text:
    LUTHER HURD v. STATE.
    No. A-6945.
    Opinion Filed September 21, 1929.
    (281 Pac. 150.)
    Anglin & Stevenson and Forrest M. Darrough, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted on a charge of possession of intoxicating liquor, and sentenced to serve a term of imprisonment in the county jail of Seminole county for 30 days, and to pay a fine of $50. Motion for new trial was filed, considered, and overruled, and defendant has appealed to this court.

Briefly, the testimony of the state is that the deputy sheriff went out to the farm on which the defendant was living and searched defendant’s home and did not find any intoxicáting liquors. But some distance from defendant’s home, in and near a bam, he claims to have found a quantity of whisky, sugar and some mash and other things to make whisky.

On cross-examination the defendant was asked if he knew whose barn it was where the stuff was found, and he answered: “Jim Hurd’s.”

“Q. Do you know whose place it was? A. No, sir; it was Jim Hurd’s place.”

Witness further stated he did not know to whom the whisky, mash, and sugar found belonged; he did not see the defendant in possession of or having anything to do with it; that when he went to the place the defendant was coming toward his home driving some hogs; that the defendant had a barn which he used which was about 50 yards from his house. Witness further stated there was a large branch between this barn, where they found the whisky, and the house defendant lived in; that he had hard feelings against the father of the defendant.

Duck Worth testified on behalf of the defendant that he was acquainted with the place where the defendant lived; had known it all his life; that he lived near the barn until the house burned in 1925; that the barn where the whisky was found is almost a quarter of a mile from defendant’s home; that the defendant’s barn is about 50 yards from his house.

E. L. Lancaster testified he knew the defendant, and that he was with the defendant the morning he was arrested ; that the deputy sheriff asked the defendant whose barn it was, and he told him it belonged to his mother; that the hay and grain in the bam belonged to Claud Hurd; that the barn is around a quarter of a mile from Luther’s house. The testimony shows that Lancaster was a brother-in-law of the defendant.

The defendant in his own behalf testified he had been living on a portion of the farm, which his mother owned, of 640 acres; that he came back from Holdenville the morning before the officers were out there; that he did not have any stuff in the barn where they found the whisky; that the hay and other grain in the barn belonged to Claud Hurd; that nothing found by the officers that morning was his, nor did he have anything to do with putting them in the barn, or locating them near the barn; that he had never seen anything found by the officers until they showed them to him the morning they were out to the farm; he had been living on the place for about four months.

This is, in substance, the testimony of the state and the defendant.

There is no question but that the officers found whisky, mash, and sugar in and near the barn about a quarter of a mile from where the defendant was living; there is not any testimony to show that this defendant had possession of the barn or any of its contents. The testimony as to the owner of the hay and grain in the bam is that it belonged to Claud Hurd; the defendant testifying positively that he did not have anything to do with the barn, did not own the hay and other grain in the barn, and did not have anything to do with the whisky, sugar, or mash claimed to have been found by the officers.

In this case a jury was waived, and the case submitted to the court.

The defendant assigns six errors alleged to have been committed by the trial court. The first is that said court erred in overruling plaintiff in error’s motion for a new trial;, second, the judgment of the court is contrary to the law; third, the judgment of the court in contrary to the evidence. These assignments of error will all be considered together, as they all relate to the question as to whether or not there is sufficient evidence to sustain the judgment.

The charge of which the defendant was convicted was having possession of certain intoxicating liquors with the unlawful intent then and there on the part of the said Luther Hurd to barter, sell, and give away said whisky to others.

After a careful reading of the testimony, we hold that the court erred in overruling the motion of the defendant for a new trial; that the judgment and sentence of the court is contrary to the law and the evidence. Luck v. State, 38 Okla. Cr. 322, 260 Pac. 1118; Wheeler v. State, 40 Okla. Cr. 92, 267 Pac. 282.

There being no competent evidence to sustain the judgment, the case is reversed.


source: Caselaw Access Project

author: PER CURIAM.'

license: Public Domain

text:
    JOHN WHITE v. STATE.
    No. A-7016.
    Opinion Filed September 21, 1929.
    Rehearing Denied October 12, 1929.
    (280 Pac. 1119.)
    D. K. Cunningham and N. S. Corn, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.'

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Dewey county on a charge of grand larceny, and was sentenced to serve a term of one year in the state penitentiary.

The record discloses that at the time charged defendant committed the larceny of 70 bushels of wheat, of the value of $80. No briefs have been filed by plaintiff in error. An examination of the record discloses no jurisdictional nor fundamental error.

The case is affirmed.


author: PER CURIAM.

text:
    BOYD WHITE v. STATE.
    No. A-6967.
    Opinion Filed September 21, 1929.
    (280 Pac. 1119.)
    Bristow & Johnson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of driving an automobile while intoxicated, and was' sentenced to serve a term of six months in the state penitentiary. No briefs have been filed by plaintiff in error. An examination of the record discloses no jurisdictional nor fundamental error.

The case is affirmed.


author: PEE CUBIAM.

text:
    SAM WINTERS v. STATE.
    No. A-6898.
    Opinion Filed September 21, 1929.
    (280 Pac. 1119.)

      F. L. Welch, for plaintiff in error.
    Hal Welch, Co. Atty., for the State.
   PEE CUBIAM.

Plaintiff in error was convicted in the district court of Choctaw county on a charge of grand larceny, and his punishment fixed at imprisonment in the state penitentiary for six months.

The appeal in this case was filed in this court on the 10th day of February, 1928. 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, the cause is affirmed.


author: PEE CUEIAM.

text:
    WARD SHAW v. STATE.
    No. A-7020.
    Opinion Filed September 21, 1929.
    (280 Pac. 1118.)
    Geo. W. Buckner, for plaintiff in error.
    Dan Mitchell, Co. Atty., for the State.
   PEE CUEIAM.

Plaintiff in error was convicted in the district court of Garfield county on a charge of perjury, and his punishment fixed at a term of six years in the state penitentiary.

The appeal in this case was filed in this court on the 14th day of May, 1928. 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 his substantial rights.

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


text:
    ARTHUR SIMPSON v. STATE.
    No. A-6829.
    Opinion Filed September 21, 1929.
    (280 Pac. 1118.)
    John T. Levergood, for plaintiff in error.
    Randall Pitman, Co. Atty., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the superior court of Pottawatomie county, and his punishment fixed at 32 years in the state penitentiary.

The appeal in this case was filed in this court on the 25th day of November, 1927. 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, the cause is affirmed.


text:
    R. A. SMITH v. STATE.
    No. A-6956.
    Opinion Filed September 21, 1929.
    (280 Pac. 1118.)
    S. M. Smith, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of having the possession of intoxicating liquor, and was sentenced to serve a term of 30 days in the county jail, and to pay a fine of $50. No briefs have been filed by plaintiff in error. An examination of the record discloses no jurisdictional nor fundamental error.

The case is affirmed.


text:
    GEORGE WALTON v. STATE.
    No. A-6834.
    Opinion Filed September 21, 1929.
    (280 Pac. 1118.)
    Paden & Douglas, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of selling intoxicating liquor, and was sentenced to serve a term of 30 days in the county jail and to pay a fine of $50. No- briefs have been filed by plaintiff in error. An examination of tbe record discloses no jurisdictional nor fundamental error.

Tbe case is affirmed.


text:
    A. M. LONG v. STATE.
    No. A-7040.
    Opinion Filed September 21, 1929.
    (280 Pac. 1117.)
    E. D. Ellis and J. H. Warren, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for tbe State.
   PER CURIAM.

The plaintiff in error was convicted of removing distrained stock, and was sentenced to pay a fine of $50. No briefs have been filed by plaintiff in error. An examination of the record discloses no jurisdictional nor fundamental error.

The case is affirmed.


text:
    JIM McCAN v. STATE.
    No. A-6840.
    Opinion Filed September 21, 1929.
    (280 Pac. 1117.)

      John T. Levergood, for plaintiff in error.
    Randall Pitman, Co. Atty., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the district court of Pottawatomie county on a charge of murder, and his punishment fixed at imprisonment for life in the state penitentiary.

The appeal in this case was filed in this court on the 7th day of December, 1927. 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, the cause is affirmed.


text:
    J. D. MORGAN et al. v. STATE.
    No. A-6861.
    Opinion Filed September 21, 1929.
    (280 Pac. 1117.)
    Guy D. Talbot and Jack Aubuchon, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error were convicted of having possession of intoxicating liquor, and were each sentenced to serve 30 days in the county jail and to pay a fine of $50. No briefs have been filed by plaintiffs in error. An examination of tbe record discloses no jurisdictional nor fundamental error.

Tbe case is affirmed.


text:
    W. C. SHARP v. STATE.
    No. A-6909.
    Opinion Filed September 21, 1929.
    (280 Pac. 1117.)
    Tom W. Cheatwood, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of having possession of intoxicating liquor, and was sentenced to serve a term of 30 days in the county jail and to pay a fine of $50. No briefs have been' filed by plaintiff in error. An examination of the record discloses no jurisdictional nor fundamental error.

The case is affirmed.


text:
    LEE HOWE v. STATE.
    No. A-6971.
    Opinion Filed September 21, 1929.
    (280 Pac. 1116.)

      Scott Ferris and King & Crawford, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of driving an automobile while drunk, and was sentenced to serve a term of 10 months in the state penitentiary. No briefs have been filed by plaintiff in error. An examination of the record discloses no jurisdictional nor fundamental error.

The case is affirmed.


text:
    BOB JOHNS et al. v. STATE.
    No. A-6846.
    Opinion Filed September 21, 1929.
    (280 Pac. 1116.)
    Ray & Thomas, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error were convicted of having possession of a still; Bob Johns being sentenced to serve a term of ninety days in the county jail and to pay a fine of |150, and Bud Barclay was sentenced to serve a term of 60 days in the county jail and to pay a fine of $100. No briefs have been filed by plaintiff in error. An examination of the record discloses no jurisdictional nor fundamental error.

The case is affirmed.


text:
    ARNOLD JONES v. STATE.
    No. A-6910.
    Opinion Filed September 21, 1929.
    (280 Pac. 1116.)
    Tom W. Cheatwood, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of having the unlawful possession of mash fit for distillation, and was sentenced to serve a term of 30 days in the county jail and to pay a fine of $50. No briefs have been filed by plaintiff in error. An examination of the record discloses no jurisdictional nor fundamental error.

The case is affirmed.


text:
    HARROLD KILLINGSWORTH v. STATE.
    No. A-6969.
    Opinion Filed September 21, 1929.
    (280 Pac. 1116.)
    W. M. Howenstein, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of selling intoxicating liquor to a minor, and was sentenced to serve a term of 30 days in the county jail and to pay a fine of $50. No briefs have been filed by plaintiff in error. An examination of the record discloses no jurisdictional nor fundamental error.

The case is affirmed.


text:
    NEWTON LEE v. STATE.
    No. A-7034.
    Opinion Filed September 21, 1929.
    (280 Pac. 1116.)
    Ledbetter & Mounts, for plaintiff in error.
    Joe W. Howard, Co. Atty., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the district court of Noble county on a charge of a second violation of the prohibitory liquor law, and his punishment fixed at a fine of $50 and imprisonment in the state penitentiary for a period of one year.

The appeal in this case was filed in this court on the 24th day of May, 1928. 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 his substantial rights.

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


text:
    RAY DAGGS v. STATE.
    No. A-6810.
    Opinion Filed September 21, 1929.
    (280 Pac. 1115.)
    Wright & Gill, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of having possession of a still, and was sentenced to serve a term of 30 days in the county jail and to pay a fine of $50. No briefs have been filed by plaintiff in error. An examination of the record discloses no jurisdictional nor fundamental error.

The case is affirmed.


text:
    HENRY FROMCKE v. STATE.
    No. A-6978.
    Opinion Filed September 21, 1929.
    (280 Pac. 1115.)
    Bryan L. Mitchell, for plaintiff in error.
    Willis Cooke, Co. Atty., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Custer county on a charge of selling intoxicating liquor, and his punishment fixed at a fine of $350 and confinement in the county jail for a period of 30 days.

The appeal in this case was filed in this court on the 12th day of April, 1928. 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 his substantial rights.

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


text:
    FLOYD HAZELTINE v. STATE.
    No. A-6748.
    Opinion Filed September 21, 1929.
    (280 Pac. 1115.)
    Bristow & Johnson, for plaintiff in error.
    Wm. McFadyen, Co. Atty., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the district court of Caddo county, and his punishment fixed at 2% years in the state penitentiary. The appeal in this case was filed on the 8th day of September, 1927.

No briefs have been filed on behalf of the 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 a substantial right.

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


text:
    ROY HILE et al. v. STATE.
    No. A-7018.
    Opinion Filed September 21, 1929.
    (280 Pac. 1115.)
    A. W. Turner, for plaintiffs in error.
    A. L. Commons, Co. Atty., for the State.
   PER CURIAM.

Plaintiffs in error were convicted in the county court of Ottawa county on a charge of injuring melons, and their punishment fixed at a fine of $10 for each of them. The appeal in this case was filed in this court on the 12th day of May, 1928.

No briefs have been filed on behalf of plaintiffs in error, and no appearance was made for oral argument. Upon a careful examination of the record, we find no errors depriving the appellants of their substantial rights.

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


text:
    W. J. ADAMS v. STATE.
    No. A-6866.
    Opinion Filed September 21, 1929.
    (280 Pac. 1114.)

      Thomas W. Conner, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of transporting intoxicating liquor, and was sentenced to serve a term of 30 days in the county jail and to pay a fine of $50. No briefs have been filed by plaintiff in error. An examination of the record discloses no jurisdictional nor fundamental error.

The case is affirmed.


text:
    CYRIEL AKIN v. STATE.
    No. A-6934.
    Opinion Filed September 21, 1929.
    (280 Pac. 1114.)
    Justin Hinshaw, Roy Smith, and Tom W. Cheat-wood, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of assault with intent to kill,’ and was sentenced to serve a term of one year in the state penitentiary. The record discloses that at the time charged defendant made an assault upon Jack Lease with a knife, and cut and severely injured the said Lease.

Under the evidence, the defendant received less punishment than he deserved. No briefs have been filed by plaintiff in error. An examination of the record discloses no jurisdictional nor fundamental error.

The case is affirmed.


text:
    W. E. BECK v. STATE.
    No. A-6854.
    Opinion Filed September 21, 1929.
    (280 Pac. 1114.)
    Stalcup & Weaver, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of having possession of intoxicating liquor, and was sentenced to serve a. term of 60 days in the county jail and to pay a fine of $300. No briefs have been filed by plaintiff in error. An examination of the record discloses no jurisdictional nor fundamental error.

The case is affirmed.


text:
    JIM BORDEAUX v. STATE.
    No. A-6867.
    Opinion Filed September 21, 1929.
    (280 Pac. 1114.)
    John T. Levergood, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of manslaughter, and was sentenced to serve a term of five years in the state penitentiary. No briefs have been filed by plaintiff in error. An examination of the record discloses no jurisdictional nor fundamental error.

The case is affirmed.


author: DAVENPORT, J.

text:
    JACK HUNTER v. STATE.
    No. A-6917.
    Opinion Filed September 28, 1929.
    (280 Pac. 1113.)
    J. Q. A. Harrod and Laynie W. Harrod, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of having possession of intoxicating liquor with the intent to barter, sell, give away, and otherwise furnish the same contrary to the law, and was sentenced by the court to pay a fine of $50 and costs and to be imprisoned in the county jail of Canadian county for a period of 30 days. The record was perfected, and the case appealed to this court.

C. A. Pierce and Bill Hutchins testified on behalf of the state that they went to defendant’s home with a search warrant; they were officers; about the time Mr. Pierce got to the door he heard a noise like something coming out through the window; the officers went in the house and searched all the rooms in the house, all the closets, and other places around the house, and found no intoxicating liquor; when they went in the house they found the defendant sitting at a table writing; after they searched the house they went around to the side of the house and claim they found there on the ground pieces of a half-gallon fruit jar which had contained whisky; they claim they tasted it and it tasted like whisky. The quantity is not given, being estimated all the way from two or three tablespoons to probably a half pint. The witnesses for the state claim there was a little puddle on the ground; that the defendant stepped in it and mashed it into, the ground.

This is, in substance, the testimony of the state. At the close of the state’s testimony, the defendant demurred to the evidence for the reason the same was insufficient to show that the defendant had committed any erime whatsoever against the laws of this state, which demurrer was overruled, and defendant excepted. The defendant moved the court to instruct the jury to return a verdict of not guilty, which motion was overruled, and defendant excepted.

The defendant contends the court erred in overruling the demurrer to the evidence, and in overruling the defendant’s motion to direct- the jury to return a verdict of not guilty, and in overruling the defendant’s motion for a new trial.

An examination of the records in this case shows that the testimony of the state is wholly insufficient to sustain the judgment for possession of intoxicating liquors with intent to sell, barter, give away, and otherwise furnish the same in violation of law. There was not a sufficient quantity of whisky found to make it prima facie evidence that the defendant intended to barter, sell, give away, or otherAvise furnish to others; in fact the testimony is insufficient to show that the defendant had any quantity of whisky in his possession.

The information in this case charges possession of a certain quantity of intoxicating liquor, to wit, corn whisky, with the intent of the said Hunter to sell, barter, give away, and otherAvise furnish the same to others contrary to law. In cases of this kind, the specific intent to violate the prohibitory liquor laws being the gist of the offense, it follows that, before a conviction can be sustained, the state must allege and prove beyond a reasonable doubt, not only that the defendant had possession of intoxicating liquor, but also the unlawful intent to violate the provisions of the liquor laws. Maggard et al. v. State, 38 Okla. Cr. 320, 260 Pac. 1118.

Because the evidence is insufficient, the case is reversed.

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


author: EDWARDS, P. J.

text:
    HARVEY BREWER v. STATE.
    No. A-6592.
    Opinion Filed May 18, 1929.
    Rehearing Denied September 28, 1929.
    (280 Pac. 473.)

      Keller & Cameron, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Love county on a charge of assault with a sharp and dangerous weapon with intent to do bodily harm, and was sentenced to serve a term of one year and one day in the state penitentiary.

The record discloses that at the time charged defendant, Harvey Brewer, and a codefendant, J. D. Brewer, engaged in a difficulty with one Hosea Brown, in the course of which Brown was cut several times with a knife. The difficulty, in a measure, was brought on by Brown. The defendant interposed a plea of self-defense. While the evidence is conflicting, it sustains the verdict and judgment.

The first contention made is that the court erred in excusing on his voir dire examination the juror Gaylor. This juror stated that he had talked about the case to the father of the prosecuting witness but had formed or expressed no opinion. Counsel for the state suggested that he was disqualified, and over the objection of defendant’s counsel the juror was excused. The court acted properly in excusing this juror. It is settled by numerous decisions of this court that a defendant has no vested right to have any particular juror out of a panel. His right is that of objection rather than that of selection, and if the trial court is of the opinion that any juror is not fair and impartial or is for any reason disqualified he may excuse him either upon challenge of one of the parties or upon his own motion, without challenge. Whether or not a juror should be excused rests in the sound discretion of the court. Unless such discretion is abused, there is no error. Boutcher v. State, 4 Okla. Cr. 576, 111 Pac. 1006; Mathews v. State, 19 Okla. Cr. 153, 198 Pac. 112.

It is next argued that the court erred in permitting the state to offer in evidence a transcript of the testimony of the prosecuting witness taken at the preliminary, the witness being present in court and testifying. Upon this point the record discloses that the prosecuting witness Brown testified for the state. On cross-examination defendant sought to impeach him by showing that his testimony at the preliminary was different. Counsel for the state then offered to submit the transcript of the entire testimony to show if there was a conflict. Defendant objected and insisted that if the testimony of this witness were read the whole record taken at the preliminary should go in. Counsel for the state then stated he did not insist on reading the record, but the court directed him to go ahead and read it. This was error. The witness was present in court and testifying. For the purpose of impeachment, defendant was entitled to show by cross-examination, if he could, he had testified differently at the preliminary. This effort did not render his entire testimony competent to be read, but only such parts as were inquired about and which might disclose the purport and meaning of his former testimony. We have carefully examined the transcript of his testimony erroneously introduced, and find nothing in it materially different from his oral testimony at the trial.

Lastly, complaint is made that the court erred in his ruling which would permit counsel for the state to further argue the case after they had made an opening argument and argument by defendant had been waived. Upon this point it appears that the opening argument for the state was made, defendant’s counsel then waived argument, counsel for the state desired to further argue, and the court stated that he would permit this to be done. Thereupon defendant’s counsel made an argument and the state concluded. Defendant bases his contention on the sixth subdivision of section 2687, Comp. Stat. 1921, as follows:

“Order of trial proceedings. The jury having been impaneled and sworn, the trial must proceed in the following order. * * * Sixth. Thereupon, unless the case is submitted to the jury without argument, the counsel for the state shall commence, and the defendant or his counsel shall follow, then the counsel for the state shall conclude the argument to the jury. During the argument the attorneys shall be permitted to read and comment upon the instructions as applied to the evidence given, but shall not argue to the jury the correctness or incorrectness of the propositions of law therein contained. The court may permit one or more counsel to address the jury on the same side, and may arrange the order in which they shall speak, but shall not without the consent of the attorneys limit the time of their arguments. When the arguments are concluded, if the court be of the opinion that the jury might be misled by the arguments of counsel, he may to prevent the same further instruct the jury. All instructions given shall be in writing unless waived by both parties, and shall be filed and become a part of the record in the case.”

There is a division of the authorities in criminal cases. We think the sensible rule is laid down in Vines v. State, 31 Tex. Cr. R. 31, 19 S. W. 545, where it is held:

“Since Code Crim. Proc., art. 667, leaves the order of argument in criminal cases to the discretion of the presiding judge, defendant cannot, by waiving argument after the opening argument by an associate counsel for the state has been made, cut off the right of the district attorney to be heard in a concluding address to the jury, if the judge deems it proper to allow it; and where it is allowed defendant cannot complain unless he shows an abuse of discretion and injury.”

No error requiring a reversal is made to appear. We are of the opinion, however, that justice requires that the judgment fixing the punishment be modified to' confinement in the state penitentiary for a term of six months, and as so modified the case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    ROBERT R. JORDAN et al. v. STATE.
    No. A-7008.
    Opinion Filed September 28, 1929.
    (281 Pac. 154.)
    Walter Mathews, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, hereinafter referred to as the defendants, were by information charged with the unlawful possession of a distillery in the state of Oklahoma, for the purpose of manufacturing distilled whisky, the sale, barter, giving away, and otherwise furnishing the same being prohibited by the laws of the state; they were convicted of the charge and each sentenced to imprisonment in the county jail of Payne county for a period of 30 days and to pay a fine of $50. The defendants appealed to this court by petition in error with transcript of the record attached.

The defendants assign as error committed in the trial of their case: First, that the court erred in overruling their demurrer to the information; second, the court erred in giving instructions 1 and 2; third, the verdict and judgment is not sustained by the law.

An examination of the record shows that the demurrer of the defendants was properly overruled, as the information states sufficient facts to charge the defendants with unlawfully possessing a distillery in the state of Oklahoma, for the purpose of manufacturing distilled liquors.

The instructions of the court complained of by the defendants are substantially correct, and the court did not err in giving the instructions objected to and assigned as error by the defendants.

We hold that the assignments are without merit, for the reason that the information was sufficient to advise the defendants of the crime of which they were charged; that the court properly instructed the jury as to the law, and there is no prejudicial errors of law shown in the transcript.

The judgment of the court is affirmed.

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


text:
    CHARLEY JONES v. STATE.
    No. A-6572.
    Opinion Filed February 23, 1929.
    Rehearing Denied September 28, 1929.
    (280 Pac. 473.)

      Wm. H. Lewis, E. J. Giddings, and Morris & Tant, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of manslaughter in the first degree, and his punishment fixed at imprisonment in the state penitentiary for a term of 75 years.

The record discloses that in May, 1926, defendant, a negro 43 years of age, struck John C. Jamison, a negro minister, upon the head with an axe, which blow resulted in his death. The killing took place at the home of one Laura Williams, a colored woman of Oklahoma City. At the time Jamison Avas seated in a chair and the homicide was entirely unprovoked. The case was tried in September, 1926, and the appeal lodged in this court in April, 1927. No briefs in support of the appeal have been filed.

Where an appeal is prosecuted to this court upon conviction for a felony and no briefs in support of the appeal are filed, and no appearance for 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 if none appear, and the evidence reasonably supports the verdict, the judgment will be affirmed. We have done this, and find that the evidence supports the verdict and no jurisdictional or fundamental error is apparent.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    THURMAN HARGER v. STATE.
    No. A-6916.
    Opinion Filed September 28, 1929.
    (281 Pac. 154.)
    J. G. Harley and E. E. Ammons, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of the crime of having in his possession intoxicating liquor, to wit, whisky, with the unlawful and wrongful intent on the part of him, the said defendant, of bartering, selling, and otherwise unlawfully disposing of the same, and his punishment fixed at confinement in the county jail for 30 days, and a fine of $50, from which judgment and sentence the defendant has appealed.

The state in support of the allegations in the information introduced Sambo Manahawee, who testified in substance that he went to the home of the defendant, on the 20th of July, 1927; when he got there the defendant was not at home; he was northeast of the house in a field; “I met him down in the field coming toward the house; I went back in the direction he came from, following his tracks, which led to the edge of the timber, and went out in the timber some distance and found where some whisky had been buried; I believe there were two gallons; I did not find any still on the place; when I first saw the defendant, he was coming, through a cotton patch; this whisky was found in the timber more than a quarter of a mile from the defendant’s home on a portion of the same place, and adjoining the land defendant had rented and Avas cultivating; the timber was down next to the river; I did not see the defendant in possession of this whisky; the only thing we saw were the tracks of the defendant out in the cotton patch going toward the timber and coming back through the cotton patch; it looked .like the whisky had just been buried.”

Haga Thompson, called as a witness, testified in substance to the same facts as did Sambo Manahawee. Neither of the witnesses for the state testified to seeing the defendant in possession of the Avhisky.

The state offered testimony as to the things found about the defendant’s house, but after the testimony was offered the court excluded all the testimony with reference to what the officers saw or found at the defendant’s home.

Robert Parker testified in behalf of the defendant that he cultivated a part of the Sam Thompson farm, being the same farm that the defendant was cultivating a part of; that on the day it is alleged the defendant violated the law he went down to defendant’s home and was there a few minutes before the officers came and the defendant Avas not at home at the time; shortly after the officers came, be saw the defendant coming through his cotton patch. The wife of Robert Parker testified in substance to the same facts as did her husband.

The defendant in his own behalf testified that the place where the officers claim they found Avhisky was down in the timber on a part of the Sam Thompson place, which was a part of the same farm this defendant was cultivating a number of acres, but he had no control over the timber land down on the river; that they had had some high waters and the fencing had been washed away, and Thompson had started to rebuild the fence; he denied having possession of any whisky, and had not made any whisky. He stated that prior to the time the officers came to the house he was plowing, cotton in the field and his mules got scared and ran away; that he had followed them to where they stopped and had taken the mules loose from the cultivator and driven them to the house, and at the time the officers came he had been down to where the cultivator was to see if he could fix it so he could use it.

There is no testimony in the record showing this defendant at any time had possession of the whisky the officers claim to have found in the timber; his tracks found by the officers, which they claim they followed near where they found the whisky in the timber, amount to a mere suspicion that the defendant may have been guilty. The defendant in this case is charged with the possession of whisky with the unlawful and wrongful intent to sell, give away, and otherwise furnish to others. The proof wholly fails to sustain this charge.

In cases of this kind the intent to violate the prohibitory law being the gist of the offense, before a conviction can be sustained, the state must allege and prove beyond a reasonable doubt, not only that the defendant had possession of the intoxicating liquor, but also of the unlawful intent to violate the provisions of the liquor laws. If the state had sufficient testimony to show the defendant had possession of the whisky found, the quantity of whisky found would be prima facie evidence of the intent to sell; but there is no testimony showing that the defendant had possession of the whisky found.

Upon a careful consideration of the record, we are of the opinion that it would be destroying the presumption that arises in favor of the accused, and permitting a subversion which establishes a rule of guilt beyond a reasonable doubt, to allow this conviction to stand. Because the evidence is insufficient to support the verdict, the judgment of the lower court is reversed.

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


text:
    J. C. LOVETT v. STATE.
    No. A-7011.
    Opinion Filed September 28, 1929.
    (281 Pac. 156.)
    Anglin & Stevenson and Forrest M. Darrough, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was by information charged with the crime of selling intoxicating liquor, to wit, Choctaw beer, was tried and convicted, and sentenced to imprisonment in the county jail of Hughes county for 30 days, and to pay a fine of $50 and costs. Motion for new trial was filed, considered, and overruled, and case appealed to this court.

The testimony on behalf of the state is brief, and in substance is: Lewis King and others, whose names are not given, were stopped on the highway by Coke Denny. When stopped, Denny found they had something in a jug which they designated as Choctaw beer. Denny asked Lewis King where he got it, and he tried to tell where it was. He told deputy Denny he got the beer a mile south and a mile east of Horn’s store. He claims that Denny came up with them about 4:30 in the afternoon. Lewis King claims he got the beer from the defendant about 100 yards or more from defendant’s house.

The defendant denies he sold the prosecuting witness any beer on the day alleged in the information, or that he ever sold beer to him or any one else, and says he lives a mile west of the Horn store; that he was at home all day the day it is alleged by the prosecuting witness he bought this Choctaw beer from the defendant, but that he had visiting him Mr. and Mrs. B. M. Norton. B. M. Norton and his wife, Julia Norton, both testified they went to defendant’s home on the Sunday it is alleged that defendant sold this Choctaw beer to the prosecuting witness. They arrived about 10 or 11 o’clock in the morning, and remained until about one hour by sun, when they left defendant’s home. They know the date they were there, which was the 18th of September, 1927, by the fact that the defendant came and saw the Nortons, and told them he had been arrested, charged with selling beer the day they were visiting his house. Both Mr. and Mrs. Norton testify positively that no one came to defendant’s place after they arrived there in the morning until about one hour by sun, when they left. They further testify that the defendant did not leave the place during the time they were there, and Mr. Norton says he was with the defendant from the time they arrived until they left, which was about an hour by sun on the 18th day of September, 1927.

The prosecuting witness attempts to say the Choctaw beer he had was intoxicating; that he and the others with him drank about a pint of it, and Coke Denny testified that it was intoxicating. This is in substance the testimony both for the state and the defendant.

The defendant urges, first, that the court erred in overruling the motion of plaintiff in error for a new trial; second, that the verdict of the jury is contrary to' the law; third, the verdict of the. jury is contrary to the evidence. These three assignments may be considered together, as they all relate to the question as to whether the evidence is sufficient to sustain the judgment. The only question in this case to be decided is the question of the sufficiency of the evidence to convict this defendant. Defendant contends the testimony on behalf of the state is insufficient to show that the prosecuting witness bought this Choctaw beer from the defendant. It is clear from the record that the prosecuting witness had never seen this defendant prior to this alleged offense, if he saw him on that date. The defendant says he did not see the prosecuting witness on that date, nor did he sell him any Choctaw beer. The prosecuting witness attempts to say that when he came to trial he identified the defendant as the man from whom he bought the Choctaw beer, but he admits he talked with one of the defendant’s counsel, and stated he did not see the defendant there in the courtroom, or words to that effect.

The defendant further alleges that the testimony is insufficient to show that the prosecuting witness was at the defendant’s home and bought Choctaw beer from him at the time of day he alleges he was there, and in support of his contention he called Mr. and Mrs. Norton, neighbors who were visiting him, and who had known him for a long time, and they testify that no one came to defendant’s house while they were there, and that the defendant did not leave the premises during the time they were there, and that they were at defendant’s house from about 10 or 11 o’clock until about an hour by sun in the afternoon.

The testimony of the state as to the hour it is claimed the Choctaw beer was bought from the defendant, and where it was bought, is not sufficient, in view of the testimony of the disinterested witnesses, who testify as to the whereabouts of the defendant during all of that day. On the question as to whether or not the proof is sufficient to show that the Choctaw beer was intoxicating or not, we hold the proof is insufficient to sustain a conviction.

For the reasons herein stated, the judgment is reversed. . f

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


text:
    J. T. SMITH v. STATE.
    No. A-6893.
    Opinion Filed September 28, 1929.
    (281 Pac. 157.)

      Howe & Howe, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter referred to as the defendant, was by information charged with murder, was tried and found guilty of manslaughter in the first degree, and his punishment fixed at imprisonment in the state penitentiary for four years. Motion for new trial was filed, considered, and overruled, and the defendant has appealed to this court.

The testimony on behalf of the state tends to show that the defendant and the deceased had been having trouble from time to time. The deceased had insulted the mother of the defendant. On the day of the difficulty the deceased and defendant came to the town of Soper, the defendant passing the deceased on the road between their home and town. They arrived in town, and later on the defendant went into a store where the deceased was sitting by a stove, and said, “All right, Rennie,” or words to that effect, and fired several shots into the body of the deceased, from the effects of which he died.

On behalf of the defendant, several witnesses testified as to his mental condition, and the court permitted expert testimony tending to show that the defendant had received a sunstroke in his early days, and had received other injuries, which brought about a condition 0f defendant’s mind that would cause him, when he became excited or mad, to forget what was going on, and not to realize the consequences of his acts. This is in substance the testimony of both the state and the defendant.

The defendant assigns four errors alleged to have been committed by the trial court. First, the verdict of the jury is contrary to the law and the evidence and is not based upon the evidence; second, the court erred in matters of procedure in the introduction of testimony over the objections of the defendant; third, the court committed reversible error in his failure to refuse to instruct the jury in favor of the defendant, for the reason that the state wholly failed to prove the corpus delicti, in that they failed to prove that Gene Bay died from the effects of the wounds inflicted by the defendant; and, fourth, the court permitted the county attorney to make certain remarks calculated to affect, and did affect, the substantial rights of the defendant at and during the trial of said case.

After a careful consideration of the assignment of errors, in connection with a study of the evidence in the case, we hold that evidence sufficient to sustain the judgment, and that no fundamental or prejudicial errors were committed in the trial of the case. The defendant was accorded a fair and impartial trial. The court properly instructed the jury as to the law.

The judgment of the trial court is affirmed.


text:
    JOE SCHRAM v. STATE.
    No. A-6949.
    Opinion Filed September 28, 1929.
    Rehearing Denied October 19, 1929.
    (281 Pac. 157.)
    Ray & Thomas, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of having in his possession one still, in violation of the statutes, and was sentenced to pay a fine of $200 and be imprisoned in the county jail for 30 days. Motion for new trial was filed, considered, and overruled, and defendant duly excepted, and the case was appealed to this court.

The testimony on behalf of the state, in substance, shows the defendant was living in the county of Comanche, and engaged in fanning; he owned a school land lease on a tract of land belonging to the state upon which there was a house and other buildings; about 400 yards from this house the defendant was residing on a farm belonging to Dr. Hues; tbe officers went to defendant’s borne, and also to tbe bouse on the tract of land tbe defendant had leased from tbe state; there was grain in tbe bouse and tbe barn was full of bay; in tbe garage they found a still which looked like it bad been in use for some time, estimated to be a 300-gallon still; there were 12 barrels of mash and also some empty 5-gallon jugs. This is, in substance, tbe testimony of tbe state.

The defendant in bis own behalf testified:

“I did not know anything about the still being in tbe garage; tbe bay in the barn and the grain in tbe bouse belonged to me; I had not been up to tbe house for some time; tbe latter part of October previous to the finding of the still, mash and other property in tbe garage, I rented tbe bouse to a man by the name of Cliff Andrews; I had never been up to the bouse after Andrews moved in; I bad never seen Andrews driving to and from the house but had seen him walking around the bouse; be did not pay me any rent; Andrews was not at the bouse tbe day the officers found tbe still.”

Tbe defendant called his son and one other man, who testified to bis renting tbe bouse to this man Andrews; they had never been up to the bouse after they claim Andrews rented it until after tbe defendant in this case was arrested. Several neighbors of tbe defendant testified to bis previous good character.

It is contended! by the defendant that tbe court erred in overruling bis demurrer to tbe information. With this contention we cannot agree. A reading of. the information shows that it states facts sufficient to charge tbe defendant with tbe possession of a still in violation of the statute. The defendant in bis brief cites no authorities to sustain bis contention.

It is next urged by the defendant that the court erred in overruling his demurrer to the evidence and error in overruling his motion for a new trial. An examination of the record in this case shows a conflict in the testimony. This court has repeatedly held that, where there is any competent testimony to sustain the verdict of a jury, though it be conflicting, it would not disturb the verdict. The evidence in this case is sufficient to sustain the judgment. There are other errors assigned, but from a careful examination of the record they are without merit.

The judgment of the trial court is affirmed.

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


text:
    JACK PENROD v. STATE.
    No. A-6950.
    Opinion Filed September 28, 1929.
    (281 Pac. 160.)
    Lewis Hunter, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was charged, by information, with the crime of conveying intoxicating liquors from one place in tlie state to another, and on the 23d day of December, 1927, appeared in open court and entered his plea of “guilty.”

The court entered1 an order directing the defendant to appear for sentence December 31, 1927. At 9 o’clock a. m. on January 2, 1928, an order of the court was entered, continuing defendant’s case for sentence until the 28th day of January, 1928. On the 23d of January, 1928, there was filed in the office of the court clerk a motion to change the plea of “guilty” to “not guilty” and suppress the evidence, which motion was by the court considered, heard, and overruled, and defendant excepted. The court sentenced the defendant to serve a term of 60 days in the county jail and to pay a fine of $100 and the cost of prosecution. From the judgment and sentence, the defendant has appealed to this court.

The defendant urges:

First. That the court erred in failing to suppress the evidence, by reason of a John Doe search warrant which will be found on page 17 of the transcript of this record.

Second. That the court erred in overruling the motion of the defendant to change his plea of “guilty” to a plea of “not guilty” in the January term of the court.

Third. That the court erred in passing for sentence and judgment the case from the December term until the January term.

No brief is filed in support of the defendant’s contention, and no reason given why a brief has not been filed.

The record shows the defendant was given additional time to file a brief, and that time has expired.

It is urged by the defendant that the court should have permitted him to withdraw his plea of “guilty” and enter his plea of “not guilty” at the January term., 1928, and -that the court erred in overruling his application for permission to change his plea.

After a plea of “guilty” has been entered and the case continued to another term for sentence and judgment, the question of whether or not the defendant should be permitted to change his plea is within the sound discretion of the trial court, and, unless that discretion is abused, this court will not interfere with the sentence and judgment.

The plaintiff in error has filed no brief in support of his contentions. After a careful examination of the record, we hold that there was no jurisdictional or fundamental error committed by the court.

The case is affirmed.

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


author: CHAPPELL, J.

text:
    ROY ANSLEY v. STATE.
    No. A-6654.
    Opinion Filed September 28, 1929.
    (281 Pac. 160.)

      Sebe Christian, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, Eoy Ansley, hereinafter called defendant, was convicted in the district court of Pittsburg county of the crime of manslaughter in the second degree, and his punishment assessed at imprisonment in the state penitentiary for a term of two years.

This prosecution was the result of a killing that occurred in an automobile accident on the Jefferson highway in Pittsburg county south of the town of Kiowa at a time this defendant was driving his own car and had as passengers with him the deceased, Shadrick, one Eos-inganna (also killed), and one Ealph Owen, all riding on one seat of a Buick runabout roadster. The accident occurred at the underpass on said highway where the Katy and Eock Island railroads cross each other. The automobile while being driven by the defendant (according to the state’s evidence) at an excessive rate of speed, down hill, skidded in the loose gravel on a reverse curve, was thrown against a telephone pole, and from that caromed off onto the. piling constituting part of the abutment of the underpass, crushing and killing Shadrick and Eosinganna, both occupants of the right-hand side of the car, the side that struck against the telephone post.

It is first contended that the trial court erred in overruling the demurrer to the information. In this connection it is contended that the information is duplicitous, in that it charges in one count more than one offense in violation of section 2558, Compiled Oklahoma Statutes 1921.

Counsel for defendant urge that the information charges:

First, the misdemeanor (reckless driving of an automobile) defined by section 2 of chapter 16, Session Laws 1923, p. 21; and,

Second, manslaughter.

The case was tried on the theory that the information charged but one offense, to wit, manslaughter in the second degree, and the instructions of the trial court limited the jury to a consideration alone of this degree of felonious homicide.

The charging part of the information reads as follows :

“That Roy Ansley did, in Pittsburg county, and in the state of Oklahoma, on or about the 29th day of December in the year of our Lord, one thousand nine hundred and twenty-six and anterior to the presentment hereof, then and there willfully, wrongfully and unlawfully drive, propel and operate a certain automobile, to wit: a Buick Six Master Sport Model Roadster, on and along the Jefferson highway from McAlester to a point on said highway at the underpass of the Chicago, Rock Island & Pacific railway crossing of said highway, at a rate of speed greater than is reasonable under the existing circumstances and not having due regard for the safety of pedestrians and property, and at a rate of speed greater than thirty-five miles per hour, all of said points being within Pittsburg county, and state of Oklahoma, and while so unlawfully driving said car as aforesaid, he, the said Roy Ansley, had riding with him in said car, certain persons, to wit: Ralph Owens, Ezie Rosinganna and Ellison Shadrick, and the said defendant, Roy Ansley, did then and there willfully, wrongfully and feloniously and negligently drive and propel said automobile into the abutment and piling of said underpass in an unlawful, negligent and culpable and reckless manner, thereby causing a wreck and destruction of said car which said wreck and the concussion of said car with said abutments and piling of said underpass caused the person of said Ellison Shadrick to be mangled, bruised and broken and thrown from said car, thereby inflicting certain mortal wounds upon him, the said Ellison Shadrick, of which wounds and injuries he, the said Ellison Shadrick, then and there died.” C.-M., pp. 16 and 17.

The information in this case is not duplicitous. True, there are allegations in the information that show that this defendant in committing the crime of manslaughter in the second degree operated his car in a grossly careless and negligent manner. Such allegations are merely descriptive of the manner in which the offense of manslaughter in the second degree is alleged to have been committed. Such acts are included within and naturally merge into the completed crime. It is elementary that the acts constituting the entire offense must be charged in the indictment or information in a manner sufficient to apprise the defendant of the crime itself. Section 2556, Compiled Oklahoma Statutes 1921, among other things in the third subdivision thereof, provides that the indictment or information must be direct and certain as to the “particular circumstances of the offense charged, when they are necessary to constitute a complete offense.”

The fact that an indictment or information for murder alleges also that the defendant committed an assault upon the deceased does not charge more than one offense. Baysinger v. Territory, 15 Okla. 386, 82 Pac. 728.

The driving of the automobile by the defendant in a careless and reckless manner was but a single part of the transaction constituting culpable negligence that culminated in the killing of Shadrick as charged in the information. It was necessary to allege such circumstances in order to set out in the information the acts constituting the completed offense of manslaughter in the second degree. This particularity of describing the crime is for the benefit of the accused, as it informs him of the manner in which the crime is charged by the state to have been committed. An information charging manslaughter in the second degree substantially in the form here attacked was recently approved as a sufficient charge in the case of Mayse v. State, 3S Okla. Cr. 144, 259 Pac. 277. There was no error in overruling the demurrer to the information.

It is next contended that the trial court erred in giving instructions Nos. 2, 3, 4 and 5 of the general charge. Said instructions read as follows:

“To the charge contained against him in the information, the defendant when arraigned in court entered his plea of not guilty, and thus is formed the issue which you are called upon to try and determine.
“The defendant is charged in the information with the crime of manslaughter in the second degree.
“Homicide is the killing of one human by another. Homicide is manslaughter in the second degree when caused by the reckless or culpably negligent act of another, which under the law is not excusable homicide.
“You are further instructed in this case that the defendant having pleaded he is not guilty, admits that the deceased was killed by being thrown from an automobile which the defendant was operating at the time and place charged in the information, but claims that he is excusable therefor because he says that the collision of the car which defendant was driving at the time with the abutment and piling, of said underpass and which resulted in the death of said Ellison Shadrick was unintentional, accidental and a mere misadventure and happened under such circumstances as to render him excusable therefor under the law.”

In presenting this particular objection to the court’s charge, counsel for defendant says:

“These instructions attempted to instruct the jury on the law of manslaughter in the second degree. Instruction No. 2 recites that the defendant is charged with manslaughter in the second degree and says that the defendant claims that he is excusable for the deaths caused, because the collision from which the death resulted was accidental and made under such circumstances as to render him excusable. The defendant excepted to said charge because the defendant was not charged with manslaughter in the second degree but was only charged with reckless driving on a public highway, and the charge that such reckless driving resulted in the death of the deceased, was merely surplusage, calculated to inflame the minds of the jury against the defendant on account of such result.” Brief of plaintiff in error, p. 53.

It will be noted that there is no contention that instructions Nos. 2 to 5, inclusive, contain any incorrect exposition of the law, but only that the charge is erroneous, in that it was unauthorized because the defendant was not charged with manslaughter in the second degree or with any grade of felonious homicide, but only with reckless driving as defined by chapter 16, Session Laws 1923, which is nothing but a misdemeanor.

It follows that the information in this case contains a sufficient charge of manslaughter in the second degree, and there is no merit in the argument advanced against these particular instructions.

Finally, it is contended that the evidence in this case is insufficient to support the verdict and judgment.

The law applicable to homicides occasioned by the negligent operation of automobiles has received construction by this court in its able opinions in the cases of Mayse v. State, supra, and Nail v. State, 33 Okla. Cr. 100, 242 Pac. 270.

The evidence in this case is somewhat in conflict, but the state’s evidence discloses that the defendant was driving at a rate of speed in excess of 35 miles per hour; that he was operating the steering wheel with but one hand; that he was cautioned by other occupants of the car that he was going to wreck the same if he did not drive slower; that he claims to know 'the road, and must have known that at the time of the accident which resulted in this death he was driving down a hill with a reverse curve in it, on loose gravel, and with an underpass at the bottom of the hill that had a narrow passage to it Avith numerous piles on each side of said passage to hold the abutments. With a road such as this, the driving of a car at a rate of speed approximating 40 or 45 miles an hour, down grade, was certainly gross and culpable negligence in itself. With the exercise of ordinary care and caution on the part of the defendant considering the existing circumstances, this accident would not have occurred, and he would never have been called upon to answer for the death of his fellow man. He steadfastly refused to heed the caution of his companions, and the miracle is that all occupants of the car were not killed.

The verdict of the jury is supported by sufficient evidence, and the errors of law complained of are not sufficient to require a reversal of the case. The cause is therefore affirmed.

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


text:
    FAIRY NOBLIN v. STATE.
    No. A-6782.
    Opinion Filed September 28, 1929.
    (281 Pac. 165.)
    Grubbs & Whipple, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, pleaded guilty in the county court of Payne county, to the charge of possession of about 100 gallons of intoxicating liquor, to wit, whisky, and was sentenced by the court to pay a fine of $500 and be imprisoned in the county jail for 60 days. The plea of guilty of the defendant was entered on the 5th day of October, 1927, and judgment rendered thereon on the same day. On the 11th day of October, 1927, the defendant filed her motion to set aside and hold for naught the judgment rendered against her. On the 12th day of October, 1927, the defendant filed her motion for a new trial, which motion was overruled on the same day.

The transcript of the proceedings filed in this court does not contain the order of the trial court denying the application of the defendant to vacate and set aside the judgment and for leave to withdraw her plea of guilty and enter a plea of not guilty.

Defendant in her motion for a new trial sets out practically the same grounds as those ,set out in her application to vacate the judgment. The court apparently treated the application and motion as raising the same question and disposed of both by overruling them.

The defendant complains, first, that the court erred in overruling the motion to set aside the judgment and sentence and in not permitting plaintiff in error to withdraw her plea of guilty.

The journal entry on arraignment and plea of guilty reads as follows:

“Now on this 5 day of October, 1927, the defendant, Fairy Noblin, is brought before the bar of the court on a warrant heretofore issued on an information filed herein charging that defendant on or about the 3rd day of October, 1927, in Payne county, Oklahoma, did commit the crime of unlawful possession of whisky; thereupon the court inquires of the defendant if her true name is Fairy Noblin, to which inquiry the defendant replies in the affirmative; thereupon the court advises the defendant of the nature of the charge filed against her, and further advises her of her right to counsel, trial and time to prepare for trial; thereupon the defendant pleads guilty to the crime charged, and the court after being fully advised in the premises,
“Orders, adjudges, and decrees, that the state of Oklahoma have and recover of and from the defendant, as fine, the sum of five hundred dollars, and the costs of this prosecution taxed in the sum of thirty-seven dollars and forty cents, and further orders that defendant be imprisoned in the county jail of Payne county, Oklahoma, for a period of sixty (60) days, and in default of the payment of the fine above assessed she be imprisoned in the county jail of Payne county in addition to said sixty days, one day of each unpaid $1.00 of such fine.
“It is further ordered that execution issue on this judgment for any unpaid costs.
“[Seal.] L. H. Woodyard,
County Judge.
“Piled this 5th day of October, 1927.
“John A. Show, clerk of county court, by O. B., deputy.”

The defendant having filed in this court a transcript of the proceedings certified to by the trial judge as being correct, she cannot impeach the same.

It appears from this journal entry that:

1. The court inquired if the defendant’s true name was Fairy Noblin.

2. Thereupon the court advised the defendant of the nature of the charge filed against her.

3. Further advised her of her right to counsel.

4. And of her right to trial and time to prepare for trial.

It thus appearing that the defendant was fully advised by the court of all her rights before her plea of guilty was entered, she is bound by such record.

In the case of Jenkins v. State, 6 Okla. Cr. 516, 120 Pac. 298, this court said:

“A motion in a misdemeanor case to withdraw a plea of guilty and to substitute therefor a plea of not guilty is addressed to the sound discretion of the court. Consequently its decision will not be disturbed, unless an abuse of discretion appears.” Tegeler v. State, 9 Okla. Cr. 138, 130 Pac. 1164; Kemp v. State, 35 Okla. Cr. 128, 248 Pac. 1116; Looper v. State, 42 Okla. Cr. 341, 276 Pac. 593.

It appears from the record that the defendant is a middle-aged woman. She was charged with the possession of 100 gallons of whisky. The record she filed in this court shows that she was fully advised as to all her rights in the matter and that she voluntarily entered her plea of guilty to this charge. Under the authorities cited, the court in his discretion could deny the application of the defendant to withdraw her plea of guilty. There is nothing in the record to indicate an abuse of this discretion. The application was therefore properly denied by the court.

The defendant next contends that the court erred in overruling her motion for a new trial. Under the authorities cited, the motion for a new trial was properly overruled.

The cause is therefore affirmed.

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


text:
    EARL DOYLE v. STATE.
    No. A-..
    Opinion Filed September 28, 1929.
    (281 Pac. 166.)
    C. F. Gowdy and E. S. Bessey, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Earl Doyle, plaintiff in error, hereinafter called defendant, was convicted in the district court of Nowata county of the crime of receiving stolen property, and was sentenced to serve a term of three years’ imprisonment in the state penitentiary.

The conviction id asked to be reversed on two grounds: (1) On the ground that the trial court erred in overruling the motion to quash or set aside the information and in refusing to permit the plaintiff in error to introduce evidence in support of said motion; (2) On the ground that the evidence introduced at the trial was insufficient to sustain a conviction.

On the day the case was set for trial, the defendant filed his motion to quash or set aside the information for the reason that there was no competent evidence before the examining magistrate to justify holding the defendant for trial and authorizing the filing of an information in the district court. At the time of filing the motion, defendant attached to the motion a transcript of the evidence taken at the preliminary examination, and asked leave of court to file the motion, which leave was granted by the court. The defendant then asked leave of court to take evidence to show that the transcript attached to his motion was a true and correct transcript of all the evidence taken at the preliminary examination of the defendant. The county attorney objected to the taking of any evidence under the motion for the reason that the two-day notice required by section 2598, C. Ó. S. 1921, had not been given. The motion of the defendant in no way complies with section 2598, supra; the theory of the defendant evidently being that the taking of evidence to identify the transcript was not the taking of evidence as contemplated by section 2598, supra. To this we agree. The court should have permitted the defendant to offer evidence identifying the transcript as being a true and correct copy. Since the defendant attached the transcript to his motion and since the court permitted him to file the motion, a transcript of the evidence was before the trial court, and the court should have considered the same. On appeal, the defendant incorporated his motion and the transcript of the evidence in the case-made. An examination of this shows there was sufficient evidence heard by the examining magistrate to support a finding of probable cause against the defendant, and the motion to quash or set aside the information was properly overruled. If an examination of the transcript had revealed that there was no competent evidence showing probable cause, this court would have reversed the case, but, since such transcript does show probable cause, the case will not be reversed for error of the trial court in refusing to permit the defendant to offer evidence identifying the transcript and failure of the court to consider such evidence.

The defendant next contends that the evidence is insufficient to sustain a conviction. The evidence is almost wholly circumstantial.

Stripped of its proper and necessary inferences there could be no conviction in circumstantial evidence, but, as held by this court in Ex parte Jefferies, 7 Okla. Cr. 544, 124 Pac. 924, 41 L. R. A. (N. S.) 749:

“All evidence is largely circumstantial, and evidence, when most direct, depends upon, circumstances for its credibility, weight, and effect. In cases depending upon circumstantial evidence, where the circumstances proven are not only consistent with the guilt of a defendant, but are also inconsistent with his innocence, such evidence in weight and probative force may surpass direct evidence in its effect upon the court' or jury.”

And in the body of the opinion, the following:

“From these and other reflections we have come to the conclusion that it is a mistake to say that ‘circumstantial evidence’ is inferior to what is commonly called ‘positive and direct testimony’. The truth is that no human testimony' is superior to doubt even in cases of the most direct proof. It is always possible that witnesses may err unintentionally or may corruptly falsify their testimony for reasons which are at the time not apparent and not known. If the law required mathematical certainty either as to matters of fact or as to the conclusions drawn by the courts and juries, the enforcement of law would be impossible.”

So in this case, as in most larceny and receiving cases, the evidence was necessarily almost entirely circumstantial. Thieves and their confederates do not work in the open. If the state had to rely on direct evidence to prove their guilt, they would all escape just punishment, but fortunately this court has said in no uncertain language that circumstantial evidence is ofttimes more dependable than direct, and that it will be received to' prove guilt on the same basis that direct evidence is received, and that its sufficiency will be tested by the same rules that the sufficiency of direct evidence is tested by. Ex parte Harkins, 7 Okla. Cr. 464, 124 Pac. 931; Laxson v. State, 29 Okla. Cr. 335, 233 Pac. 791; Key v. State, 22 Okla. Cr. 284, 210 Pac. 1044; Hamilton v. State, 25 Okla. Cr. 233, 219 Pac. 951.

There being sufficient evidence in the record to support the verdict of the jury, and the errors of law complained of not being fundamental, the cause is affirmed.

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


text:
    JENKINS PORTER v. STATE.
    No. A-6752.
    Opinion Filed September 14, 1929.
    (280 Pac. 859.)
    H. A. Stanley, H. H. Brown, and Brown & Williams, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was tried upon an information charging him with murder of one Sylman Bell, and convicted on manslaughter in the first degree and his punishment fixed at confinement in the state penitentiary at hard labor for a period of four years. Motion for new trial was filed, considered, and overruled, and exceptions! saved, and defendant has appealed to this court.

The testimony on behalf of the state is, in substance, as follows: That the deceased and the defendant, together with other parties, started from Ardmore and got out a few miles from town; that the remains of Sylman. Bell was found by Albert Musgraves, and he went to the Church place and called the officers; Bob Bell and Con Keirsy came out and helped load the body of Sylman Bell into the ambulance. The witness described the place where the body was found. Bell further testified that he made an examination of the body for wounds; that he found some wounds on the head of the deceased; that he had been hit on the head; there were two blood puddles, one about four feet from the other; it looked like the deceased had fallen in one place and rolled over two or three times and died. Witness further stated he picked up a rock that Avas bloody and had some hair on one corner of the rock.

On cross-examination, witness stated there were no more rocks where he found this one as big as the one that was being inquired about.

“There Avas some gravel where the blood ran out, and at the place where the body was found, and two puddles of blood, it was not far though, not over three or four feet apart; the rock I picked up was a foot from the body; it was lying just a little ways from the body, a little Avays from his head, but I don’t remember which direction.”

Jess Dunn, a witness for the state, testified he went out to look for the defendant and arrested him about 1% miles from the Rocky Point sclioolhouse, which was about 4 miles southeast of Ardmore.

“I talked with the defendant the day I arrested him, and he said it had been four or five days since he had seen the deceased. I arrested the defendant and came back toward Ardmore, and then turned back and went to Love county. I was trying to locate the two Phillips boys. I found them at a dance at Sidney Lafountaine’s in Love county. About two hours after I arrested the defendant, he told me he and Sylman Bell had had a fight that night.”

On cross-examination be stated,

“He arrested Jimmie Phillips in tbe afternoon after tbe body was found that morning. He did not know wbat time tbe body was found.”

Dr. Walter Hardy was called, and testified as to tbe wounds on tbe body of Sylman Bell, and that they Avere sufficient to cause death.

Sid Phillips, a witness for tbe state, testified: He knew Jenkins Porter and had known him for a long time; Jenkins Porter was bis uncle. He knew Jimmie Phillips; be was bis first cousin. That be knew Sylman Bell, bad known him for about a year. In tbe afternoon before this trouble came up, he and Sylman Bell, Jenkins Porter, and Jimmie Phillips had been to Ardmore. He and Jimmie Phillips bought some canned beat and started home.

“Me and Jimmie was fixing up tbe canned beat when Jenkins Porter and Sylman Bell caught up with us on the road. We all drank of this canned beat, and after we drank the first drink of canned beat we all went on toward home. A car passed us about that time and turned off east of this north and south road. We went on up tbe road, and Jimmie went ahead. Me, Sylman, and Jenkins started on down tbe road where Jimmie was. We got down about halfway, and Jenkins came back the west road. After we all got back, I called Jenkins; he was over on tbe west side of the fence. He got up and came over in tbe road. We were all about half drunk. Sylman said Jenkins Avas not man enough to go away and meet them nigger. Jenkins said be did not want to fool with nigger. We drank some more beat and then Avent down tbe road south to a culvert close to Mrs. Church’s tank. We fixed some more canned heat to drink. Me, Jimmie, and Jenkins stayed there in the road, and Sylman went for some water. Sylman and Jenkins had not had any fight at that time. After that we all went to the tank. We drank one can of canned heat and started back to the road. Sylman said Jenkins was not man enough, and Jenkins said he did not want nigger, and about that time Sylman hit Jenkins and knocked him down. I don’t know whether this is the rock Jenkins had or not. Jenkins hit Sylman with a rock. Sylman was lying down when Jenkins hit him.”

Witness then got down and indicated to the jury the position Sylman Bell was in at the time Jenkins Porter hit Bell with a rock. Witness was also permitted to take the rock and indicate to the jury how the defendant used it when he struck the deceased with it.

“When Jenkins struck Sylman Bell with the rock, I said, ‘Let’s go home.’ Some one struck a match, and I found, the other fellow had blood on his face. Jenkins left there and went across the field. Jimmie and I went home; we were living southwest of there.”

On cross-examination the witness stated: He was 24 years old; he had been in jail about four days; the county attorney stated he had just been there in jail as a witness.

“The evening of the fight Jimmie and I left town about 7:80 o’clock, about sundown, and about 15 minutes after we left we came up with Sylman and Jenkins walking. We had eight cans of canned heat. When we come to the road where it turned east down there, Sylman wanted to go down and get one of the negro, girls, but insisted on us all going, and we sent Jimmie down first, Jenkins and Sylman and me went in west on the west road., and Avhen Jimmie, Sylman, and I came back we came back on the main road. I called Jenkins; he was inside the fence. Sylman said Jenkins ain’t man enough to take that nigger girl, and Jenkins said he don’t want to fool with nigger. We went on down the road about a half mile and stopped at a bridge; I don’t know how long we stayed there.”

Witness was then asked if he did not testify in the preliminary trial about two hours, and answered:

“Yes. The last fight was in the pasture, not in the road. We did not pull Sylman Bell from the road over into the pasture after the fight. When Sylman and Jenkins started fighting, we was out in the road going home; I was ten steps ahead of them. I did not see Sylman stomp him with his feet. Sylman hit Jenkins down, and Jenkins hit Sylman down. I did not see Sylman stomp Jenkins when he knocked him down. I never noticed either of them have a knife. When Jenkins hit twice, I ran up towards Jenkins and pulled him off; he had already stopped fighting at that time. I seen him hit the deceased. There was no cussing there between ■ Sylman and Jenkins. We were over in the pasture about two hours the first time we stay there; the next time we went to pasture we then went from pasture back into the road. We went off and left Sylman lying there on the ground. I did not hit him with a rock or anything. I did not touch the body after the fight. I went on and thought he would get all right and go home; found out next day he was dead. I did not go back the next day to see whether he had gotten up and gone home, did not think there was anything much the matter Avith him. I did not see Jenkins any more that night after I left the place where the fight occurred. Jenkins went west, and me and Jimmie south. After the fight, Sylman laid down on his side (indicating), and I put him straight leg; that is all I did; I did not turn him over.”

On redirect examination the witness stated Sylman knocked Jenkins down with his fist and Jenkins got up and knocked Sylman down, and then Jenkins hit him with rock; Jenkins and Sylman had just one fight.

Witnesses were then called to show that Jimmie Phillips was in bed with a broken leg and unable to attend the trial.

The defendant testified, in substance: That he was a full-blood Mississippi Choctaw; he knew Sylman Bell; that he saw Sylman Bell the afternoon of the. trouble that night. Witness was asked about canned heat, and explained as best he could, and said that in order to drink it he mixed water with it.

“After we got out to the Bailey place, we saw Sid and Jimmie Phillips next to the road. They called us down there. We fixed up canned heat with soda pop and taste some of that. We drank that up. Sylman Bell went off to get some more canned heat; eight more cans. Sid go to town to get it. Sylman accused me of stealing some of his canned heat, and he had me stand up and searched me, though he did not find any canned heat on me. We left the Bailey place and went on up the road a little further, about a half mile I believe. A car came along, and we stopped there and the road turned east. The car stopped in about 100 yards, and we heard laughing and talking in the car; boys and girls, women and girls and men too. I did not go down to the car. He wanted to send Jimmie down there, and I said, ‘Jimmie don’t go down there, you might get into trouble.' Sylman said he was doing this. I would not go down there with him. I changed my mind and jumped over in the pasture fence there on the side of the road and stayed there until he came back. Sylman called me. He said: ‘What devil you wait here? You are afraid of people. If you will come with us we will get these girls out of the car.’ And he said, ‘We can use it all night long,’ that what he say. Tell him I just stay in jail a week, and chief of police say just don’t drink anything more like that, no more trouble. Sylman he say I not man enough, we could have got it all night with girl. That all he say from about there. We getting water to fix up heat over by Mrs. Church’s tank. We all went into Mrs. Church’s pasture and drank heat, and he wanted me to get water; I don’t, cause if I get water Mrs. Church find out we like to get into trouble. He said, ‘You just always afraid of somebody.’ This gone on hours, ‘You going to bring it, I am going to kill you anyway.’ I said, ‘I may be in hospital, I ain’t able to fight you.’ I don’t know what I did about that time when I hit the ground, hit him so hard I don’t know when I hit ground. I guess I fall I was on the ground. After I was on the ground, he stomped me, last time over arm on my face, spit in my face, and stomped me like a baby. I got on my knees and knocked him back, and I got up, and I reached back that way (indicating). I had something in my hand; I thought it was a clod of dirt I had in my hand. I can’t use my hand at all. He say, ‘I thought I killed you, I am going to finish up,’ and I walked back about 20 yards and get to fence and could not go any further, and he said, ‘I am going to finish up,’ I got to do something. I hit him and missed him; the second time I knocked him away. As he come at me the last time, he said he was going to cut that head off, my head off.”

Witness then explained the position he was in in the corner of the fence and what the deceased was doing to him. Then witness states:

“He reached in pocket and hit me like this, and I hit him right on the side of the head; some way I miss him, and he dodge back and I hit him; he did not get up any more. I did not hit him after he fell, I ain’t there; after he quit coming toward me, I turned and walked off; I no wait to see what happen to him, I ain’t there. When I hit him I did not intend to kill him; I was trying to get away from him, just trying to keep him off of me. At the time we had the trouble I weighed 127 pounds, Sylman Bell weighed nearly 200, I guess 180. The last time I drunk with Sylman Bell, he was a pretty bad fellow; when he came at me, he said he was going to finish me. It was so dark I could not see if he had anything in his hand.”

On cross-examination the defendant stated he was 36 years old; that he and the deceased were on good terms when they started on the road that night.

“I never did tell nobody until now about Sylman going to take my wife; you say steal, be say be was going to take my wife; Sylman Bell, be hit me, knocked me, slap me, spit over my face, pretty bad off,, stomped me on my face, bruised me; after I got tbrowed in jail, I was sick a week; did not knock any skin off my face; like to break one of my ribs; I struck at him once and missed, and the second time I knocked him over I guess he stayed there; I left, when just about 40 yards from him Sid was with him; he was not right there with me; I did not go back; I did not run away; I did not run at all; after I hit Sylman, I went west, I stayed about a half a mile from the road that night out south; set down on the ground and went to sleep; next day I come to town; I did not go back to see Sylman. Jess Dunn told me Sylman was dead, and the next evening I was put in jail.”

Con Keirsy was recalled, and testified he went out apd examined the body of the deceased, and that he did not have any knife. This is in substance the testimony of the state and the defendant.

Several errors are assigned by the defendant as grounds for reversal of this case. It is first contended that the trial court erred in admitting certain incompetent, irrelevant, and immaterial evidence. The principal argument made by the defendant is that the trial court permitted the introduction of a certain rock without a sufficient predicate being laid for the introduction. The testimony of Bob Bell shows that the rock admitted in evidence was found within a foot and a half or two feet of the body of the deceased. Sid Phillips, who was present at the time of the fight between the defendant and the deceased, testified that defendant struck the deceased twice with a rock, but could not positively identify the rock admitted in evidence as being the rock used by the defendant. The defendant admitted stinking the deceased, and states that when the deceased knocked him down, when he got up be bad something in bis band which be thought was a clod of dirt, and that he struck the deceased and knocked him down, and he then left the scene of the difficulty. We do not think the court erred in permitting the introduction of the rock, over the objection of. the defendant.

It is next contended by the defendant that the trial court erred in giving certain instructions to the jury. He urges that the instruction of the court which covers the exact language in the information was error. With this contention we cannot agree. We think that it is the duty of the court to either read the information, or state the allegations substantially as they are in the information, as the burden is upon the state to prove each and every material allegation in the information.

We have carefully examined the other errors assigned by the defendant, hut when they are considered in connection with the testimony in this case, and the circumstances surrounding the difficulty, we do not think they are sufficient to justify this court in reversing the case. All the parties to this case are full-blood Choctaw Indians, who do not speak English very well. They were all more or less intoxicated at the time of the difficulty. There is a conflict in the testimony of the state and the defendant as to what, if anything, the defendant used in the fight with the deceased. The defendant admits striking the deceased and knocking him down. Where there is conflict in the testimony, this court will not substitute its judgment on questions of fact or the weight of the evidence for that of the jury. Where there is competent testimony from which the jury may reasonably and logically find the defendant guilty, even though the evidence may be conflicting or such that different inferences may reasonably be drawn therefrom, this court will not disturb the verdict.

The testimony is sufficient to sustain the judgment. The instructions of the court were fair to the defendant and substantially stated the law.

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

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


text:
    OTIS SPEARS v. STATE.
    No. A-6800.
    Opinion Filed September 28, 1929.
    (281 Pac. 167.)
    Freeling & Box, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Otis Spears was convicted in the county court of Oklahoma county of the offense of carrying firearms at a public gathering and sentenced to pay a fine of $50 and to be imprisoned in the county jail for a period of three months.

The prosecution is based on section 1997, Compiled Oklahoma Statutes 1921. The sole contention urged in this case is that the evidence is insufficient to sustain the conviction. In the trial court the defendant moved for a directed verdict, which motion was overruled, and exceptions reserved.

It appears that Otis Spears is a negro, and that on the 25th day of January, 1927, he carried a pistol to a public gathering, to' wit, a public dance which was being held in a place known as Slaughter’s Dance Hall, located at the intersection of East Second and Stiles streets in Oklahoma City.

It is admitted that Spears carried this gun up to that place. The defense interposed is purely technical; it being urged that the evidence discloses only the fact that he carried the pistol into the vestibule leading into the dance hall and not into the dance hall proper. The evidence shows that this vestibule was a small room where the person stayed who took the tickets of entrants into the room where the dancing was engaged in, and that it was adjoining such room with the door open between them and used as a part of said hall.

J. K. Wright testified as follows for the state:

“Q. Did he tell you that he went into the dance hall with his gun? A. Yes, sir; and that the negro didn’t attack him.”
Deck Fuller testified as follows for the state:
“Q. What was on the third floor? A. Dance hall.
“Q. Anything but the dance hall? A. That is all.
“Q. When a man is on the third floor he is in the dance hall. That is all that is up there? A. Yes, sir.”

There is a conflict between the evidence of the state and of the defendant as to whether the vestibule was actually part of the dance ball and as to whether the carrying of the pistol into the vestibule constituted a carrying of it into the dance hall, thus violating section 1997, C. O. S. 1921, which prohibits the carrying of a weapon into a public gathering.

The evidence of Wright and Fuller was sufficient to justify the jury in finding the defendant, guilty of carrying the pistol into a public gathering.

This court has so often held that, where there is a conflict in the evidence, and where there is any competent evidence in the record supporting the verdict of the jury, this court will not reverse the case for insufficiency of the evidence, that it is not necessary to cite authorities in support of such rule.

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

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


text:
    JOHN LYONS v. STATE.
    No. A-7125.
    Opinion Filed October 5, 1929.
    (281 Pac. 313.)

      Brown Moore and Guy L. Horton, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Payne county of unlawfully selling intoxicating liquor, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The appeal was lodged in this court August, 1928, a motion to dismiss has been filed, supported by affidavits setting out that since this appeal defendant left the state and has been apprehended at Council Bluffs, Iowa, and is there held on a charge of highway robbery.

It is uniformly held by this court that, where a person is convicted of a crime, and prosecutes a.n appeal to this court, and thereafter becomes a fugitive from justice, or is beyond the jurisdiction of the court, and cannot be made to respond to any judgment or order which may be made in the case, the appeal will be dismissed.

For the reasons assigned, the appeal is dismissed.

DAVENPORT and CHAPPELL, JJ., concur.