Ap--peals has no jurisdiction to entertain the appeal on its merits, and will dismiss it.”

To the same effect are the following cases: Robinson v. State, 17 Okla. Cr. 717, 189 Pac. 763; State v. Childers, 17 Okla. Cr. 627, 191 Pac. 1043; Sarten v. State, 18 Okla. Cr. 107, 193 Pac. 743.

We conclude, therefore, that it was not the legislative intent, nor did chapter 219, Session Laws 1917, repeal by implication merely the specific provisions of the Criminal Code of this state, to wit: Sections 5989, 5992, and 5997, Revised Laws 1910, relating to the manner and methods of taking an appeal in criminal causes to the Criminal Court of Appeals of this state, and of giving notice thereof.

For the reasons stated the motion of the Attorney General to dismiss this appeal is sustained, and the appeal is hereby dismissed.

DOYLE, P. J„ and BESSEY. J., concur.


text:
    ED. VANN v. STATE.
    No. A-3538
    Opinion Filed April 25, 1921.
    (197 Pac. 182.)
    (Syllabus.)
    HOMICIDE — Murder—Life Sentence — Sufficiency of Evidence. In a prosecution for murder, evidence examined and considered, and beld to sustain a verdict of guilty of murder, with imprisonment for life as the punishment.

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

    Ed Vann was convicted of murder, and he appeals.
    Affirmed.

      F. W. Jacobs, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Ed Vann, herein referred to as the defendant, was by information charged with the crime of murder, committed by shooting Augustus Joseph in Creek county,- on or about the 19th day of June, 1918. He was duly arraigned, and upon a plea of not guilty he was tried, convicted of murder, and his punishment assessed at imprisonment for life in the penitentiary. From the judgment rendered in accordance with the verdict he appeals.

No brief has been filed, and we have not been favored with an oral argument in behalf of the defendant. The grounds of the motion for a new trial, and assigned as error in the petition, question the sufficiency of the evidence to sustain the verdict.

A substantial statement of the testimony of each witness who testified in the case is as follows:

Andrew Ferguson testified:

“I live in Creek county near Edna, within hallooing distance from the house of Augustus Joseph. The old man lived in a log house. His son lived with him, also a granddaughter. At the time of the homicide the defendant, Ed Vann, was staying there. The evening old man Joseph was killed I was on my. way to church, and I noticed that the old house where old man .Joseph kept his mules was on fire. I went to the tent, where his boy generally stayed, and no one was there, so I called to the house, and no one answered. Then I went down to the old house and looked in. Old man Joseph was lying on the floor dead. The house overhead was burning. ’ I called, whooped, and hallooed, and no one answered. Then I head a noise like horses running behind the old house to the north, and I called again, ,and did’nt get any answer, so I went to the church about one-half mile north, and notified the people, and five came back to the fire with me. We found Clem Dixon and the defendant there. They had taken the body out/ of the house. Then we phoned to Reggs for the officers,' and they came, and we questioned the defendant, and hd -.said that he went for the mules that evening, and left two oil men at the house in close conversation with the old man. He said one of the men had on a blue serge suit and a straw hat, and his clothes seemed to be dirty with oil, and the other man had a blue overall suit on and a cap. We found a shotgun shell lying near 'the house, and asked the defendant where it came from. He said early that morning he shot a chicken for breakfast. The shell and the wadding seemed to be perfectly dry, and it had rained off and on that day until about 4 o’clock. There was seven or eight bales of hay upstairs in the old stable. I was present when the officers searched old man Joseph’s house. They found a double-barrel shotgun and a Winchester rifle, Old man Joseph had been shot in the neck with a shotgun. The only stock the old man had was a pair of mules.”

Clem Dixon testified:

“I live north of old man Joseph’s house, about half a mile, near the church. That day between sundown and dark the defendant passed my place, going west in a wagon. He was riding with my brother-in-law, coming from church. About an hour later I was at Gus Hallibut’s, not quite half a mile north from where old man Joseph lived. The defendant, riding a mule and leading another, came up and said, ‘I believe our house is afire.’ We got up and went out to where he was. He said, ‘Get on one of the mules and ride. I got on one of the mules and we rode as hard as we could go, and down about the field he said, ‘There is nothing but that old house burning.’ We went on, and when we got there I started towards the fire. He said, ‘There ain’t nothing out there to hurt about.’ I heard some chickens, and I said, ‘There áre some chickens in there.’ I went and looked in the old house. The fire was overhead, and I saw old man Joseph lying there. I called him, but he did not answer, so I grabbed hold of him to pull him out. He was so heavy I didn’t pull him the first pull, so the defendant helped me pull him gat of, the house. I looked around, the ,old man’s hat was lying out near the house they lived in, I said, ‘I believe this old man was shot, and somebody dragged him in this old house, aiming to burn him up.’ He said, ‘Yes; that is about it.’ So I began to halloo. He said, ‘You reckon if we would shoot they would come any faster?’ I said. ‘Yes; I believe they.would.’' He went into the house and got a Winchester, and comes out the door and shoots straight up. Then it was not long before people began to gather.”

Aban Scott testified:

“I live 10 miles southwest of -Beggs. Old man .Joseph lived about half a mile southwest of me on the same place. The defendant passed my place in a wagon with Clem Dixon’s people before sundown the night old man Joseph was killed. He hallooed to me, and asked me for my wagon. That night after “services had started at the church he came back, riding a mule. He said: T stayed a long time, didn’t I? Do you reckon I will get to church in time for services?’ I said, T reckon it will be over by the time you get there.’ He said, T would have made it back sooner, but I had to go into the bottom to look for these mules; where do you reckon I found them?’ I said, ‘Where?’ He said, T found them in the school yard; furthermore, I guess you know one thing — Mr. Joseph sure had a lots of company at home.’ My little children asked him who were there, men or women. He said,‘Men,’ and they said, ‘Who were the men?’ He said, ’Oil. men.’ Well, he rode on a little piece further, and said, ‘Look here; I see a light down there in your field.’ I said, ‘I guess it is an automobile light.’ He said, ‘You come her«; it is somebody’s house; come and look.’ Well, we looked, and he said, ‘Don’t you believe that is somebody’s house?’ The children said, ‘Ed, do you suppose that is your old house?’ He said, T will go on back.’ I said, ‘there is harness there in that barn?’ He said, ‘Oh, no; I will go back; I wonder where poor old man Joseph is at.’ He went back, hallooing fire, towards Gus Hallibut’s house. I went on behind him, and when I got there they had the old man out. The fire was on his clothes; his pants were, burned; there was a gunshot wound in his neck, and some shot in his jaw. I said to the defendant, ‘Ed,'bring that lantern here.’ He said, T can’t stand that,’ and I said, ‘What kind of a’ hole do you think that js. on this old man ?’ He said, ‘A bullet.’ I said, ‘No; this was a shotgun.’ We all stepped back, and I said, ‘Ed, where were the men you saw?’ He said, ‘Right where the old man sat, on this .box.’ I said, ‘If you were to see these two men again, would you know them?’ He said, T don’t know; they would go off and disfigure themselves,’ I said, ‘Something is got to be' done about this.’ He said, ‘They are gone, long gone. One had a blue overall suit on and a' cap, and the other had a navy blue suit and a straw hat on.’ I said, ‘Well, do you suppose they are down in the bottom?’ He s¡aid, ‘They, are done gone.’ I said, ‘Did they have any gun?’ He said, T didn’t see any gun; if I would say they1 hdd a gun I would tell a lie.’ I said, ‘Maybe they got his gun and shot him.’ He said, ‘No; there wasn’t but one shell on the place, and I killed a chicken with it this morning.’ I examined the tracks; there were two mule tracks straight across the field from old man Joseph’s house to my house. Ed Vann, the defendant, and old man Joseph were cropping together that year, and the defendant lived with old man Joseph.”

Gus Hallibut testified:

“I live about 700 yards from the place of the killing. Old man Joseph had a pair of mules. On the day he was killed his mules were near my house. Between 6 and 7 o’clock that evening I heard old man Joseph calling the mules, and they went towards his house. A couple of hours later I heard a gunshot. It went off like it was; shot in a hollow tree. About a half hour later, when they commenced hallooing, I went over to Joseph’s place. When I got close I saw a fire, and I found Ed Vann, the defendant, and Clem Dixon there. The old man was. lying there dead, with a gunshot wound in his neck and a few shot entered his face.”

Edward Dawson testified:

“I live near Edna. I was walking the half section line, going to church, about a half an- hour by sun, and saw old man Joseph sitting near the fence in his yard. No one else was there. Andrew Ferguson came to the church with the news about the killing. It must have been about an hour later, I guess. I went back, -and the old man was lying dead, not far from the door of the old barn, and I told them they had better pull the body a little further from the fire.”

Frank Joseph testified:

“My age is 21 years. August Joseph was my father. I went to a supper the night before the day of the killing. The defendant. Ed Vann, started from home with me. Before we left he asked my father for some money. My father told him he had some money, but he wanted to keep it to clean up the crop; that Monday he was going to buy some groceries, and later in the week he would go to town and get some money and let him have some. The defendant said, ‘All right,’ and we started across the field. He said, T am getting tired of this way of doing.’ I said, ‘How is that, Ed?’ He said, 'I am going to leave before long anl I am liable to get somebody before I leave.’ I said, ‘Ed, I would not do that; you know how it is when a fellow is in trouble; it is. hard to get out.’ He .said, ‘Yes, but I know my business.’ We went on to Gus Hallibut’s, and stopped there. The next morning I stopped a few minutes at home. about 9 o’clock. My father had a Winchester rifle and a 12-gauge shotgun. There was only one, load, and it was in the shotgun. It had No. 6 shot. My niece was up at Ab Scott’s home that day. My father and Ed never had any trouble that I know of.”

Andrew Ferguson, recalled, testified:

“While I was milking that evening about dusk, I hearl a gun fire, and it was about two hours after that, on my way to church, that I discovered the fire.”

Clem Dixon, recalled, testified:

“The next day we measured the tracks of the mules. We rode from Hallibut’s to the' old man’s house. The tracks from there went angling across the field to Ab Scott’s. They were the same mule tracks.”

F. L. Garrison testified:

“I live at Beggs. I am constable in Okmulgee county, The night Augustus Joseph was killed I was called out there. When we got there it was about 11 o’clock. I talked to the defendant. He said he left the place just a few minutes before old man Joseph was killed; that he went' to the pasture for the mules, and saw a fire over here, and he and another fellow came back. The other fellow jerked the door open, and found old man Joseph lying dead in the bam. He also said that he heard some shots that evening and that old man Joseph had shot a chicken that morning with bis shotgun. I examined the shotgun, and found that it had been freshly fired. I examined the shell picked up in the yard, and it was dry. It had rained that day. There was a pool of blood where the old man was shot. He was sitting out in the yard, the mark of the chair was there, where he fell over, and his hat was bloody. 'There was a trail, showing that something had been dragged from there to the barn. I arrested Ed Vann that night, and brought him to Beggs and turned him over to the officers of Creek county. The next day, I, with the sheriff, examined the place and found the tracks of two mules leading from Joseph’s house northeast, almost in a direet line to Gus H'allibut’s place, and in the direction of Ab Scott’s place. The tracks showed that the mules were running. I also found tracks going back that corresponded with those going towards Hallibut’s house.”

When the state rested, the defendant demurred to the evidence, and asked the court to direct a verdict, which the court refused to do. The defendant did not offer any evidence.

The record is voluminous, but the foregoing sufficiently indicates the nature and character of the testimony developed at the trial.

We have carefully read all the testimony, and upon the undisputed facts and circumstances which evidence shows we cannot resist the conclusion that the verdict was fully warranted by the evidence, and, in our opinion, no other verdict could have been reached upon a dispassionate and intelligent consideration of the evidence in the case. A consideration of the whole record discloses no reversible error, and, accordingly, the judgment of the trial court must be, and is, affirmed.

MATSON and BESSEY, JJ., concur.


text:
    JIM WADE v. STATE.
    No. A-3533
    Opinion Filed April 27, 1921.
    (197 Pac. 180.)
    (Syllabus.)
    1 INDICTMENT AND INFORMATION — Preliminary Examination —Basis' for Information in Felonies. Under; Const, art. 2, § 17, providing for the prosecution of felonies by information, after examination and commitment before an examining magistrate, or the defendant having waived such preliminary examination, it is the fact there was a preliminary examination, or a waiver thereof and a judicial determination thereon by the examining magistrate that the offense charged in the complaint, or that a felony other than that charged, as shown by the examination, has been committed, and that there is sufficient cause to believe the defendant guilty thereof, that authorizes the county attorney to file an information for the offense charged in the complaint when an examination has been waived, or for the offense shown by the evidence on the examination, for which the defendant was held to answer.
    2. PRELIMINARY TRIAL — Complaint—Requisites. The complaint-before the magistrate need not state the offense charged in technical language, nor in such specific terms as is required in an information, and is sufficient where the jurisdictional facts appear, including a statement in ordinary language of the acts or omissions constituting the offense charged.
    3. ROBBERY — Sufficiency of Evidence. In a prosecution for robbery, the evidence examined, and held sufficient to support the verdict of conviction.

      Appeal from, District Court, Le Flore County; W. H. Brown, Judge.

    Jim Wade was convicted of robbery in the first degree, and he appeals.
    Affirmed.

      Tom W. Neal and White <& Reid, for plaintiff in error.

      S. P. Freeiing, A tty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment rendered upon a verdict of a jury finding the defendant, Jim Wade, guilty of robbery in the first degree and fixing his punishment at 10 years’ imprisonment in the penitentiary.

The information in substance charged that Jim Wade did in Le Flore county on or about 'the 1st day of September, 1918, commit the crime of robbery in the first degree, in that he did then and there unlawfully, wilfully, and feloniously make ah assault upon the person of one C. E. Evans, and by means of force and fear of immediate injury to his person, and by threatening to shoot the said C. E, Evans with a pistol if he persisted, the said Jim Wade did then and there feloniously take from the possession and immediate presence and against the will of the said C. PJ. Evans the sum of $53, lawful money of the United States, the property of the St. Louis & San Francisco Railway Company, with the felonious intent then and there to convert the same to his own use and to deprive the said owner permanently thereof.

The first error assigned is that the court erred in overruling the motion to quash the information.

The defendant before pleading to the information filed a motion to set aside or quash the information upon the ground that no preliminary examination has been had or waived by the defendant for the offense charged in the information, which charges an offense different from that stated in the complaint before the examining magistrate, and for this reason the court is without jurisdiction to try the defendant upon the information.

The only evidence introduced in support of said motion was a complaint filed on the 10th day of September, 1918, before one S. T. Miner, justice of the peace of Tali-' hina township, Le Flore county, in which it was charged:

“That Jim Wade did in Le Flore county, state of Oklahoma, on or about the 1st day of ¡September, 1918, and prior to the making of this complaint, commit the crime of highway robbery in manner and form as follows, to wit: On the morning of the 1st said Wade did without authority of law by threats with a pistol in his hand pointed at one F. Evins, the operator at the Frisco station, compel him to deliver to the said Wade $65 in silver and currency money of the United States, contrary to,” etc.

—which complaint was sworn to by H. A. Daly. The in-dorsement thereon is as follows:

“It appearing to me that the offense in the within information has been committed, and that there is sufficient cause to believe that the within-named 'Jim Wade is guilty thereof, I order that he be held to answer the same; that he be admitted to bail in the sum of one thousand dollars and be committed to the sheriff until said bail is given.

“S. T. Miner, Justice of the Peace.”

Under the constitutional provision (section 17, art. 2) and Code of Criminal Procedure (section 5680, Rev. Laws), it is the fact that there was a preliminary examination or a waiver thereof and a judicial determination thereon by the examining magistrate that the offense charged in the complaint, or that a felony other than that charged as shown by the examination has been committed, and that there is sufficient cause to believe the defendant guilty thereof, that authorizes the county attorney to file an information for the offense charged in the complaint when examination has been waived, or for the offense shown by the evidence on the examination, for which the defendant was held to answer. Muldrow v. State, 16 Okla. Cr. 549, 185 Pac. 332.

The defendant in his brief asserts that the complaint does not charge the crime of robbery, because:

“There is no allegation that the property taken was in the possession of F. Evins, or that it was taken from his person, or that the taking was without his consent, or that there was any fear of immediate personal injury upon the part of Evins, or that the property taken was not the property of the defendant, and that the ownership of the property is not alleged; that it simply charges the defendant with the offense of pointing a pistol at another.”

It is well settled that, where the defendant waives the right to an examination, and no evidence is offered by the state, the charge in the information must substantially be the same as that stated in the complaint. However, it is not necessary that all the details and technical allegations required in an information should be stated in the complaint before the magistrate; it is sufficient that the jurisdictional facts appear, including a statement in ordinary language of the acts or omissions constituting the offense intended to be charged.

Our Penal Code defines the crime of robbery as follows :

“Robbery is a wrongful taking of personal property in the possession of another from his person or immediate presence and against his will, accomplished by means or force or fear.” Section 2364, Rev. Laws.

We think that all the elements constituting the crime of robbery are sufficiently stated in the complaint, and, while not stated in technical language, the crime is stated in ordinary language sufficient to inform the defendant of the nature and cause of the accusation against him.

The record does not show whether or not the defendant waived his' right to a preliminary examination, or whether or not an examination was held, and in the absence of the record all presumptions favor the regularity of the proceedings prececüng the filing of the information.

The evidence shows that about 3 o’clock on the morning of September 1, 1918, C. E. Evins was in charge as telegraph operator of. the Frisco Railroad station at Talihina. He testified:

“I was sitting at the desk writing. The defendant appeared at the window and said, ‘Just hand it over.’ He put a gun up in my face and said, ‘Just give me your change.’ I got up, and he said, ‘Put it in this sock,’ and he handed me a sock. I took ft and went and got all the silver in the till, something about $40. I took it back to him, and he said, ‘Take it back and put in the greenbacks.’ 1 said, ‘All right,’ and I did. It all amounted to $65.25. I took it back to him, and he said, ‘You get over in that corner,’ and I did. He had on a blue jumper and a blue handkerchief tied over the lower part of his face. My best judgment is the defendant is the man that robbed me. I say that from his eyes and hair. The gun was an extra long barrel.”

Here witness was handed the pistol taken from defendant and identified the pistol as the gun used in the robbery.

Two or three witnesses testified to seeing the defendant in Talihina the evening before the robbery.

The next, day the blue overalls and blue jumper and a blue handkerchief were found in! a thicket1, about 300 yards from the station.

Tobe Elam, a witness for the state, testified:

“I know the gun introduced in evidence. I sold it to the defendant, Jim Wade. I don’t know whether it was in August or September. I came back to Howe from South Dakota the 19th or 20th of August. I was not back many days before I sold it to him. I markéd the gun so if' it was ever stolen from me I would know it. You can see the mark on the gun right there. At the time I sold him the gun the defendant bought a blue jumper at Hollidays, in Howe, and told me that he bought it so people would not see the gun on him.”

For the defense K. H. Wood testified:

“Tobe Elam told him he had a good gun he wanted to sell. I told Jim Wade, and he said he would buy it. The next morning Tobe brought the gun down and the trade was made. I believe it was Friday, the 6th or 7th of September. It was before Jim Wade moved his things away from Howe.”

As a witness in his own behalf defendant testified:

“I work over at Dick Ridge mines, southeast of Howe. I left there on the last Friday in August in a wagon with Tom Knight. He is dead now. We got to Howe Thursday, and on ¡Saturday we got to Talihina, between 3 and 5 o’clock. Wp went out to the wagon- yard and put up. We went down to Prices and had supper. Then we went to a show, and after the show we went back to the wagon yard and went to bed, I did not rob the depot. The first I knew of it was when I was arrested at Wilburton. The pistol in evidence is mine. I bought it from ITobe Elam about the 5th, 6th or 7th of September, 1918.”

Some exceptions were taken during the course of the trial to the admission of evidence bearing upon issues in the case, but. we are of the opinion that none of] them were well taken. Upon the whole case we see no reason to doubt that this conviction was justified by the evidence.

Finding no prejudicial error, the judgment is affirmed.

ARMSTRONG and MATSON, JJ., concur.


text:
    In re OPINION OF THE JUDGES.
    No. A-3976
    Opinion Filed May 4, 1921.
    (197 Pac. 546.)
    (Syllabus.)
    JURY — Capital Crimes — Plea of Guilty — 'Assessment of Punishment by Court. The statute providing (section 2319, Rev. Laws 1910) that upon a plea of guilty of murder the court shall determine whether the defendant shall Ibe punished toy death or by imprisonment for life at hard labor is constitutional and valid, and where a defendant who.has been informed against for a capital crime in a court of competent jurisdiction pleads guilty, such court is authorized to pronounce judgment and sentence against such defendant according to law. In such a case there is no issue to be submitted to a jury.
   Opinion of the Judges, rendered in response to the' request of the Governor as to conviction and death sentence of William Tait.

Hon. J. B, A. Robertson, Governor of the State of Oklahoma

—'Sir:

The Judges of the Criminal Court of Appeals respond-Goben, drove the car to a creek, and he told his codefendant, ing to your official communication, as Governor of Oklahoma, to this court, which presents for consideration of the Judges of the court the record of conviction of William Tait, who was, on April 14, 1921, by the judgment of the district court of Comanche county, sentenced to suffer death by electrocution, and fixing June 14, 1921, as the date of execution, with the request that we give an opinion thereon, as provided by section 5969, Rev. Laws, we would hereby respectfully submit the following opinion of the Judges:

The Code of Criminal Procedure of the state of Oklahoma provides that:

“The judge of a court at which a conviction requiring a judgment of death is had, must, immediately after the conviction, transmit to< the 'Governor, by mail or otherwise, a statement of the conviction and judgment, and of the testimony given at the trial.” Section 5968, Rev. Laws.

And that:

“The Governor may thereupon require the opinion of the Judges of the Criminal Court of Appeals, or any of them, upon the statement so furnished.” Sec. 5969, Rev. Laws.

C. W. Simpson, court clerk of Comanche county, duly certified a copy of the information and the judgment and sentence, and a written confession subscribed and sworn to by the defendant on March 31, 1921; also a transcript of the testimony of the defendant William Tait, as a witness for his codefendant, C. W. Goben, upon the trial of said codefendant. In accordance with the requirement of section 5968, Rev. Laws, Hon. A. S. Wells, judge of the district court of Comanche county, transmitted the same to the Governor.

The record so transmitted shows that on April 12,1921, Fletcher S. Riley, county attorney of Comanche county, filed an information in the district court of said county, jointly charging William Tait and C. W. Goben with the murder of one Russell ¡Sprague, alleged to have been committed in said county on the 25th day of March, 1921; that on the 12th day of April, 19,21, the defendant William Tait, present in person and by his attorney, in open court, was duly arraigned upon the charge of murder, and said information was by the court clerk read to the said defendant William Tait. Thereupon the defendant William Tait in open court entered a; plea of guilty of the; crime of murder as charged in said information. Thereupon the court fixed the 14th day of April, 1921, as the time at which judgment should be pronounced upon his plea of guilty, at which time the court pronounced judgment and sentenced the defendant William Tait to suffer death by electrocution within the walls of the penitentiary at McAlester, on the 14th day of June, 1921.

In his written confession, subscribed to and verified by his oath on the 31st day of March, 1921, he admits that he fired the fatal shot, and that the murder was committed in the perpetration of a robbery. The transcript of testimony submitted shows that the defendant William Tait, called as witness on the trial of his codefendant, C. W. Goben, and being duly sworn, testified that, at a farm about 11 miles east of Lawton, in the presence of his co-defendant, C. W. Goben, he hit the deceased, Russell Spra-gue, on the head with the butt end of a six-shooter; that Sprague fell to the floor, and he took from his person $13 in bills; that he and said codefendant carried deceased from the house and put him in a car, that his codefendant, “Right here'is where we had better put him;” that they took the' deceased out of the car and carried him to the river. He was then asked, “What took place?” and answered, “I took the rope off of him, and I shot him through the head and rolled him in this river.”

It has been uniformly held by this court that the statute above quoted contemplates an advisory opinion where an appeal has not been taken in a capital case, and where the death penalty has been assessed.

The questions presented' are, Has there been an observance of all the formalities of law essential to the taking of human life? Or has the trial, conviction, and sentence of death been in accordance with the law of the land? Upon a very careful examination of the record before us we find that the information sufficiently and correctly charges the crime of murder; that the defendant had the benefit of counsel, and, without considering his admissions and confessions of guilt, his testimony as a witness is alone conclusive of his guilt of the crime charged. We further find that all the formalities of law essential to the infliction of the death penalty have been fully observed.

The Penal Code of the state of Oklahoma provides:

“Any person convicted of murder shall suffer death, or imprisonment at hard labor in the state penitentiary for life, at the discretion of the jury. Upon trial of an indictment for murder, the jury, if they find the defendant guilty, must designate in their verdict whether he shall be punished by death or imprisonment for life at hard labor, and foe judgment of the court shall-be in accordance therewith.But upon a plea of guilty the court shall determine the same.” Section 2319, Rev. Laws.

Under this provision of the statute the question presented for our consideration is whether, according to a proper judicial construction, the concluding clause of the above section authorized the district court to pronounce the judgment and sentence of death upon the defendant’s plea of guilty, or whether, on the contrary, it is necessary, under the statute, to submit the question whether he shall be punished by death or imprisonment for life at hard labor to the discretion of a jury.

In a former opinion of this court, In re Opinion of the Judges, 6 Okla. Cr. 18, 115 Pac. 1028, construing this provision, it was held:

“The statute providing * * * that upon a plea of guilty of murder the court shall determine whether the defendant shall be punished by death or by imprisonment for life at hard labor is constitutional and valid, and where a defend- and who has been informed against for a capital crime in a court of competent jurisdiction'pleads guilty, such court is authorized to pronounce judgment and sentence against such defendant according to law. In such a case there is no issue to be submitted to a jury.”

In our opinion there is no reason why this provision ot the statute is not constitutional and valid. A conviction of crime may be had in three ways; either by the verdict of a jury, or by findings of fact by the judge where the jury is waived (Const, art. 7, § 20), or by a plea of guilty. And where a defendant who is indicted or informed against for a capital crime, in a court of competent jurisdiction, pleads guilty, the court is authorized to pronounce judgment and sentence against such defendant, and in its discretion may impose the extreme penalty of the law. The authority thus granted is not in any degree affected or controlled by the previous provisions contained in. said section 2319, Rev. Laws. The provisions, preceding the concluding clause of the section above quoted apply only so cases where there is a trial upon an indictment or information for murder on the issue raised by a plea of not guilty.

It is evident that the foregoing provisions of the section quoted were not designed'to abrogate the well-established rule of the common 1'aw by which a party indicted for a capital crime may" enter a plea of guilty thereto, if he sees fit so to do. In such cases there is no issue"to 'oe submitted to a jury on which a verdict may be rendered or the punishment assessed. It is for the court to determine whether the defendant shall be punished by death or imprisonment for life at hard labor.

Upon the record before us we are of opinion that the defendant William Tait has been adjudged to suffer the extreme penalty of the law in the manner prescribed by law, and his conviction and sentence of death has been in accordance with the law of the land.

Opinion by DOYLE, P. J., MATSON and BESSEY, JJ., concurring.