text:
    L. J. D. YOUNG v. STATE.
    No. A-2003.
    Opinion Filed June 23, 1914.
    (141 Pac. 285.)
    1. HOMICIDE — Plea of Self-Defense — Availability—Aggressor. One who seeks and brings on an affray cannot shield himself under a plea of self-defense.
    2. SAME — Harmless Error — Instructions. Error, if any, in instructions defining the law of self-defense could not be prejudicial to the defendant, where the evidence did not justify instructions on self-defense.
    (Syllabus by the Court.)

      Appeal from District Court, Pontotoc County; Tom D. McKeown, Judge.

    L. J. D. Young was convicted of assault with intent to kill, and appeals.
    Affirmed.

      Crawford & Bolen, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. ' Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of the district court of Pontotoc county, rendered on the 21st day of November, 1912, upon a verdict convicting the defendant of the crime of assault with intent to kill by shooting one Anthony Roe. The jury failed to agree on the punishment, and the court sentenced the defendant to be imprisoned in the penitentiary for a term of two years and six months.

The evidence shows that Anthony Roc and the defendant were negroes, and that about dusk on the 30th day of April, 1912, the defendant shot at Anthony Roe four or five times, hitting him in the back twice, and once in the hand.

The evidence for the state, briefly stated, was as follows:

Anthony Roe testified that he was standing near the colored school, talking to Peter Nail, when the defendant came up with a petition for his appointment as teacher at the school, and said, “Roe, sign this, I want to get this school, and want you to sign it;” and he said to defendant, “I have not got any children to go to school, and I hadn’t no right to sign it;” and the defendant said, “You told the county superintendent up in his office that I was not fit to teach this school;” and he said to him, “No, I have not been in the county superintendent’s office to say anything about it whatever;” and after other words defendant said, “God damn you, I am going to kill you,” and pulled his gun; that he ran and the defendant shot him. He further testified that he did not have anything in his hand nor did he attempt to strike the defendant.

Peter Nail testified: That he was standing talking h> Roe when the defendant came up and handed Roe the paper and asked him to sign it. His testimony as to what was said is substantially the same as that of the witness Roe. That, closing the conversation, the defendant said h> Roe, “You have been meddling with me long enough; now, God.damn you, I am going to kill you;” .and Roe started to run, and the defendant com-, menced shooting at him, and fired five shots. On cross-examination he testified that, when Roe handed the petition back, the defendant pulled his gun and said, “I am going to kill you;” that Roe was running from him when he fired the shots; that Roe did not strike at him with a knife, or with his hand; and that he did not see Joe Lewis and Felix Alexander there either before or after the shooting.

On behalf of the defense, Joe Lewis testified .that he was coming up town with Felix Alexander, and saw the defendant, Young, and Roe standing talking; that he could not hear what was said, but saw Roe strike at the defendant, and there was something shiny in his hand; that Roe stood facing the defendant while the three or four shots were fired, and the defendant was running from him as he shot. On cross-examination he stated that he did not testify as a witness on the preliminary examination, and did not know whether Roe had on a cap'or a hat, or a coat or overcoat, and that he had been convicted of selling whisky in Pontotoc county.

Felix Alexander testified that he saw Young and Roe talking, and some other fellow was there; that he saw Roe strike at the defendant, and the defendant jumped back from him, and the gun popped three or four times. Two or three witnesses testified that the defendant’s reputation for being a peaceable, law-abiding negro was good.

The defendant did not take the stand as a witness.

The only errors assigned are based on exceptions taken to the instructions given on the law of self-defense.

Error, if any, was harmless. There is no evidence in the record which would require the submission of the question of self-defense to the jury.

Before one can justify an assault and battery with a deadly weapon, with intent to kill, he must at least show that there was reasonable grounds for believing that he apprehended imminent danger. The facts, as testified to by the defendant’s two witnesses, who claimed to have witnessed the shooting, if true, afforded no justification, and their statement of the occurrence is clearly impeached by the undisputed facts. In fact, it is undisputed that the shooting was without even a plausible pretext of provocation. One who seeks and brings on an affray cannot shield himself under a pleá of self-defense.

We find no error in the record. The defendant had a fair trial. No injustice was done him by any ruling of the court, :nor was injustice done him by the verdict of the jury.

The judgment of conviction is therefore affirmed.

ARMSTRONG, P. J., and FURMAN, J., concur.


source: Caselaw Access Project

author: ARMSTRONG, P. J.

license: Public Domain

text:
    GEORGE FOSTER v. STATE.
    No. A-1878.
    Opinion Filed June 29, 1914.
    (141 Pac. 449.)
    1. HOMICIDE — Threats—Appeal—Discretionary Ruling — Continuance —Motion, (a) A motion for continuance is addressed to the sound discretion of the trial court, and the ruling of such court will not be disturbed by this court, unless an abuse of this prerogative on the part of the trial court clearly appears from the record.
    (b) A motion for continuance, in addition to showing- proper diligence as required by law, and material facts expected to be produced by the witness, must contain allegations that would make the testimony of the absent witness competent.
    (e) A motion for continuance, based on the contention that absent witnesses would testify to certain threats, must, in addition, contain an allegation that the person seeking- the continuance can make such testimony competent by other proof tending to show that the deceased was the aggressor in the difficulty.
    (d) Threats, either communicated or not communicated, are neither relevant nor material in the trial of a person charged with homicide, unless some evidence is first 'introduced tending to show that, at the time of the homicide, the accused acted in his apparent or necessary self-defense.
    2. APPEAL — Verdict, (a) When all the facts and circumstances introduced in evidence clearly establish the guilt of the accused, a judgment of conviction will not be disturbed by this court, in the absence of substantial errors of law.
    (b) See facts in opinion and contention of counsel .quoted from their brief, which, in the judgment of this court, do not warrant a reversal. ■ ■ .
    3. HOMICIDE — Manslaughter—Excessive Punishment. When a careful examination of all the proceedings incorporated in the record indicates an excessive punishment, this court will modify the judgment in the interest of substantial justice.
    (Syllabus by the Court.)

      Appeal from District Court, Cleveland County; R. McMillan, Judge.

    George Foster was convicted of manslaughter, and appeals.
    Modified and affirmed.

      B. F. Wolf and J. B. Dudley, for plaintiff in error.

      Smith C. Matson and C. J. Davenport, Asst. Attys. Gen., for the State.
   ARMSTRONG, P. J.

The plaintiff in error, George Foster, was convicted at the July, 1912, term of the district court of Cleveland county of manslaughter in the first degree, and his punishment fixed by the court at imprisonment in the state penitentiary for a period of eighteen years. The information charged the accused with the murder of Eugene Edward Greenhaw in Cleveland county on the 6th day of December, 1911. The deceased was engaged in the livery business at Norman. The ac-cüsedi a Chickasaw Indian, lived in McClain county. On the day preceding the homicide, the deceased had taken Katie Flanagan, who, it is contended, was a woman of questionable character, to the home of Mrs. Wolf, mother of the accused. On the same date the accused had a conversation with O. B. Knox, a deputy sheriff, and during this conversation told the deputy sheriff that he had run the deceased off the place. At the time he was drinking and appeared to be angry. He said that he had been having considerable trouble with the deceased, who, he contended, had been trying to run over him for quite a while, and that he intended to kill him if he bothered him any more. This was on the afternoon of the 5th; the killing occurring the next evening. . .

There was other evidence of ill feeling on The part of the accused toward the deceased and threats made by him against the deceased. About noon on the 6th day of December, thé accused came to Norman in a buggy, went to the wagon yard, and left the team, a Winchester rifle, and an overcoat. Here he borrowed a knife to remove the cork from a quart bottle of whisky, and told the liveryman that he was going to Purcell, and ordered him to take care of the team and gun and overcoat until he returned. About 3 o’clock in the afternoon the mother and sister of the accused called at the wagon yard and got the team. Shortly, afterward the accused came in and, on being informed that the team had already been taken away by his mother and sister, got his riñe and coat and apparently employed Greenhaw, the deceased, to take him home. On the way they stopped at the home of O. B. Knox, the deputy sheriff, where the accused ate supper. At this time he was drinking heavily. About G :30 on the same evening the accused and deceased left the home of the deputy sheriff. About 8:30 they passed the home of Peter Maphis, about two miles west of Norman. Shortly afterward Maphis and his sons, Henry and William, heard several shots. At first there was one shot, and a few minutes later two or three shots in rapid succession. Near the Maphis place there is a wooden bridge over which these parties heard the team run. They went out of the house into the yard, and the accused immediately came up, holding a Winchester rifle in his left hand, and said to Maphis, “I guess I killed somebody,” and handed the rifle ff> him.

Plenry Maphis testified that the accused said he had shot a fellow down there, and did not know whether he had killed him or not, but hoped lie had; that he (the accused) wanted a statement written out; and that witness wrote out a statement, as dictated by the accused.

Dan Short testified that he was present at the time, and that the accused, among other things, said that deceased commenced cussing him and called him a son of a bitch, and threw him out of the buggy, and drew a gun on him and that he (the accused) grabbed the gun and shot the deceased in the neck.

Sheriff Sales testified that he had a conversation with the accused after he was brought to the jail on the night of the homicide, and that he told him that he and deceased got into a quarrel; that deceased was abusing Sheriff Sales, and that he (the accused), as Sales’ friend, took it up; that during the fuss the deceased drew a gun on the accused and that the accused took hold of the gun and turned it back on the deceased, and that he thought he had shot him in the neck; that the team ran away; and that he did not know just where the deceased was hit. He said further that he believed he had killed the deceased and hoped he had. Pie seemed to be very angry at the time of this conversation. Shortly afterward the sheriff and others went to the scene of the homicide, and found the body of the deceased. An effort was made to ascertain if any weapons were on the person of the deceased, but none were found. Several shots had taken effect in his coat. There was a wound in the left side and one in the arm. One bullet went into the body and upward into the cavity of the heart. The left side of the face was badly powder burned. There was a cut or gash on the right side of the forehead above the eye. Some cartridges and empty shells were found a short distance from the bridge. The Winchester rifle delivered by the accused to witness Maphis and the pistol delivered at the same time were both of 38 caliber. The chambers of the six-shooter were all empty when it was delivered to the sheriff, and its contents had not been changed after the accused handed it to Maphis. The pistol showed that it had been recently fired. An empty shell was found in the buggy and four shells in the pistol. The bullet taken from the heart of the deceased and compared with the shells used in the pistol and in the rifle showed that it came from the pistol and not from the rifle. The proof in the .record indicates that the pistol belonged to the deceased and the rifle to the accused.

Counsel for the accused frankly confess that they seek no reversal of this judgment because of a lack of evidence. In fact, there was no defense made to the charge. Their contentions are based on alleged errors of law; only two of which we find it necessary to discuss.

First, it is contended that the court improperly overruled the motion for continuance. The motion for continuance is as follows:

“Comes now the above-named defendant, George Foster, and moves the court for a continuance of said cause to the next regular term of this court, for the reason that he cannot safely proceed to trial at* this time for want of material and necessary testimony, which the defendant, with due diligence, has been unable to procure.
“That if Boyd Pinn were present upon the trial of this cause, or his deposition taken, he would testify as follows: ‘My name is Boyd Pi'nn. I am 23 years old. Reside in Me-Clain county, Okla. I am now and have been for two or three years last past acquainted with the defendant, George Foster, and was acquainted with the deceased, Ed Greenhaw, on December 6, 1911, the day he was killed, and had known him for two or three years prior thereto. That on December 5, 1911, I saw the deceased and one Katie Flanagan at or near the residence of defendant, George Foster, in McClain county, Okla., and I had a conversation with the deceased at or near the barn on the premises of the said defendant in which he said to me, “I have brought Katie Flanagan here today, and I understand that George Foster (the defendant) has said that she could not come back to her mother’s home again, but I told her I would take her over there and see that George Foster did not run her off.” That thereafter, and on the following day, to wit, December 6, 1911, in the afternoon of said day, I went into the horse lot of the said defendant on his premises, and met the deceased at or near the barn, and engaged in a conversation with him, in which I said: “Hello, Ed! I understand you did not keep George Foster (the defendant herein) from running Katie Flanagan off yesterday.” To which he replied: “Yes, he (George Foster) got the best of me yesterday. He had the advantage of me, but I brought him over here to-day, and he is now in the house, and I am playing good to him to-day so that I may get in with him, and the first opportunity I am going to get even with the son of a bitch, and the first time he gives me a chance, I will fix him. I have the dope in my pocket to do it with.” He then pulled a pistol out-of his pocket and says, “Here it is.” Shortly after this, the defendant, George Foster, came out to the barn from his house and said: “Ed (referring to deceased), I will catch my horse and ride over to Knox’s, and you can take your team and buggy and go to the dance or home, as you like. I am going back to Norman tonight.” Whereupon the deceased said: “No, you won’t do anything of the kind. Come on and I will take you over to Knox’s in the buggy, and then we will go to Norman together.” And following the conversation the deceased and the defendant got into the buggy and rode off together towards Knox’s.’
“If the witness Oscar Maxwell were present upon the trial of this case, or his deposition taken, he would testify as follows: ‘My name is Oscar Maxwell. I am 25 years old and reside in McClain county, Okla. I am now, and have been for two or three years, well and personally acquainted with the defendant, George Foster. That on December 6, 1911, I was, and for - a year or more prior thereto had been, acquainted with the deceased, Ed Greenhaw. I am also acquainted with Katie. Flanagan. That on December 5, 1911, I saw the deceased, in company with said Katie Flanagan, in the neighborhood of defendant’s residence in McClain county, Okla., at which time I had a conversation with the deceased in which he said: “I took Katie Flanagan (this woman here in the buggy with me) up to Susan’s house (referring to the mother of the defendant) this morning, and she told me that George (referring to defendant) said that she (Katie Flanagan) could not come back on the place again, and that if she did there might be trouble.” But the deceased said: “I don’t care what they say, I am going to take her back up there this afternoon, trouble or no trouble. I am not afraid of George Foster or any other son of a bitch.” ’
“If the witness Fred Brunner were present upon the trial of this cause, or his deposition taken, he would testify as follows : ‘My name is Fred Brunner. I reside in McClain county, Okla. I knew the deceased in his lifetime and am acquainted with the defendant, George Foster. That on December 6, 1911, the day of the killing, I had a conversation with the deceased at or near the residence of--Knox, in McClain count}', Okla., in which I asked the deceased if George Foster did not make him and Katie Flanagan leave his premises the day before, and he said: “Yes, he did. Fie had the advantage of me at that time and made me leave.” I then asked him if he were afraid of Foster, to which he replied: “No, I am not afraid of him or any other man, and the first opportunity I get I will even the matter up with him; I fixed for him to-day, and I will even that matter up with him before to-morrow morning.” And took a pistol from his pocket and showed it to' me and said, “This is what I will fix him with.” At that time the defendant had come up to the residence of Mr. Knox. This conversation'occurred about dark on the evening of December 6, 1911. The deceased, Ed Greenhaw, at that time appeared to be considerably under the influence of liquor.’
“That if the witness Will Byers were present upon the trial of this cause, or his deposition taken, he would testify as follows: T reside in McClain county, Okla. I am acquainted with George Foster, the defendant, and was also acquainted with Ed Green-haw in his lifetime. On December 6, 1911, I met the deceased, Ed Greenhaw, at or near the residence of defendant in McClain county, Okla., and in a joking way said to him: “I understand George Foster made you leave his mother’s place yesterday.” And in reply he said: “Yes, he did, but he will never do it again, and I am intending to get even with Foster the first good opportunity, and I' am prepared to do so.” At this time he slapped his hand on his pocket and said: “Here is the dope for him.” ’
“If the witness George Jacobs were present upon the trial of this cause, or his deposition taken, he would testify as follows : ‘My name is George Jacobs. I reside in McClain county, Okla., and am acquainted with George Foster, the defendant, and was also acquainted with Ed Greenhaw, the deceased, during his lifetime. • That on December 6, 1911, the day of the killing, I met the deceased, Ed Greenhaw, at or near the residence of defendant in McClain county, Okla., and had a conversation with him in which the deceased said: “George, was there any eyewitness to the killing of Dr. Burford at Byars, Okla.” And Jacobs replied: “No, Sam Fisher was close to the shooting, but there were no eyewitnesses.” The deceased then said to me: “Well, George, you have been through the killing proposition, and I want your advice on a little matter.” The deceased said: “Well, I got an Indian by the name of Foster. I guess you know him — George Foster. He has made two or three cracks at him, and he is a dam bad Indian, and I think the best thing I can do is just to get him out by Himself so I can be the only witness to the affair myself, for I know that it is coming to •a show down.” I said to him: “Now, I have been through this trouble of being tried for murder. My advice to you is to - leave the country before killing anybody. It is cheaper.”' Deceased then replied: “By God, I have never left any country, but I don’t want to get in so deep that I can’t get out, and, if there is nobody left to tell the tale büt me, I ought to stand a pretty good show.’’ ’
“Defendant further states: That he cannot prove the above and foregoing facts by any other witnesses known to him. That said witnesses reside in McClain county, Okla., and are only temporarily away from home on a visit or business, and that the fact of their absence from home was not known to defendant, or his attorneys, until two days ago, and have just learned of their whereabouts. That the absence of said witnesses is due. to no fault of the defendant and was not caused by the procurement, connivance, or consent of the defendant. That said witnesses are respectable, reputable law-abiding citizens of said county, and that they have a good, strong, personal appearance, and their presence in open court will materially aid the defendant in the trial of this cause. That the above statements of said witnesses are true and correct, as the defendant verily believes.
“The defendant further states that, if said cause is continued for the term or postponed for a reasonable time, he can procure the attendance of said witnesses or take their depositions.
“Defendant further states: That on July 3, 1912, being the 3d day of the July, 1912, term of this court, he caused an affidavit and praecipe to be filed with the clerk of this court, showing the residence of said witnesses and requesting that a subpoena be issued. The affidavit and praecipe are hereto- attached, marked Exhibits A and B, and made a part hereof. That thereafter, and upon said day, subpoenas were issued by the clerk of said court for said witnesses, directed to the sheriff of McClain county, Okla. That said subjioenas, together with the sheriff’s return thereon, are hereto attached, marked Exhibits C and D, and made a part hereof, showing that the witnesses Fred Brunner, Oscar Maxwell, Boyd Pinn, and George Jacobs could not be found in said county. That thereafter, and on or about the 18th day of July, 1912, and within a short time after the return of said subpoenas showing no service upon the witness George Jacobs, in McClain county, Okla., the defendant caused an affidavit and praecipe to be filed requesting that a subpoena be issued to the sheriff of Grady county, Okla.; he being advised that said witness George Jacobs might be found at or near Middleburg, in said county. The affidavit and prae-cipe so filed are hereto attached, marked Exhibits E and F, and made a part hereof. That thereupon, and upon- said day, a subpoena was issued for said witness, directed to the sheriff of Grady county, Okla., but that the said sheriff has not made or filed herein his • return upon said subpoena, and the defendant is unable to ascertain whether said witness has been served or not.
“The defendant further states: That, in the event your honor does not see proper to continue said cause for the term, the trial of said cause be postponed for a reasonable time so that he may have an opportunity to procure the attendance of said witnesses, or take their deposition. That this application is not made for the purpose of vexation or delay, but in order that justice may be done the defendant in the trial of this cause, and that he may be able to present his defense fully in said cause.
“Defendant further states that he has been incarcerated in jail since the date of the alleged killing of deceased, and on account thereof he has not had an opportunity to properly prepare his case for trial.”

We are of opinion that this motion on its face does not come within the rule uniformly followed by this court. In the case of Rhea v. Territory, 3 Okla. Cr. 230, 105 Pac. 314, this court said:

“It is not enough, in an application for a continuance in a murder case, to allege that the defendant expects to be able to prove by the absent witnesses that the deceased threatened to kill the defendant; but the application should go further and allege that the defendant will be able to prove that, at the time of the homicide, the deceased, by some act then done, caused the defendant to believe that the deceased was then about to carry such threats into execution.”

The motion does not contain any allegation that the accused would be able to prove that at the time of the homicide the deceased by any overt act there committed caused the defendant to believe that he was then about to carry out any threat theretofore made, nor was an)r proof offered at the trial by the accused that indicated that the deceased had committed any act of aggression.

In Saunders v. State, 4 Okla. Cr. 264, 111 Pac. 965, Ann. Cas. 1912B, 766, this court said:

“Threats made by the deceased are not admissible at all, unless there is first introduced some evidence, other than the threats themselves, tending to show that the deceased at the time he was killed was making some overt act or demonstration which furnished the defendant reasonable cause to believe that he was in danger of being killed or of receiving great bodily injury at the hands of the deceased.”

In the same opinion the court further said:

“The law does not permit one to kill another merely because the other has made threats against him, and unless the deceased at the time of the fatal difficulty, without being willfully provoked thereto by the defendant, and without the defendant having sought the difficulty or having voluntarily entered into it. made some overt act or demonstration indicating to the defendant, as a reasonable man, an intention to kill him or to do him some great bodily injury, then any threats previously made against or communicated to the defendant are immaterial for any purpose in the case; and the jury should be so instructed. We therefore find no error in the instruction given. Morris v. Territory, 1 Okla. Cr. 617, 99 Pac. 760 [101 Pac. 111]; Reed v. State, 3 Okla. Cr. 589, 103 Pac. 1042; Wigmore on Evidence, vol. 1, secs. 110 and 111.”

In Fralcy's Case, 4 Okla. Cr. 91, 111 Pac. 663, this court said:

“Furthermore, the killing being admitted, the reputation or character of the deceased and the matter of threats made by him, whether communicated or uncommunicated, are neither relevant nor material, unless some evidence is first introduced tending to show that the defendant acted in his' real or apparent necessary self-defense, which has not been done in this case.”

We are not prepared to say that the trial court committed reversible error in denying this application. There are always man}'' facts and circumstances in connection with the trial of a case that cannot be made to appear from the record. The application was addressed to the sound discretion of the trial court, and that discretion having been exercised, and we, being unable to determine from the record that a contrary result would have been secured by a delay of the case, cannot say that the judgment should be reversed on this ground.

It is next contended by counsel that the court erred in giving certain instructions. The position of 'counsel, as stated in their brief, is as follows:

“The court, in giving these two instructions, and particularly •instruction No. 6, places the burden upon the defendant to prove that he was not guilty, beyond a reasonable doubt, for he said in substance, in instruction No. 6, ‘If you do not believe the defendant guilty, beyond a reasonable doubt, you should acquit him, after considering all the evidence,’ thereby placing the burden upon the defendant to satisfy the jury, beyond a reasonable doubt, that he was not guilty, whereas it is the duty of the prosecution to prove the defendant guilty, beyond a reasonable doubt.”

In support of this contention counsel cite, among other cases, McGill v. State, 8 Okla. Cr. 500, 129 Pac. 75. In this McGill case the instruction upon which reversal resulted was in the following language:

“If you believe from all the evidence, facts, and circumstances in the case, beyond a reasonable doubt, that .he did have said liquors in his possession for his own use only, and not for the purpose of sale, or any part thereof, then you will find the defendant not guilty.”

We are unable to see the application of the doctrine of the McGill case to the contention of counsel in the case at bar.

There are other assignments of error, among them assignments based on the admission of incompetent and immaterial testimony. A careful reading of the record discloses tbe fact that certain evidence, which had no bearing upon issues in the case on trial, was introduced, the character of which, however, was not sufficiently prejudicial to justify reversal in the light of all the facts disclosed by the record.

The jury failed to agree on the punishment, and the court, in fixing it, imposed a sentence of eighteen years in the state penitentiary. After a careful reading of the record, we are of opinion that the judgment is excessive, and that substantial justice requires that it be modified from eighteen years to ten years in the state penitentiary; sentence to run from date of the original judgment. As thus modified, the judgment, in our opinion, should be affirmed.

Affirmed.

DOYLE and FURMAN, JJ., concur.


author: DOYLE, J.

text:
    JOHN WILLIAMS v. STATE.
    No. A-2174.
    Opinion Filed June 30, 1914.
    (141 Pac. 453.)
    APPEAL- — -Dismissal. Where a defendant has been convicted and sentenced. and perfects an appeal, this court will not consider his appeal, unless defendant is where he can be made to respond to any judgment or order which may be rendered in the case. And where a defendant makes his escape from the custody of the law, and becomes a fugitive from justice, the appeal will be dismissed.
    (Syllabus by the Court.)

      Appeal from District Court, Kiowa County; James R. Tolbert, Judge.

    John Williams was convicted of cattle stealing, and appeals.
    Appeal dismissed.

      Ruimnons & Logan, for plaintiff in error.

      C. J. Davenport, Asst. Atty Gen., for the State.
   DOYLE, J.

The plaintiff in error, John Williams, was convicted in the district court of Kiowa county on an information wherein he was charged with the larceny of five cows, the property of D. H. Van Kirk. Said larceny is alleged to have been committed on the 2d day of May, 1913. The trial was had at the May, 1913, term of said court. The jury returned a verdict of guilty. On the 26th day of July, 1913, the court pronounced judgment and sentenced plaintiff in error to be imprisoned in the penitentiary for a period of three years. To reverse the judgment, an appeal was taken by filing in this court on January, of this year, a petition in error with case-made. On April 2d a motion to dismiss the appeal was filed in this court, on the ground that plaintiff in error was a fugitive from justice, and notice of the same was served on his counsel of record. No response has been filed.

On the facts as averred in the motion, and by affidavit in support thereof, we think the motion to dismiss the appeal should be sustained as coming within the following rule declared by this court in numerous decisions:

“The Criminal Court of Appeals will not consider an appeal, unless the defendant is where he can be made to respond to any judgment or order which may be rendered in the case; and, where the defendant makes his escape from the custody of the law, and is at large as a fugitive from justice, this court will on motion dismiss the appeal.” (Tyler c. State, 3 Okla. Cr. 179, 104 Pac. 919, 26 L. R. A. [N. S.] 921; Belcher v. State, 9 Okla. Cr. 50, 130 Pac. 515.)

It is our opinion that plaintiff in error has waived the right to have his appeal in this case considered and determined. The appeal is therefore dismissed.

ARMSTRONG, P. J., and FURMAN, J., concur.


text:
    JOE BELL v. STATE.
    No. A-1964.
    Opinion Filed July 8, 1914.
    (141 Pac. 804.)
    1. ELECTIONS — Unlawfully Attempting to Vote — Information—Sufficiency. An information charging that the defendant ‘ ‘ did unlawfully, willfully, and knowingly offer to vote, and then and there, knowing himself not to be a qualified voter, ” at a primary election, held at the time and in the precinct where the defendant offered to vote, and alleging the particular disability that disqualified the defendant, is sufficient to charge a violation of the Penal Code (Eev. Laws 1910, sec. 2115).
    2. SAME — Unlawfully Attempting to Vote — Information — Judicial Notice. Courts take judicial notice of the time for holding, and purpose of, primary and general elections.

      3. SAME — “Primary Election.’’ A primary election is one for the nomination of candidates of the respective political parties by the members thereof.
    4. SAME' — Party Nominations. Party nominations by primary election is a fundamental principle of popular government, and is a permanent rule of public policy in this state, as declared by Const, art. 3, sec. 5 (section 47, Williams’).
    ■5. SAME — Primary Elections — Qualifications of Electors — Constitutional Provisions. This provision of the Constitution recognizes political parties, for the purpose of nominating candidates for elective offices, and contemplates that only electors who are members of political parties shall participate in primary elections for the selection of candidates for the respective parties, and then vote only the ballots of the party of which they are members.
    '6. SAME — Primary Elections — Qualifications of Electors. The qualifications of electors entitled to vote at a primary election are the same as the qualifications of electors entitled to vote at the general election, within the election precinet where the primary election is held, except that in addition thereto the elector participating in a primary election must be a member of a party recognized by the official ballots of such primary.
    7. SAME — Unlawfully Offering to Vote — What Constitutes Offense —Question for Jury — Proof—Intent. On the question of intent in unlawfully offering to vote, honest ignorance of the disqualifying fact negatives the willful intent, and excuses what would otherwise be an offense. The intent with which the unlawful act was done may be proved by evidence either directly or indirectly tending to establish the fact, or by inference of law from other facts proved, and the question as to whether or not the defendant knew he was not a qualified voter is a question of iact to be determined by the jury.

      8. SAME — Unlawfully Attempting to Vote — Sufficiency of Evidence. In a prosecution for unlawfully offering to vote, knowing himself not to be a qualified voter, the evidence is held to be sufficient to sustain the verdict and judgment of conviction.
    (Syllabus by the Court.)

      Appeal from County Court, Seminole County; A. S. Norvell, Judge.

    Joe Bell was convicted of the offense of unlawfully attempting to vote, and appeals.
    Affirmed.

      J. A. Baker, for plaintiff in error.

      Chas. West, AVcy. Gen., and Chas L. Moore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Joe Bell, plaintiff in error, was tried and convicted on an information which, omitting formal parts, charged:

“That on the day and date above mentioned and in said county and state did unlawfully, willfully, and knowingly offer to vote and then and there, knowing himself not to be a qualified voter, did in Seminole county and state of Oklahoma, on the 6th day of August, 1912, which was the date of the primary election in said county and state aforesaid, for the election of county, state, national, district, and township officers of the different parties, which said election was then and there being lawfully and regularly held in said county and state as aforesaid, present himself at the polls in said election, in Lincoln township voting precinct No. 2 for the purpose of voting, and he, the said Joe Bell, had not been a resident of the state of Oklahoma for one year at the time of holding said election; the said Joe Bell then and there knowing himself not to be a qualified voter, as is by law required, contrary to,” etc.

On the 10th day of March, 1913, judgment was rendered, and in accordance with the verdict of the jury the court sentenced the defendant to be confined in the county jail for a period of 90 days. Hedías appealed from the judgment.

A substantial statement of the evidence is as follows:

John Randle testified that he was the duly appointed, quálified, sworn, and acting election inspector, precinct No. 2,' Lincoln township, Seminole county, at the primary election held on the 6th day of August, 1912; that said election in said precinct No. 2 was held' at the Shipley Schoolhouse; that the defendant, a negro, came in and wanted to vote, and he asked him his name, and he said it was Joe Bell; that he told him that he would have to apply the test required by law, and the defendant failed to qualify, and he told him he could not vote; that the defendant then demanded a ballot. That witness and Ike Waite, an election judge of said precinct, were jointly charged in the federal court, and arrested for enforcing “the Grandfather Clause” at said primary election, and upon their preliminary hearing on the 17th day of October, 1912, before the United States commissioner at Holdenville, the defendant 'testified as a witness against them, and in answer to a question as to how long he, the defendant, had been a resident of Oklahoma, he heard the defendant state that he had been in the county six months, and in the state of Oklahoma ten months.

I. W. Waite, the other witness for the state, testified that he was one of the judges of the election at precinct No. 2, Seminole county, and was there when the defendant offered to vote; that he was present when the defendant, as a witness for the government, testified before L. S. Fawcett, United States commissioner at Holdenville, and heard him state that he went to the Shipley Schoolhouse in precinct No. 2 in Seminole county to vote at the primary election held on August 6, 1912, and the defendant, in answer to a question asked him as to how long he had been a resident of Oklahoma, answered about ten months.

The defendant requested the court fa> advise the jury to return a verdict of not guilty, which was overruled, and exception taken. The defendant'offered no evidence.

The preface of the brief submitted by the learned counsel for the defendant is as follows:

“Our ignorance is not feigned when we say we do> not know of what offense the defendant was convicted. We here give the facts with the hope that the court may enlighten the defendant, as well as his counsel, as to the offense of which he stands convicted.”

It is first contended that the information is insufficient to charge any public offense, known to' our law, and for this reason the court erred in overruling the demurrer thereto. The conviction is for the offense of unlawfully attempting to vote in violation of the provision of the Penal Code, which declares it to be an offense for:

“Any person knowing himself not to be a qualified voter,, who votes or offers to vote at any election, shall be punished by fine not exceeding two hundred dollars, or by imprisonment in the county jail not exceeding six months.” (Section 2115,. Rev. Laws.)

It requires only a cursory reading of the statute to show that the demurrer was not well taken. The information, stripped of its redundancy, charges the offense substantially in the words of the statute, and alleges that a primary election was held at the time, and in the precinct, and that the defendant, Joe Bell,, presented himself at the polls of said election precinct, and did unlawfully, willfully, and knowingly offer to vote, then and there knowing himself not to be a qualified voter, and alleges, the particular disability that disqualified the defendant.

It is argued that the information should allege what the defendant was offering to vote for, and that it is not alleged that the defendant offered to vote in or at an election being held under the law.

Our Procedure Criminal provides:

“Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in an indictment or information.” (Section 5748, Rev. Laws.)

Courts take judicial notice of the times for holding, and purpose of, primary and general elections.

In the case of Ex parte Wilson, 7 Okla. Cr. 610, 125 Pac. 739, it is said:

“Party nomination by primary elections is a fundamental principle of popular government; and is a permanent rule of public policy, as declared by provisions of our state Constitution: Article 3, sec. 5, Const. (section 47, Williams’) : ‘The Legislature shall enact laws providing for a mandatory primary system which shall provide for the nomination of all candidates in all elections for state, district, county, and municipal officers, for all political parties, including United States senators: Provided, however, this provision shall not exclude the right of the people to place on the ballot by petition any nonpartisan candidate.’ And Const, art. 3, sec. 6 (section 48, Williams’): 'In all elections by the people the vote shall be by ballot and the Legislature shall provide the kind of ticket or ballot to be used and make all such other regulations as may be necessary to detect and punish fraud, and preserve the purity of the ballot.’ * * *
“Upon careful consideration, we are of opinion that the constitutional provisions contemplate that only electors who are members of political parties shall participate in the primary election for the selection of candidates for the respective parties, and then vote only the ballot of the party of which they are a member, and that nonpartisan electors having no party affiliations are relegated to their right to participate in the nomination of candidates for elective office by petition in the manner provided for by the primary election law. A few plain and unquestionable propositions will sufficiently present the views of this court in support of this position.
“The mandatory primary election provision of the Constitution and the provision of article 3, sec. 4, Const, (section 45, Williams’), ‘the Legislature shall enact laws creating an election board, not more than a majority of whose members shall be selected from the same political party,’ are a constitutional recognition of political party organization. * * * From the provisions of the primary election law enacted in accordance with the constitutional direction, the intent of the Legislature would appear to be manifest. Its plain purpose is to provide for and regulate the nomination of candidates by political parties, and thereby preserve the purity of elections, upon which must depend the safety and security of republican forms of government. A mandatory primary election law, to be valid, must sustain the constitutional rights of electors, who, as members of a political party, participate in such primary elections; and it will not be presumed that the Legislature intended to deny the political parties or members thereof participating in the primary elections proper protection under the law.
“The election provisions of the Constitution and the mandatory primary election law were intended for the protection of the party, and of the citizen in his rights as a member of a political party, and guarantee to him the right to express, through his ballot at a primary election, his wish as to the conduct of the affairs of his own party, and his preference in the selection of the candidates for office within his party. If this was not so, an elector participating in a primary election -would be powerless, and without any method or means of protecting this right conferred upon him by the Constitution and law. * * *
“A primary election is one for the nomination of candidates for office of the respective political parties by the members thereof. If Republicans vote the Democratic party ballot, and Democrats vote the Republican party ballot, and Socialists vote any ballot but their own, then nominations so made cannot be said to be party nominations.
“It needs no argument for the position that to permit electors participating in a primary election to- vote indiscriminately any party ballot they might choose to select, regardless of their party affiliations, wo-uld be simply putting a premium upon deceit, dishonesty, and fraud, and would make it possible for the worst elements of the several political parties participating to direct and control their nominations. Obviously all of the provisions of the primary election law were enacted by the Legislature to prevent electors from voting any ballot except that of their respective parties, and thereby prevent fraud and preserve the purity of the ballot. The constitutional provision and the primary election law provide only for party elections. The right and privilege of the individual voter at the general election to cast his vote untrammeled for the candidate of his choice is no more sacred than the right of the individual member of a political party to express his choice for party candidates at a primary election; and such right cannot be taken from him without abridging his constitutional right to participate in a free and equal election. Const, art. 3, sec. 7. * * *
“The members of the several political parties have the constitutional right to select their candidates for office with the same freedom as they have the right to vote for them after they are nominated, or the primary election at which they vote for candidates is a delusion and a fraud upon the individual voter. If the independent voter, or the voter affiliating with an opposition party, can vote at the primary election the ballot of a party with which he has no political affiliation, and thereby control the nominations of a party to which he is opposed, the constitutional guaranty that ‘the -election shall be free and equal’ would be destroyed.
“Where primary elections for the nomination of party candidates are held, as authorized and required by law, under the supervision and inspection of election officials, including a party watcher present, as provided by section 3277, supra, it is not a violation of the Constitution that all electors are not permitted to vote at such primary election. * * *
“A citizen’s only right to vote depends upon his qualifications under the Constitution and the law, and this right is subject to limitations of age, ancestry, residence, and sex, and other matters mentioned herein. The qualifications of electors entitled to vote at a primary election are the same as the qualifications of electors entitled to vote at the general election within the election precinct where the primary is held, except that, in addition thereto, -the elector participating in a primary election must be a member of some party recognized by the official ballots of such primary.”

Sections 1 and 4a of article 3 of our state Constitution prescribe the qualifications and disabilities of electors, and section 3132, Rev. Laws, defining the crime of illegal voting, reads as follows:

“Any person not entitled to vote at any election in this state, who exercises that right and casts his vote, whether he be ■challenged or not, shall be guilty of a felony, and upon conviction shall be confined in the state prison not less than one year nor more than three years.
“Any person who procures a person to vote when such person is not entitled to vote, under the provisions of this act, shall be deemed guilty of a like offense, and subject to a like penalty.
“In the prosecuting of one procuring the casting of any illegal vote, if it is shown that the accused insisted and persuaded ■or urged the party to vote, this shall be a presumption of guilt.”

And section 2803 of Rev. Laws 1910 provides:

“Any person who attempts to commit any crime, and in such attempt does any act toward the commission of such crime, but fails or is prevented or intercepted in the perpetration thereof is punishable,” etc.

And in -the act of 1913, relating to primary and general ■elections, and prescribing the penalties for the violations of the provisions thereof, the crime of illegal voting is made a felony .and a conviction carries with it disfranchisement for ten years. Sec. 23, c. 157, Session Laws 1913.

The crime of illegal voting may be committed by a person ■casting an illegal vote, at a primary or general election, knowing himself not to be legally qualified to vote.

It may be said that the law intends that every qualified elector should have the opportunity to freely cast his ballot, and have it honestly counted, and every elector has the right to have his vote counted for all it is worth in proportion to the whole number of qualified electors participating in any primary or general election held in this state. Now, if persons not legitimately entitled to vote are permitted to do so, the legal voter is denied his adequate, proportionate share of influence, and the result is that the election as to him is unequal in that he is denied the equal influence to which he is entitled with all other qualified electors. The laws enacted to preserve the .purity and freedom of elections are adequate in their scope, and ample for the punishment of crimes against the elective franchise, whether committed by the voter, or upon the voter, and if our elections are not free, fair, and honest, the fault does not lie with the legislative department of the government.

Next the defendant’s counsel insists that the evidence is insufficient to justify a conviction, and insufficient to warrant a submission of the same to the jury, and in refusing to so advise the jury and direct an acquittal the court erred.

The undisputed facts in evidence on the part of the state show that the defendant, at a primary election being held according to law, being disqualified as an elector, not having been a resident of the state for one year, offered to yote. The only possible question that can arise is the sufficiency of the evidence to show that the defendant knew that he was not a qualified voter when he offered to vote.

It appears from the evidence that when the defendant failed to qualify 'on the test of his ability to' read and write any section of the Constitution he again offered to vote and demanded a ballot. There was no evidence tending to show that he acted innocently, and under a mistaken claim of right, or that he acted under the honest belief that he was a qualified elector. We think that, on the evidence adduced, the question whether or not he acted willfully was for the jury. It is a familiar principle that no act done, or attempted to be done, can be an offense without willful intent. On the question of intent in illegal voting, or attempting to vote illegally, honest ignorance of the disqualifying fact negatives the willful intent, and excuses what would otherwise be an offense. However, ignorance of law will not be presumed. Every man is bound to know that the law requires that every voter shall be a male citizen of the United States, and of the state, of the age of 21 years, and have resided in the state one year, in the county six months, and in the election precinct 30 days next preceding the election, and must not have been convicted of a felony after the adoption of the Constitution, unless his citizenship shall have been restored in the manner provided by law, and he is bound to exercise reasonable diligence to ascertain the facts which enter intq and form these qualifications. The intent with which the unlawful act was done may be proved by evidence either directly or indirectly tending to establish the fact, or by inference of law from other facts proved. Where there is evidence tending to prove the material elements of the offense charged, the question as to whether or not the defendant knew he was not a qualified voter is a question of fact to be determined by the jury. The question in this case was fairly before the jury on the evidence adduced and the charge of the court, to which no exception was taken.

Our conclusion is that the defendant had a fair trial, and was properly convicted. Finding no error in the record, the judgment of the lower court is, affirmed.

ARMSTRONG, P. J., and FURMAN, J., concur.


text:
    W. H. WAINWRIGHT v. STATE.

      No. A-2234.
    Opinion Filed July 27, 1914.
    (141 Pac. 1120.)
    BAIL — Conviction—Form of Bond. Under Bill of Bights, sec. 8, bail is a matter of right before conviction, “except for capital offenses when the proof of guilt is evident, or the presumption thereof is great. ” The right of bail after conviction pending-appeal is purely statutory, and would not exist in the absence of the statute. The statute prescribes the form and conditions of the bond, and a defendant is not entitled to bail pending-appeal, except upon a bond conditioned as required by the statute.
    (Syllabus by the Court.)

      Appeal from Superior Court; Muskogee County; Farrar L. McCain, Judge.

    W. H. Wainwright was convicted of embezzlement, and brings error.
    Motion to admit to bail granted on

      S. M. Rutherford and No ffsinger & Broome, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., W. B. Disney, Co-. Atty., and B. B. Blakeney, for the State
   ARMSTRONG, P. J.

This appeal is from a judgment of conviction rendered in the superior court of Muskogee county on the 14th day of March, 1914, in accordance with the verdict of the jury finding the defendant guilty of the crime of embezzlement of public funds to the amount of $7,500, and assessing his -punishment at imprisonment for a term of fourteen years, and a fine of $15,000. On April 14, 1914, the appeal was taken by filing a transcript of the record in this court, together with an application for bail, wherein this court is asked to permit the defendant to give bail conditioned for his appearance only, and specifically exempting him and his sureties from any liability for the payment of the fine in case the judgment should be affirmed.

The transcript shows that when the judgment was rendered bail was fixed by the trial court in the sum of $20,000, and a bond conditioned as provided by statute. Counsel for plaintiff in error have made no question about the excessiveness of the amount of bail as fixed by the trial court, but contend that the defendant is entitled to give bail conditioned for his appearance only.

Bail is a matter of right before conviction in all cases “except for capital -offenses when the proof of guilt is evident or the presumption thereof is great.” Section 8, Bill of Rights, Okla. Const. The right of bail after conviction is purely statutory, and would not exist in the absence of the statute giving the right. The statute prescribes the form and conditions of a bail bond pending determination of the appeal.

The court is of opinion that bail on appeal must be given in the form prescribed by the statute. The amount of bail fixed by the trial court should be required in the absence of any showing or contention that the amount so required is excessive. Bail having been fixed at $20,000 by the trial court, to be approved by the clerk of said court with good and sufficient sureties, the order of this court will be, and is, the same. It is further ordered that the order heretofore made by this court directing the sheriff of Muskogee county to hold the accused in the county jail of Muskogee county until the further order of this court, is hereby canceled and revoked, and, upon the failure of plaintiff in error to give bail in the manner and form herein required before the 1st day of August, 1914, the sheriff of Muskogee county is directed to forthwith transport the plaintiff in error to the state penitentiary, there to be confined pending the determination of his appeal.

DOYLE, J., concurs. FURMAN, J., absent on account of sickness.


text:
    S. E. HUGHES v. STATE.
    No. A-2069.
    Opinion Filed August 8, 1914.
    (141 Pac. 1178.)
    HOMICIDE — Manslaughter in the First Degree — Sufficiency of Evidence. The evidence upon the trial of an information for murder examined and held to be sufficient to support a verdict of manslaughter in the first degree.
    (Syllabus by the Court.)

      Appeal from District Court, Atoka County; Summers Hardy, Judge.

    S. E. Hughes was convicted of manslaughter in the first degree, and appeals.
    Affirmed.

      Liuebaugh Bros. & Pinson and Utterback, Hayes & McDonald, for plaintiff in error.

      Chas. West, Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error was convicted of manslaughter in the first degree, on an information filed in the district court of Atoka county, on the 31st day of January, 1913, wherein it is charged that S. E. Hughes, in said county, did on or about the 28'th day of September, 1912, commit the crime of murder by cutting and stabbing one E. Pickens. In accordance with the verdict of the jury on the 20th day of February, 1913, the court sentenced the defendant to imprisonment in the penitentiary for a term of four years. To reverse the judgment, the defendant appealed by filing in this court on August 15, 1913, a petition in error with case-made.

The evidence shows that the deceased, the defendant, and all the parties concerned were negroes; that on the day alleged, at a ball game in Stringtown, the deceased, East Pickens, and Grit Quirk were scuffling, and the defendant ran up with an open knife in his hand and stabbed Pickens in the back, resulting in his death four or five days later. There is no dispute about the fact that the defendant cut and stabbed the deceased.

The defendant, as a witness in his own behalf, attempted to justify his act on the ground of self-defense. Fie 'testified that he went to where Quirk and Pickens were having trouble, intending to stop it; that, just before he reached them, the deceased, East Pickens, turned and came towards him with a knife in his hand, saying, “I am going to fix you,” and he stabbed him in self-defense.

We think there can be no doubt from the evidence that the defendant, without provocation, stabbed the deceased. The proof tends to show that the motive was jealousy. No brief has been filed on behalf of the defendant, and we have not been favored with an oral argument in his behalf. We have carefully examined the record and do not find that it contains any error prejudicial to the rights of the defendant. In fact, his trial was eminently fair. It is apparent that justice has been done, and that the duty of this court is fully performed by an affirmance of the judgment.

The judgment of conviction is, therefore, affirmed.

ARMSTRONG, P. J., and FURMAN, J., concur.


text:
    KARL FEIGE v. STATE.
    No. A-1929.
    Opinion Filed September 9, 1914.
    (142 Pac. 1044.)
    1. PHYSICIANS AND SUEGEONS — Arrest of Judgment — Sufficiency of Information, (a) An information which fails to state a public offense under the statute is subject to attack by a motion in arrest of judgment, and, when this issue is properly raised by such motion, the judgment should be arrested by the trial court, and the proceedings set aside, and the county attorney directed to file a proper information.
    (b) Por an information which fails to state an offense under the medical practices act, see opinion.
    2. SAME — Practicing Without Authority — Information, (a) Under section 6910, Eev. Laws 1910, a person who, without a license, prescribes or administers any drug or medicine 'included in materia medica for the treatment of diseases, injuries, or deformities of human beings is subject to prosecution.

      (b) Under this section, one who is not licensed to practice medicine as provided by law can be prosecuted for publicly professing himself to be a physician and prescribing for the sick. The information, however, should be direct and certain as to which of these provisions the state is prosecuting under.
    (Syllabus by the Court.)

      Appeal from County Court, Oklahoma County; John W. Hayson, Judge.

    Karl Feige was convicted of practicing medicine without lawful authority, and appeals.
    Reversed.

      Giddings & Giddings, for plaintiff in error.

      C. J. Davenport,, Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

The plaintiff in error, Karl Feige, was tried and convicted at the September, 1912, term of the county court of Oklahoma county on a charge of practicing medicine without having first procured a proper certificate as provided by law, and his punishment fixed at a fine of $225.

The only question worthy of consideration in this case is the assignment based upon the contention that the court erred in overruling the motion in arrest of judgment. The motion in arrest was founded upon the contention that the information upon which the prosecution is based does not state facts sufficient to constitute an offense against the laws of Oklahoma. Section 6910, Rev. Taws, among other things, provides:

“The following persons shall be deemed as practicing medicine and surgery within the meaning of this article: First. Those who prescribe or administer any drug or medicine now or hereafter included in materia medica in the treatment of disease, injury or deformity of human beings, or who profess publicly to be physicians and ro prescribe for the sick.”

The information in this case, omitting its formal parts, is as follows:

“* * * That the above-named Karl Feige did, in Oklahoma county, and in the state of Oklahoma, on the 28th day of May, in the year of A. D. 1912, commit the crime of practicing medicine without a license in manner and form as follows: That he (the said Karl Feige) did then and there unlawfully, wrongfully, and willfully practice medicine without first having obtained from the state board of medical examiners a certificate as provided by law, entitling him (the said Karl Feige) to practice medicine within the state of Oklahoma, in this, to wit: That be (the said Karl Feige.) did then and there unlawfully and willfully prescribe for, furnish medicine to, and treat one Cornelius A. Prohl, for compensation, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

Section 5739, Rev. Laws, provides:

"The indictment or information must be direct and certain as it regards: First. The party charged. Second. The offense charged. Third. The particular circumstances of the offense charged, when they are necessary to constitute a complete offense.”

The information on its face is wholly insufficient. It should have charged, among other things, the administration of some drug included in materia medica in the treatment of diseases, etc.., or that the accused publicly professed to be a physician and prescribed for the sick.

This prosecution is meritorious, but we cannot overlook a fundamental right. The trial court should have arrested the judgment and directed the prosecuting attorney to file a proper information. Having refused to do so, it becomes the duty of this court to reverse the judgment, and remand the cause, with directions to cause a proper information to be filed and the trial proceeded with as provided by law.

Reversed and remanded.

DOYLE, J., concurs. FURMAN, J., absent and not participating.


text:
    J. J. MARSHALL v. STATE.
    No. A-2025.
    Opinion Filed September 9, 1914.
    (142 Pac. 1046.)
    1. HOMICIDE — Appeal—Ground for Reversal. When a person is tried for murder and convicted of manslaughter in the second degree, and the proof clearly shows that a mjich lighter punishment was imposed than under the law and the facts should have been, this court will not reverse a cpnvietion, in the absence of substantial error.
    2. SAME — Deadly Assault — Justification—Trespass. A landowner is not justified in making an assault upon another with a dangerous or deadly weapon in resisting a trespass on his premises, when no felony is attempted.
    3. SAME — Self-Defense. The law of self-defense is a rule of necessity, and can only be invoked in justification of a homicide, in order to prevent an actual or reasonably apparent compassion of a felony against the person or property, and the necessity mast be imminent at the time of the killing and not prior thereto.
    (Syllabus by the Court.)

      Appeal from District Court, Tillman County; Frank Mathews, Judge.

    J. J. Marshall was convicted of manslaughter, and appeals.
    Affirmed.

      J. B. Red and W. H. Hussey, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

The plaintiff in error, J. J. Marshall, was tried at the January, 1913, term of the district court of Tillman county on a charge of murder and convicted of the included offense of manslaughter in the second degree. I-Iis punishment was fixed at a fine of $1,000 and imprisonment in the county jail for a period of 90 days.

This was a most unfortunate and uncalled for homicide. The deceased was a man 56 years old. The accused is now about 77 years old. It appears that in December, 1912, the deceased was working for the accused in Tillman county, Okla.; that on the afternoon of the homicide they had been down in the pasture to drive up some small calves; that the deceased was directed to stand near a gate and permit no' other stock, except the calves, to go into a certain lot. The accused apparently was driving the calves and other cattle toward this lot. Among the bunch was a bull. The accused, observing that the deceased was paying no attention to his business, in a loud voice directed him to head the bull and not let it go into the lot with the calves, but the deceased paid no attention to this admonition. The accused came on up to where deceased was standing, applied an epithet to him, and asked him why he did not head the bull, whereupon the deceased hit him over the head with a pitchfork. The accused went immediately to his residence, which was about 60 yards away, got a gun loaded with squirrel shot, came back to the lot, and ordered the deceased off the premises. The deceased made no effort to get away. After some few words deceased told the accused not to shoot him. The accused told deceased that he was not going to kill him, but just going to cripple him; that he could not beat him over the head with a pitchfork and stay on his premises. The accused testified that he told deceased to get off the premises; that instead of getting off the premises deceased was advancing toward him with the pitchfork in his hand; that there was wire fence between them, and that the accused was standing near a pump in the lot; that he took aim at deceased and shot him in the leg; that he did not intend to kill him; that he then turned around and went back to the house and put up the gun; that the deceased came up to the house, tried to' get in, and was getting his clothes, when the wife of the accused told him to get away from the place, which he did.

This appeal is without a semblance of merit. Taking the most favorable view of the testimony, which would be the statement made by the accused on the witness stand, he was wholly without justification in the premises.

The sheriff, Frank Carter, testified that the accused told him, immediately after the shooting, that the transaction occurred about as follows:

“Q. What did he tell you about the matter of the shooting? A. Well, about as near as I can remember it, he told me that he and the deceased were trying to pen some cattle and calves, and that there was a bull in the bunch, and that he told the deceased to head the bull; that he let the bull go by and did not attempt to stop him; that he asked him why he did not stop the bull, and that deceased struck him with a pitchfork; that he went to the house and got a shotgun and came back and told' the deceased he was going to shoot him; that he did not want to kill him, but that he was going to cripple him; that he then shot him in the leg.”

The actions of the accused, as outlined by his own testimony, indicate extreme deliberation and no justification whatever.

The only question argued to any extent by counsel for plaintiff in error is based on an assignment alleging error because the court refused to give certain requested instructions. This request appears in the record as defendant’s special instructions Nos. 4 and 5, and are as follows:

“No. 4. You are instructed that every person has the right to act in his own necessary self-defense, and where a person is in a place where he has a right to be, and is not the aggressor in bringing on the conflict, and is assaulted by another person in such a way as to place him in danger of death or great bodily harm, the person thus assaulted is not bound to retreat, but, on the contrary, may stand his ground and repel the danger in which he is placed with such force as will repel the attack and protect his person from serious bodily harm.
“Refused because given in substance in general instructions.
“Frank Mati-iews, Judge.
“No. 5. You are instructed that homicide is justifiable when committed by a person, in the lawful defense of such person, ■or of his or her husband, wife, child, master, mistress, or servant, when there is a reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and imminent ■danger of such design being accomplished.
“Refused because given in substance in the general instructions.
“Frank Mati-iews, Judge.”

• Counsel contend that the defense interposed was that the homicide was committed by the accused in the lawful defense of his person, that of his wife, and that of his home. The issue of self-defense, defense of wife or home, is not raised by the testimony in the record. It is true that the deceased had struck the accused over the head with a pitchfork, which evidently provoked him, but this was not the occasion upon which the shooting occurred, and was not given by the accused as an excuse for the shooting. He walked away to his residence, procured his gun, came back and ordered the deceased off the premises, and then shot him, telling him at the time that he did not intend to kill him. His own testimony was that there was no real or apparent danger of the deceased inflicting upon him any great bodily injury at the time. The wife of the accused was nowhere around, and was at no time engaged in the controversy. The deceased was doing no- injury to the property of the accused, and was not invading his premises as a trespasser, and, even if he had been, under the facts there would have been no justification for the shooting. The deceased lived with the accused, was on the premises by right, had his clothing in the house, and, when the accused ordered him away from the premises, he had a right to procure his belongings and leave the premises without being shot, so long as he did no act of violence and did not attempt to perpetrate any felony. . The deceased had no weapon other than a pitchfork which he had picked up down in the field, and was, according to the accused’s own testimony, several feet away, with a fence separating them.

Counsel attempt to invoke the doctrine announced by this court in the case of Collegenia v. State, 9 Okla. Cr. 425, 132 Pac. 375, but the facts in the Collegenia case and the facts in the case at bar are entirely divergent. In the Collegenia case the deceased and those associated with him. had already discharged firearms into the home of Collegenia and were thoroughly in the wrong. In that case, however, we say:

“It is true that the authorities agree that the taking of life in defense of one’s person, habitation, or property cannot be justified except upon the ground of necessity, actual or apparent, to prevent the commission of a felony on either, and that such necessity must be imminent at the time; and they also agree that no man can avail himself of such necessity if he brings it upon himself.”

Counsel seem to have tried this case and briefed it upon the theory that this accused had a right to resort fi> any force or any act he might desire to compel the deceased to leave the premises, even though no actual demonstration on the part of the deceased required the use of deadly weapons. Such is not the law.

In Dickinson v. State, 3 Okla. Cr. 151, 104 Pac. 923, this court said:

“A mere trespass upon the land of another, even after the trespasser has been warned to depart and has refused, does not justify the landowner to use a dangerous or deadly weapon to resist the trespass, so if one offers to strike with a deadly weapon, although he announces his purpose not to finish the act and commit the homicide, if his terms are instantly complied with (although the terms be such as he has a right to exact and enforce by the rule of mo (iter manns imposit), he is guilty of an assault. The putting in use of a deadly weapon shows a wanton disregard of human life. Clark in his work on Criminal Law, at page 145, lays down the proposition in this terse .and explicit language: 'A person may resist a trespass on his property, real or personal, not amounting to a felony, or removal or destruction of property not feloniously attempted, by the use of any reasonable force, short of taking or endangering life; but if he is unable to prevent it, and there is no felony attempted, he must suffer the trespass and the loss of •property, and seek redress at the hands of the law, rather than commit homicide.’ ”

The rulings of the trial court and the instructions given were eminently fair to the accused, and he received more mercy than he was entitled to at the hands of the jury. The verdict would not have been disturbed by this court had a punishment of ten years’ imprisonment been imposed, and, in all probability, a conviction of murder would not have been unlawful under the statute.

There is no error in the record sufficient to justify a reversal of the judgment. It is therefore in all things affirmed.

DOYLE, J., concurs. FURMAN, J., absent on account of illness.


text:
    ALBERT HALL v. STATE.
    No. A-2041.
    Opinion Filed September 9, 1914.
    (142 Pac. 1044.)
    1. TRIAL — Continuance—Appeal—Discretionary Ruling, (a) A motion for continuance, based upon the ground that counsel were employed immediately prior to the calling of the case for trial, and had no time for preparation for the trial on that account, is addressed to the sound discretion of the court, and his rulings thereon will not be disturbed by this court, unless it clearly appears that such court aeted arbitrarily and not in the dispassionate exercise of the discretion contemplated by law.
    (b)- When an information has been pending more than two terms of court, and the accused has had able counsel employed, and upon the day the cause is set, for trial discharges such counsel and retains other counsel to represent him in the trial of his case without any indication that he was without fault in the premises, and the trial court declines to grant a continuance upon the application of the newly employed counsel, this court will not undertake to say there has been an arbitrary abuse of discretion on the part of the court.
    2. SAME — Continuance—Grounds—Diligence, (a) An application for continuance, based upon the ground that certain material witnesses were absent, is properly overruled by the trial court, when there is no showing that any diligence was used in an effort to procure the attendance of the witnesses desired.
    (b) An accused, who has had a criminal charge pending against him for two or three terms of court, and who has paid money to prosecuting witnesses to leave the jurisdiction of the court, and has at no time had process issued for witnesses in Ms own behalf, is entitled to little consideration of a motion for continuance on the ground of the absence of Ms witnesses, by the trial court, and none by this court.
    3. APPEAL — Review—Denial of Continuance. When an application for continuance has been overruled by a trial court, this court will look to the entire record with a view of determining whether or not an injustice has been done, and when it clearly appears from the testimony introduced at the trial, and especially the testimony of the accused himself, that he has no defense, and that the conviction was just and proper, a judgment will not be reversed, in the absence of fundamental error.
    (Syllabus by the Court.)

      Appeal from District Court, Garvin County; R. McMillan, Judge.

    Albert Hall was convicted of assault with intent to kill, and appeals.
    Affirmed.

      Carr & Field, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

Plaintiff in error, Albert Hall, was tried and convicted at the January, 1913, term of the district court of Garvin county on a charge of assault with intent to kill Clarence McBroom, and his punishment fixed at imprisonment in the state penitentiary for a period of six years.

The difficulty out of which the conviction grew occurred the latter part of November, 1911, in Garvin county, Okla. The plaintiff in error is a man 45 years old, and the injured party a boy about 18 years old. Both are negroes. It appears from the proof introduced at the trial that the plaintiff in error and McBroom went to the home of a neighbor negro, named Russell, on Thanksgiving day; that among others there was at Russell’s home a woman by the name of Gerty Blue. The Blue woman and Clarence McBroom were scuffling on the porch. The plaintiff in error ordered them to behave and not to start anything. The Blue woman answered that they were not starting anything, but playing.

Proof on behalf of the state tends to show that the plaintiff in error had been out in the yard sharpening a knife, the blade of which was about seven or eight inches long. Somebody asked him'for the knife, and he declined to give it up. He walked up to McBroom, caught him by the shirt,, and jerked him off the porch and stabbed him in two. or three places. One of the wounds pierced the lung; the knife going entirely through the body. McBroom begged the plaintiff in error not to cut him any more, saying he had already killed him. Some other person spoke up and cursed the plaintiff in error and told him he could not kill the boy in any such manner. The plaintiff in error put the knife up his sleeve and went away from the house.

The plaintiff in error, in his own behalf, testified that Clarence McBroom and Gerty Blue were quarreling and fussing; that McBroom. was standing in the door and would not let this Blue woman out; that some one called his attention to the fact that McBroom was his relative and asked him to do something with them. He spoke to. McBroom and told him to behave; that McBroom got angry and cursed him and called him a vulgar name; that McBroom picked up a stick of stove wood and started toward him; that it was the first time he was ever abused in that manner; that he grabbed the club McBroom had and cut him. He gave as his reasons for stabbing Mc-Broom that the language McBroom. used toward him made him so mad, and, having the trouble with him, he did not have time to reflect. His testimony in his own behalf is a plea of guilty to the charge. He admits stabbing McBroom when he was unarmed, and all because he was mad and did not take time to reflect.

Counsel in their brief have made no effort to point out any error occurring at the trial of the case proper. They base their sole contention on the ground that the trial court should have granted them a continuance for two reasons: First, because they were employed on the case on the morning the cause was set for trial; and, second, on the ground that certain witnesses were absent.

A careful reading of the record does not indicate an abuse of discretion on the part of the trial court. The plaintiff in error was a negro of means and had able counsel employed prior to the employment of Carr & Field. He had some disagreement with his'counsel on the morning the case was set for tidal, and thereupon made other arrangements. Neither counsel had made any effort to secure the attendance of the absent witness. The record discloses the fact that plaintiff in error had paid the prosecuting witness $105.50 to leave the country and fail to appear as a witness against him in the trial. On the day the case was set for trial at a former term of court, the prosecuting witness was absent by the procurement of the plaintiff in error. It is' absolutely clear to this court that the plaintiff in error was not relying on the assistance of other witnesses, but was relying on his ability to prevent the appearance of the prosecuting witness to testify against him. In our judgment the trial court acted entirely within the reasonable exercise of his discretion, and properly required the case to be tried. The application for the postponement on the ground of absent witnesses for a period of four days may or may not have been meritorious. Nowhere in the record is there an indication that counsel had asked for process, yet they contended their witness was at Marietta, only a short distance south of Pauls Valley. The trial court was confronted with the affirmative proposition that no process had been sought, and no effort made to procure the attendance of the witness by counsel formerly employed; that present counsel, after their employment, had not sought the process of the court to obtain the presence of the witness. Under ordinary circumstances, reasonable time to get process to Marietta and a return of the witness should have been granted, but the trial court was familiar with the facts, and in all probability was familiar with the conduct of the plaintiff in error, as disclosed' by this record. If he had not been, he certainly would have granted time to procure the witness, but, upon a reading of this record and examination of the testimony given by the accused, it is clear that, if the witness had appeared and testified to all that was claimed, the testimony would not have been material, and from the whole record it is entirely clear that the trial court deprived the accused of no1 material right by putting him on trial. If the plaintiff in error had been anything like as diligent in attending to his own-business as he apparently was in endeavoring to run the state’s witness out of the jurisdiction of the court, he would probably be in some attitude to- complain. ■

Zeal of counsel is always appreciated, but in this case it is absolutely without merit. Society was done no wrong in the conviction of this plaintiff in error, and he was deprived of no substantial right. The difficulty was uncalled for and wholly without justification. There is entirely too much inclination on the part of some residents of Oklahoma to resort to force in order to impose their views on others. The law tolerates no such conduct as the accused was guilty of in this case.

The judgment of the trial court was entirely just and proper. It is therefore in all things affirmed.

DOYEE, J., concurs. FURMAN, J., absent and not participating.


text:
    ED MAYES v. STATE.
    No. A-1921.
    Opinion Filed September 9, 1914.
    (142 Pac. 1049.)
    1. PARTIES TO OFFENSES — Accomplice-—Receiver of Stolen Goods. The person or thief who steals property is not an accomplice of the person who receives from him the same stolen property knowing it to be stolen. The thief and the receiver of the stolen goods are each independent criminals, guilty of separate and distinct offenses.
    2. PARTIES TO OFFENSES — “Accomplice.” The test by which to determine whether one is an accomplice -is to ascertain whether or not he could be indicted or informed against for the offense for which the accused is being tried.
    3. EVIDENCE — Accomplices — -Corroboration — Necessity. In the prosecution of a person charged with receiving stolen goods knowing them to be stolen, the thief who stole the goods, not being an accomplice, is a competent witness on behalf of the state, and his testimony requires no corroboration under our statute.
    (Syllabus by the Court.)

      Appeal from District Court, Beckham County; ' James R. Tolbert„ Judge.

      Ed Mayes was convicted of receiving stolen property and appeals.
    Affirmed.

      Hendrix & Tracy and /. A. Minton, for plaintiff in error.

      Smith C. Matson and C. J. Davenport, Asst. Attys. Gen., for the State.
   ARMSTRONG, P. J.

The plaintiff in error, Ed Mayes, was convicted at the October, 1912, term of the district court of Beckham county on a charge of receiving stolen property, and his punishment fixed at imprisonment in the state penitentiary for a period of three years.

On behalf of the state, George Montgomery testified that he was 24 years old and was acquainted with Ed Mayes, the defendant; had known him for several years; witness’ home was and had been for five years in Gray count}'-, Tex.; that he was acquainted with Carl Talley and J. W. Talley; that they live in Gray county, near Pampa, Tex.; that witness is acquainted with Wallace Eletcher and had known him for several years; was acquainted with Wallace Fletcher on January 8, 1909; that in January, 1909, -witness was working on the farm for Ed Wright; that he was acquainted with two brown horses owned by Carl Talley in Pampa, Tex., in January; that shortly after the 18th of January, 1909, he had a business transaction with Grover Till in Erick, Okla., in which he traded to Till a brown horse which he had gotten from Ed Mayes, the defendant; that the horse was brought to Oklahoma by witness and Wallace Fletcher; that witness and Wallace Fletcher got the horse about the 18th of January, 1909, at Ed Wright’s place, in Gray county, Tex.; that Hicks and Wallace Fletcher were there at that time; that they came to Ed Mayes’ place in Beck-ham county, Okla., together; that witness took one -horse and Wallace Fletcher took the other; that they arrived at Ed Mayes’ place about 11 o’clock in the forenoon; that Mayes and his wife were present; that witness and Wallace Fletcher told Mayes that the horses were stolen; that Fletcher told Mayes he wanted to leave the horse he was riding with him; that the horse was a dark brown, weighing about 1,100 pounds, branded with a half circle “J” on the left shoulder; that witness took the horse he was riding back to Texas and told Ed Mayes he was doing this because the horse was a stolen horse; Wallace Fletcher had two horses with him; that he led one and rode one; that they reached Ed Mayes’ place about 11 o’clock and went to the pasture across the creek from where Ed Mayes’ house was; that they went to a “shinnery” patch, and stayed there the rest of the day; did not have anything to eat that day; that they had breakfast and supper at Bob Moler’s house, a brother-in-law of witness ; that they stayed in the chinnery patch until late that day, and then Fletcher and witness went to Bob Moler’s and left the horse Fletcher rode in the “shinnery” patch in Mayes’ corral; that they stayed at Bob Moler’s until about 3 o’clock and started home; they went by another man’s pasture and got a mare out of the stable and took her back; that Ed Mayes told them where that mare was; that the mare belonged to a man by the name of Staggs; that they took the mare to- Ed Wright’s place in Texas; that the other horse they took back and turned loose on the range five or six miles from Pampa, and then went to Ed Wright’s place; that witness rode a horse which he had at the Fletcher boys’ place; that witness then worked for Ed Wright a while, and came back to Oklahoma and went to- Moler’s place; that he saw Ed Mayes and had a conversation with him with reference to the horse; that Mayes told witness that he and others had bought the right to the horse, and, if he could find the horse, he was theirs; that Mayes wanted to trade the horse off; that this was about the 18th or 20th of February; that witness took the horse and traded him to- Grover Till; that he got a bay horse in the trade and took him and turned him over to Ed Mayes, who was in Erick that day; that witness had a conversation with Mayes in town in which he (Mayes) pointed out Mr. Till on the street and showed witness the man and the horse, they were both on the street, and witness went over to Till and made the trade; that Ed Mayes paid witness $5 for making the trade; that the bay horse which witness got'in the trade he rode back to Ed Mayes’; the next day Mayes sent back to Texas, by witness, $25 to the Fletch-ers and $25.to J. E. or Ed Wright; that witness gave Ed Wright a check for $25 drawn upon Thurmond’s bank in Sayre; that the check was signed “C. P. Mayes”; that witness saw Ed Mayes sign the check; that Ed Mayes gave the check to witness to be delivered to Ed Wright; and that he delivered it. Witness was arrested in Texas in connection with the horses and was put in jail at Canadian, Tex.; that he was brought to Oklahoma by the sheriff and had a preliminary hearing; that after the preliminaiy hearing, witness told the officers about these transactions; that witness had never been prosecuted; that on the day before the trial he was in attendance at 9 o’clock in the court; that he had a conversation with Mayes down on the street in which Mayes asked witness to leave and not .appear and appealed to witness’ sympathy; that he told witness they could not prosecute him (witness) because the statute of limitation had run; that Mayes and witness talked about the matter, and witness decided te» leave and did leave; that Bob Moler brought a ticket to witness; that no one was present during this conversation; that witness came back the night before the trial; that Ed Mayes received the horse in Beckham county; that the horse was stolen from- Carl Talley. Wallace Fletcher told Ed Mayes, at the time the horse was left with him, that it was stolen and that it was not Fletcher’s horse.

J. W. Talley, on behalf of the state, testified that he lived at Pampa, Gray county, Tex., and is the father of Carl Talley; that in January, 1909, he was acquainted with two brown horses which Carl Talley owned; the horses were missed; witness looked for them; the last time they had seen them was on Saturday; later he saw one of the horses at Erick, Okla; the other horse was brought home; that the horse found at Erick was a dark brown about 15 hands high, weighed about 1,100 pounds, branded a half circle “J” on the left shoulder; the horses sold at different times for $300; that there was not much difference between the horses; they were very much alike; the horse found at Erick was shipped back to Texas.

Carl Talley, on behalf of the state, testified that he was a son of J. W. Talley; that in January, 1909, he was living at Pampa, Tex., and was the owner of two brown horses branded a half circle “J” on the shoulder; they disappeared’ about the 18th of January; that they had0 been turned out on Saturday night, and Sunday morning they failed to come up; that they did not begin to search for them, until Tuesday; they found one horse the following Saturday; that Hicks Fletcher was taking the horse to witness; the other horse was found at Frick, Okla., in the spring; that he had never given anybody permission to take the horses; that the taking was against his will and his consent; that the horse in question was stolen from him about the 18th of January, 1909.

Grover Till, on behalf of the state, testified that in February, 1909, he was living at Erick; that he saw George Montgomery during that month in a wagonyard at Erick, and traded him a bay horse for a brown, and sold the brown horse to Mr. Martin; that he first saw Montgomery that day coming from where Ed Mayes was standing on the corner by the First National Bank; witness was standing in front of the post office; saw George Montgomery coming about ten feet from Mr. Mayes; Mayes was talking to some one; that Montgomery asked witness if he would trade horses; witness did not know Montgomery at the time and told him he would not trade, but finally he did make a trade.

Guy Ford, for the state, testified that he was in the banking business in Sayre; was cashier of the First National Bank and had been for about seven years; that the bank keeps records showing the dates the checks are paid, the persons drawing the checks, the payee, and the amount; that on March 11, 1909,. a check signed, “C. P. Mayes,” payable to J. E. Wright, for $’¿5, passed through the bank; that C. P. Mayes had an account in the bank; and that C. P. Mayes was the wife of the defendant ; that the bank honored checks of the defendant when signed, “C. P. Mayes.”

J. W. Talley, recalled for the state, testified that he was acquainted with Ed (or J. E.) Wright; that he saw Montgomery working there at Wright’si

On behalf of the defense, Tim Erost testified that he lived in Erick about January IS, 1909, and in February also; that he had seen George Montgomery once or twice; that he remembered about the date when Grover Till traded for a horse from Montgomery; that about that time he saw a man supposed to be Montgomery; that the man sitting there in court looked like the man, but witness could not swear whether he was or not; had a few words with him in which the man tried to trade horses with witness, or witness tried to trade with him; that the man offered to trade a brown horse weighing about 1,000 or 1,100 pounds; on that Ssame day the man tried to trade horses with John Long; that the horse the man was trying to trade was the same horse afterwards traded to Grover Till.

F. O. Funderburk, for the defense, testified that he lived in Erick and had been living there about eleven years; that he was acquainted with defendant and with Grover Till; that he remembers the transacti.on in which Grover Till traded for a horse from Montgomery; that he was in Erick late that evening; that in the forenoon he went over to a place east of Sweetwater to see Mr. Mayes, and saw Mr. Mayes with a bunch of cattle; that this was about 11 or 11:30 o’clock; that he saw Grover Till there that afternoon and heard people guying him about the trade.

W. A. Poindexter, for the defense, testified that he knew George Montgomery when he saw him; that on the day before the trial-he was at home during all the forenoon; that he believes he went to the post office, but was at home all of the time with the exception of the time required to go to the post office; that he saw Ed Mayes at his place; that he saw Montgomery standing out in front; that he did not see Mayes speak to Montgomery at all.

Counsel devote their whole effort in a well-prepared brief to the discussion of the proposition that there is a total lack of evidence corroborating the testimony of George Montgomery. They apparently assume that Montgomery was an accomplice, and. therefore his testimony would require corroboration before a conviction could stand. In this position counsel are wholly wrong. Montgomery was not an accomplice in the sense contemplated by the statute, and, even if he were, he is amply corroborated. The testimony detailing the transaction is clear-cut and convincing and was not weakened by the grilling cross-examination at the hands of counsel for plaintiff in error. The evidence of Montgomery, and especially his evidence brought out on cross-examination by counsel for plaintiff in error, shows that he was present when the horses were stolen, and in fact participated in the larceny in Texas.

The trial court fell into, the error of treating state's witness Montgomery as an accomplice, under rvhat theory we are unable to determine. Counsel in their brief take the position that Montgomery stole the horse in Texas. This being true, then no corroboration is necessary, for it is the law that a thief of goods is not an accomplice of the receiver of the same stolen goods. In Springer v. State, 102 Ga. 447, 30 S. E. 971, the Supreme Court of Georgia says:

“The actual thief, relative to the receiver of stolen goods, is an independent criminal, and, although he may commit the larceny by which he possesses himself of stolen goods, he does not and cannot participate with the receiver of such goods in the special offense committed by the latter in receiving such goods knowing them, to be stolen.”

There are many definitions of an accomplice as that term is used in our statute and in the connection it is here being discussed. AVe are of opinion that:

“The test by which to determine whether one is an accomplice is to ascertain whether he could be indicted for the offense for which accused is being tried.” (12 Cyc. 445, 446.)

If this is a true test, and we think it is, then the rule requiring corroboration as provided by our statute could not be invoked. It is well understood that:

“A thief is not an accomplice of one who receives the goods knowing them to have been stolen, for the larceny and the receiving of the goods are separate and distinct offenses.”

Under the facts disclosed by this record, Montgomery could not have been indicted and convicted for receiving stolen property.

Counsel’s argument, as an abstract proposition, is sound; but it does not apply in the class of cases here discussed. Counsel seek to' have this court declare a rule.that he who steals property shall be considered an accomplice of the person who receives the same property. We are unwilling to assist organized horse thieves in any such manner. The doctrine announced by the Georgia case, supra, appeals to^ us as being in the interest of the law-abiding public. No member of this court desires a rule that will permit an innocent man to- be punished. Neither do we desire to open up the way for the good citizenship of the state to be plundered by thieves.

The only other assignment is based on the introduction of a check which the evidence showed was given by the plaintiff.in error as compensation to one of the thieves who stole the horse in Texas. We think the testimony was properly admitted. The state’s testimony showed who gave it, for what purpose it was given, and that it was received by the thief to whom it was sent, and that a check for a like amount was paid by the bank upon which it was drawn. No one denies any of these propositions. The jury therefore were entitled to consider them in reaching their conclusions.

Finding no prejudicial error in the record, the judgment of the trial court is affirmed.

DOYLE, J., concurs. FURMAN, J., absent and not participating.