text:
    F. T. JOHNSON et al. v. STATE.
    No. A-4063.
    Opinion Filed Sept. 13, 1923.
    (218 Pac. 179.)
    (Syllabus.)
    1. Robbery — Necessity for Felonious Intent to Appropriate Property. To constitute “robbery,” the taking must in all cases be accompanied with a felonious intent, or animus furandi; the intent must be to appropriate the property likewise as in larceny.
    2. Same' — Absence of Intent to Steal — Forcible Taking by Owner. Ifoa party bona fide believing that property in the personal possession of another belongs to him takes that property away from such person with menaces and violence, he commits no robbery, for there is no animus furandi.
    3. Same. The owner of property is not guilty of robbery in taking it from the person of the possessor, even though he obtains it by menaces and violence.
    4. Robbery — Question of Felonious Intent for' Jury. In all cases of this kind, the question whether the taking was with a felonious intent is one of fact for the jury.
    Appeal from District Court, Adair County; E. B. Arnold, Judge.
    F. T. Johnson and others were convicted of robbery, and they appeal.
    Reversed and remanded, with directions to dismiss.

      • T. M. McCombs and Hunt & Bauchamp, for plaintiffs in error.
    George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case in substance charges that the defendants, C. P. Fine, Charity Fine, F. T. Johnson, Frank N. Gipson, Gus M. Gipson and Lee Gipson, did, in Adair county, on or about the 17th day of September, 1920, unlawfully, willfully, conjointly, and feloniously, with force and violence, and by putting in fear one Ethel Gooch, take from her person and presence $1,100 in lawful money,' the personal property of the said Ethel Gooch, and a cashier’s check for $5,000, issued by the Castle State Bank, of Castle, Okla., payable to Henry Gooch, and the personal property of Henry Gooch, with the felonious intent to permanently deprive the owners thereof and to convert the same to their own use. Upon the trial of the case the jury returned their verdict finding the defendants C. P. Fine and Charity Fine not guilty, and finding the defendants F. T. Johnson, Frank N. Gipson, Gus M. Gipson, and Lee Gipson guilty, leaving their punishment to be fixed by the court, and the court by its judgment sentenced each of said defendants to imprisonment in the penitentiary for the term of five years. To reverse the judgment they appeal.

The facts in this case are about as follows:

The defendants C. P. Fine and Charity Fine, his wife, an elderly couple, lived on a farm near Castle, in Okfuskee county, for about 30 years; the prosecuting witness in the case, Henry Gooch, being a brother of Mrs. Fine. Henry Gcte&h’s mother died when he was quite young, and he was raisec&tby Mr. and Mrs. Fine, who also had one child, Edwin Fine, who enlisted in the army in 1918. Mr. Fine had some money on deposit in a Castle bank, and in the early part of 1919 he withdrew the sum of $5,000. Mrs. Fine marked the bills by putting a cross on the 10’s and a Y on the 20’s, and they hid the money about the place. That year Mr. Fine visited his son at an army camp in New Mexico, and later made another trip to Camp Dix, N. Y., to visit his son, and there the son died. On these trips he had a good portion of this money with him. The evidence tends to show that it was the fixed intention of Henry Gooch to take this money. On the 4th day of July, 1920, the money disappeared.- Henry Gooch was seen on the porch of the Fine home that day, and Mr. and Mrs. Fine insisted that Gooch had stolen their money. They went to him and tried to get him to give it back to them, but he denied any knowledge of it. They also caused his arrest on this charge, but the evidence was held insufficient to warrant a conviction. Later on Mr. Fine and his wife met Johnson and the Gipson boys, appellants, in Tulsa, and they sent some of them to see Henry Gooch. They went and brought Gooch down to where the Fines were camped on the Verdigris river. At that time Henry Gooch admitted to Mr. and Mrs. Fine and to these appellants that he had taken their money, and he promised to repay it and gave them a check for a portion of it. Before the check was cashed, payment on the same was stopped.

The evidence further tends to show that Mr. and Mrs. Fine in good faith believing that Gooch and Ethel, his wife, had their money, and, believing that any public effort that might be made to obtain the same would only cause the Gooches to hide it where it could not be found, secured the assistance of these appellants. They all camped about a mile from Gooch’s house, and the next morning they went to Gooch’s residence. Ethel Gooch tells the story of the alleged robbery as follows:

“Mrs. Fine approached the front door, and said, ‘Open the door; I came after our money, and I am going to get it.’ Then she jerked the screen door loose, and entered the house. Some of the others came in. They rushed to Henry, and Mrs. Fine ran to me, and demanded that I give her their money. I told her that we did not have their money, and she said I had it, and she was going to get it; ‘if not we will kill you.’ I had the money in my skirt pocket, and she jerked the pocket off, and took the money off of me. I had well on to $1-100, and a certificate of deposit for $5,000, payable to my husband. The money they took belonged to me; I had it two years. I let her have the money because she threatened to kill me. They also took my husband’s pistol.”

On the part of the defense, Charity Fine testified:

“I demanded my money that Henry Gooch had stolen, and he told Ethel Gooch to give it to me, and she did. It was my money that she gave me; every bill was mine, for I went to the window and found the marks I put on it over a year ago. When I went in the house Henry Gooch had a six-shooter, and I grabbed it, and hit him, and told him to get on back, and he did. I demanded my money, and he told his wife to give it to me. He said, ‘Honey, give Charity her money; they have got me caught.’ The first thing I did I went to the window and looked over it, and I said, ‘This is the money; I want you all to come and see the marks on this money, and see that it is my money, for these are my marks.’ Mrs. Gooch commenced to cry, and said it was money that Charley had paid Henry for haying; and I said, ‘He certainly did not do haying for all of this.’ Papa came in, and I sáid, ‘Good morning, Pa; where have you been?’ He said he had been out to the barn; and I said, ‘Here is my money that Henry stole,’ and he said, ‘I know it.’ ”

It appears that the defendants Johnson, Gus M. Gipson, and Lee Gipson are ex-service men, having served overseas, and the defendant Frank Gipson is a cripple, having but one leg.

The testimony is voluminous, covering several hundred pages, but the foregoing is sufficient to present the questions raised.

The assignments of error relate to rulings of the court in the admission and exclusion of evidence, and the sufficiency of the evidence taken as a whole to sustain the verdict ; also that the court erred in receiving the verdict against appellants, who were accessories, when C. P. Fine and Charity Fine, the principals, were by the verdict of the same jury acquitted. The Attorney General virtually admits that the judgment of conviction cannot be sustained, and he declines to take the contrary position before this court. In our opinion the record bears him out.

, It is laid down in the books on the subject- that it is a universal doctrine that to constitute what the law deems a crime there must concur both an evil act and an evil intent. I Bish. Crim. Law, §§ 22, 229. When the act is proved to have been done by the accused, if it be an act in itself unlawful, the law in the first instance presumes it to have been intended, and the proof of justification or excuse lies on the defendant to overcome this legal and natural presumption. 3 Greenl. Ev. §§ 13, 14, 18.‘ And so the law is that, when evil 'intent is lacking, the act or omission which otherwise would -constitute an offense is robbed of its criminality.

To constitute robbery the taking must in all cases be accompanied with a felonious intent, or animus furandi. If a party bona fide believing that property in the personal possession of another belongs to him take that property away from such person with menaces and violence, this is not robbery; and it is for the jury to say whether or not the accused did act under a bona fide belief. Where a person under a bona fide belief that the property is his own, obtains it by menaces, there is a trespass, but no robbery.

In State v. Hollyway, 41 Iowa, 200, 20 Am. Rep. 586, Miller, C. J., in the opinion says:

“In robbery, as in larceny, it is essential that the taking of the goods be animo furandi. Unless the taking be with a felonious intent it is not robbery. If a man, under a bona fide belief that the property is his own, obtain it by menaces, that is a trespass, but no robbery. * * * Though the defendant take the goods with violence or by putting in fear, yet if he do so under a bona fide claim, it is not robbery for the reason that the felonious intent is wanting.”

See Rex v. Donnelly, 1 Leach, p. 196; 2 Am. Crim. Law, § 1697, and cases cited. And see 1 Russell on Crimes, 872.

In all cases of this kind, the question whether the act is done with a felonious intent is one of fact for the jury. People v. Hall, 6 Parker, Cr. R. (N. Y.) 642.

In 23 R. C. L. p. 1143, the rule is laid down as follows:

“The owner of property is not guilty of robbery in taking it from the person of the possessor, though he may be guilty of another public offense, such as larceny or trespass, etc. But if there be a fair bona fide claim of property or right in the prisoner, the offense amounts to but a trespass.”

The evidence in this case shows that the money so taken was the property of the defendants C. P. Fine and Charity Fine, and their only purpose was to retake that which belonged to them. The only interest appellants had was an interest based upon the rights of C. P. and Charity Fine. On the undisputed facts the intent of C. P. and Charity Fine was the intent of these appellants, and, if the felonious intent was lacking as to C. P. and Charity Fine, then the intent would also be lacking as to these appellants. Not only does the evidence show that C. P. and Charity Fine had no felonious intent, but the jury by their verdict of “Not guilty” so found. The evidence shows that the cashier’s check was taken by mistake, being wrapped up in the roll of bills, and the court properly instructed the jury that, if this cashier’s cheek was taken by mistake, and if in fact there was no felonious intent to take it, then the defendants should be acquitted.

It should be said in passing that, if C. P. Fine and Charity Fine were not guilty of robbery, then appellants could not be, nor could appellants be guilty as accomplices. It is always necessary, in proving a case against a defendant charged as being an accomplice, to show the culpability of the principal. There can be no accomplice, until it has been shown that the principal committed the offense, and that the accomplice previously advised and abetted, or furnished the means by which the crime was committed by the principal.

For the reasons herein expressed, the judgment is reversed, and the cause remanded, with direction to dismiss.

MATSON, P. J., and BESSEY, J., concur.


source: Caselaw Access Project

author: BESSEY, J.

license: Public Domain

text:
    CALVIN WILSON v. STATE.
    No. A-3815.
    Opinion Filed May 5, 1923.
    Rehearing Denied Sept. 15, 1923.
    (217 Pac. 885.)
    (Syllabus.)
    1. Evidence — 'Evidence of Accomplices Sufficiently Corroborated. The testimony of the accomplices is sufficiently corroborated to show that the defendant, if not a participant in, was the instigator of, the crime, and was implicated in its commission.
    2. Riot — Evidence Supporting Conviction. There was no prejudicial error in the reception of testimony, and the evidence as a whole was sufficient to support the verdict.
    3. Appeal and Error — Excerpts from Remarks of Counsel — Insufficient Record. Ordinarily error cannot' be predicated upon mere unexplained excerpts from the remarks of counsel to the ' jury. Enough must appear of record to advise the appellate court of what preceded the alleged objectionable remarks and their meaning to be deduced from the context, and whether or not they were invited or provoked by remarks made by opposing counsel.
    Appeal from District Court, Atoka County; J. H. Line-baugh, Judge.
    Calvin Wilson was convicted of rioting, and he appeals.
    Affirmed.

      J. W. Clark, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

In the information filed November 14, 1919, Calvin Wilson, plaintiff in error, was charged jointly with his son and others with the crime of rioting. At the trial, February 13, 1920, the son was discharged, and the plaintiff in error was found guilty as charged, and his punishment fixed at imprisonment in the penitentiary for a term of three years. To reverse this conviction he appeals.

For convenience in this opinion the plaintiff iu error will be referred to as the defendant. The state introduced evidence tending to show that on or about the 15th day of February, 1919, Calvin Wilson, Arlie Wilson, Melvin Rogers, and Le Roy Dorr committed the crime of rioting, by going in the nighttime and shooting into a house occupied by one J. D. Glover with shotguns and Winchester rifles. The state’s case rested largely upon the testimony of Le Roy Dorr and Melvin Rogers, self-confessed accomplices.

The defendant in his brief contends that the judgment of the trial court should be reversed for three reasons:

First. That there is' no sufficient corroboration of the testimony of the accomplices.

Second. Because of the reception of incompetent and prejudicial testimony.

Third. Misconduct of the county attorney in his argument to the jury.

The testimony of Le Roy Dorr, one of the accomplices, is in part as follows:

“Q. Tell the jury what conversation you had with Calvin Wilson and Arlie Wilson at that time. A. We was — we happened to be up there and struck up with them, and they asked us did we want to make some money easy, and we told them we did, and he said he had a fellow over there he wanted to move; that he had control of the place this fellow was on.
“Q. Who do you mean by he? A. Calvin Wilson. We told him that we would like to make some easy money, and he said he would give $10 if we would help him move them. We told him all right. He said that he had tried every way, and that he thought the only way he could move him was to scare him off the place, and we told him all right, and we talked around there a while, and he said we would go over to his house, and Melvin Rogers and myself could take a gun and go over there and give Glover a talking to, and we told him all right, and we goes over to Calvin’s and gets a Winchester, and Arlie goes with us.
“Q. Who did you get that Winchester from? A. Calvin. And we goes down there pretty near to Mr. Glover, and Arlie stops about 200 yards from the house, and we goes right down to the house and hollers, ‘Hello,’ and Mrs. Glover, she came out — I suppose it was Mrs. Glover; it was a lady — and we asked her where Mr. Glover was at. She said he was down near the end of the field south, making posts. We told her we wanted to see him; so we goes on down there and asked him was that Mr. Glover. He said he' was, and we told him we was strangers in that part of the country and we was friends of Mr. Wilson, and that we come down there to see about getting him to move, and he said something about they had a case in court. We told him we didn’t care nothing about that; he had to be out of there by Monday morning; if he didn’t, we was going to shoot the top of his house off. He said he was not seared of nothing like that; and me and him kind of got into an argument, and his boy stopped the old man.
“Q. Were you armed at that time? A. Yes, sir.
“Q. What did you have? A. I had a Winchester. * * *
“Q. Tell the jury what the frame-up deal was and all about it. A. They said it would be the best — we all decided it would be best to wait until along about 11 o’clock before we started up, and we set around and smoked and talked about it until about 11 o’clock, and got the guns and goes over there.
“Q. Where did you get your gun? A. There at Calvin’s house.
“Q. What kind of gun did you get? A. Single-barreled shotgun.
“Q. Did the other men get guns, too? A. Melvin Rogers, he got a .22 rifle; Calvin, he had a Winchester, a .38 it looked like; Arlie had a single-barrel shotgun, same as I had.
“Q. Do you know whose guns they were? A. I suppose they was Calvin’s; he had them there at the house; he got them for us.
“Q. After you got the guns, what did you do? A. We started across the field and goes over to Glover’s house.
“Q. When you got to Glover’s house, or near there, what did you do then? A. Calvin says: ‘I will go up here, in front of this house, behind a log. You all go around to the north of the house, towards the field.' You all need not be a bit uneasy; if he comes out I will get him.’ So we goes around to the large trees north of the house, and commenced shooting. Arlie and myself.
“Q. Where was Melvin Rogers at that time? A. He was between Arlie and myself and Calvin.
“Q. Say you began shooting? A. Yes, sir.
“Q. What were you shooting at, if anything? A. At the house.
“Q. At whose house? A. Glover’s.
“Q. How many shots did you fire? A. Five shots.
“Q. How many shots did Calvin Wilson fire? A. One.
“Q. How many shots did Melvin fire? A. He didn’t fire any; if he did, I couldn’t hear it.
“Q. How many shots did Arlie Wilson tire, if any? A. Four shots.”

After this, according to Dorr’s testimony, they all returned to the home of the defendant, near there, where they spent the rest of the night. The testimony of Melvin Rogers, also an accomplice, was to the same general effect.

There was some corroboration of these witnesses, con.necting the defendant with the crime. By the testimony of J. D. Glover, occupant of the house where the riot took place, in his account of the visit of Dorr and Rogers the day before the shooting, it appears that the following occurred:

“Q. Go ahead and tell us what Le Roy Dorr said, if anything. A. He said he was a stranger in the country, and was a friend of Calvin Wilson’s, and said he had come down to tell me to leave the place. I says, ‘Young man, what have you got to do with it?’ He says, ‘That is enough.' I said, ‘What.are you down here for, anyhow?’ He says, ‘I am deputized to come down here and tell you to vacate the place.’ I said, ‘Deputized by who?’ He says, ‘That is all right, by who;’ and I said, ‘I have got a case pending in court, and whatever the court says I am willing to abide by it;’ and he says, ‘I will just give you until Monday to leave here;’ and I says ‘Them threats don’t — ’ and he said, ‘By Monday to leave here; if you don’t, I will tear the top off your house.’ I says, ‘Young man, them threats don’t bother me any, and I will be there at the tearing of the roof off the house.’
“Q. Were these men armed at the time? A. One of them had a Winchester. * * *
“Q. After the conversation there, where did they go, in what direction? A. They went off a little bit north of east, into the woods.
“Q. Did anything happen around your plaee that night? A. Yes, sir.”

Then followed an account of the fusillade of shots into the house that night, by persons not recognized by the witness.

It appeared from other evidence that defendant had sued J. D. Glover for possession of this house, and that there was hostile feeling between the two men. That fact, together with the statement of Dorr that he was a friend of the defendant, and the fact that he threatened violence to the home of this witness if he failed to vacate, are circumstances strongly corroborating the testimony of the accomplices, showing motive, and indicating that the defendant was implicated in the riot. There was also evidence given by Mary Glover, the daughter of J. D. Glover, to the effect that defendant shortly before this occurrence came to their home armed and ordered them to stop cutting timber, and told this witness that, “if -papa wanted to leave with his family, he had better be leaving.” In addition to this, there was some evidence concerning footprints leading from the scene of the riot to near the home of the defendant.

Altogether, we think the testimony of the accomplices was sufficiently corroborated to show that the defendant, if not a participant in, was the instigator of, the erime, and was implicated in its commission.

In Moody v. State, 13 Okla. Cr. 327, 164 Pac. 676, the court said, in the syllabus:

“Evidence corroborating an accomplice and tending to connect the defendant with the commission of the erime need not be direct, but may be circumstantial only.”
“It is not essential that the corroborating evidence shall cover every material point testified to by the accomplice, or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to some material fact or facts by independant evidence tending to connect the defendant with the commission of the erime, the jury may from that infer that he speaks the truth as to all. Such corroborating evidence, however, must show more than the mere commission of the offense or the circumstances thereof.”

For a fuller discussion of the sufficiency of corroborating evidence see the body of the opinion in the Moody Case.

The objection as to the alleged incompetence of certain testimony is not well taken. The objections made relate mostly to the order in which the testimony was offered showing a common design of and concert of action between the persons who did the shooting. Such common design may be shown by different circumstances, and the order and manner of the showing is governed by the exercise of a wise discretion on the part of the trial judge. It is also contended that the evidence concerning the tracks was too indefinite and remote and should have been excluded. If the evidence of tracks in any degree tended to show who the perpetrators of the crime might be, the evidence was admissible. The force and weight of such testimony was for the jury.

Ordinarily error cannot be predicated upon mere unexplained excerpts from the remarks of counsel to the jury. Enough must appear of record to advise the appellate court of what preceded the alleged objectionable remarks and their meaning to be deduced from the context, and whether or not they were invited or provoked by remarks made by opposing counsel. The record here shows that some of the objections to remarks of counsel were sustained, and the jury admonished not to consider them. Without going into a tedious recital of details, a careful examination of this feature of the case indicates that the things complained of were not prejudicial.

The judgment of the trial court is therefore affirmed.

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


text:
    JIM DOWNEY v. STATE.
    No. A-3854.
    Opinion Filed May 5, 1923.
    Rehearing Denied Sept. 15, 1923.
    (217 Pac. 887.)
    (Syllabus.)
    1. Intoxicating Liquors — Evidence Sustaining Conviction of Unlawful Manufacture. Proof of the finding of an illicit still in operation near the residence of the accused, together with all the other circumstances shown, held sufficient to sustain a verdict finding the accused guilty of the illegal manufacturing of whisky.
    2. Trial — Refusal of Instruction on Law of Alibi Where Covered in Charge. Where an instruction defining the law on an alibi was given, there was no error in refusing t'o give an argumentative instruction on that subject and others, which might be misconstrued by the jury as a declaration of the weight of certain portions of the evidence.
    Appeal from County Court, Jefferson County; E. L. Dillard, Judge.
    Jim Downey was convicted of manufacturing whisky, and he appeals.
    Affirmed.
    Bridges & Yertrees and" J. H. Harper, for plaintiff in error.
    The Attorney General and E. L. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

Jim Downey, plaintiff in error, herein called the defendant, was by information filed in the county court of Jefferson county on July 3, 1920, charged with the unlawful manufacture ,of whisky. At the trial, on August 13, 1920, he was found guilty as charged; the jury assessing the maximum punishment, a fine of $500 and six months’ imprisonment.

The evidence showed that the accused had recently moved on premises belonging to another, that his tenancy. was temporary and indefinite, and that the house and premises adjacent had been “loaned” to him by the owner. The evidence on the part of the state was that a still or device consisting of a metal coal oil barrel or drum was found on these premises on the creek bank in the timber, about 300 yards from the house; that there was a fire burning under -this barrel, which contained fermented meal; that • attached to an opening in the head of the barrel was a leaden pipe extending into the water, this pipe being connected with some iron gas pipe leading to a container across the creek; there were some buckets, a wrench, and some fresh drinking water there, which, in connection with the condition of the fire and the drippings from the pipe into the container, indicated that some person had recently been there operating this still. There was a well-used path leading from the barn to where the still was found; a large number of empty fruit jars, which gave off an. odor of whisky, were found in the barn.

The defendant claimed that the still found was a migratory or traveling still, placed there without his knowledge or consent; that he was in no way connected with or implicated in its construction or operation; that he left home after dinner and was not in the vicinity of the premises at 2 o’clock when the still was discovered in operation.

The defendant in his brief urges four assignments of error:

First. Refusal of the court to give a certain requested instruction.

Second. The reception of incompetent testimony.

Third. The refusal of the court to ■ direct the jury to return a verdict of not guilty on account of the insufficiency of the evidence.

Fourth. Misconduct of the county attorney in his argument to the jury.

The court gave a fair instruction on the issue of an alibi and refused to give the following instruction requested by the defendant:

“In this case, gentlemen, the defendant has offered evidence tending to show that at the time the still was in operation he was not at his place or the place where the still was being operated, but was some miles distant therefrom, and that he had nothing to do with the still or the operation thereof, or any interest therein, and that it was operated without his knowledge or consent.
“You are instructed that before you would be warranted in returning a verdict against the defendant, you must find from the evidence introduced beyond a reasonable doubt that the defendant either set up and was operating the still in question or that the same was being done at the instance and request of the defendant or without his knowledge or consent, or that the defendant was interested in said still, and unless you so find beyond a reasonable doubt, from the evidence, then your verdict must be for the defendant.
“And in this connection you are further instructed that the mere fact that the still was found on a creek composing a part of the farm of the defendant would not of itself justify a conviction.”

Considered in connection with the instructions given, there was no error in refusing to give this instruction. Portions of it are argumentative and might be misconstrued by the jury as a comment on the weight of the evidence.

We have read the entire record, and find that the claim that incompetent evidence was admitted is not well grounded and that the evidence referred to in defendant’s argument was for the most part competent and none of it prejudicial to the rights of the defendant.

There was ample evidence to support the verdict. True there was evidence tending to support the theory of the accused; but the weight of the evidence and the credibility of the witnesses was for the jury. We think the jury very properly concluded that one who makes illicit whisky by means of a still made out of an iron coal oil drum with leaden and iron pipe attachments deserved the' extreme penalty prescribed by our .statutes.

It is claimed that there was no definite proof that the liquid produced was whisky; there was proof that it was distilled from fermented meal and had the appearance of corn whisky; it would have been asking too0much to require the •sheriff or county attorney to demonstrate in open court by tasting the sample in evidence that this liquor was indeed whisky. The persons making the test might have been stricken with palsy and became incapacitated from further participation in the trial.

It is claimed by the defendant that some of the remarks made by the county attorney in his argument to the jury were improper and prejudicial. We have carefully examined the record upon this point. Without analyzing the record so far as it relates to this contention we hold that the remarks of counsel for the most part were justifiable deductions drawn from the evidence. The court sustained some of the objections and admonished the jury not to consider the remarks objected to. Upon careful consideration of this part of the record we conclude that this assignment of error is without merit.

The judgment of the trial court is affirmed.

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


text:
    O. E. CRAIN v. STATE.
    No. A-3833.
    Opinion Filed June 4, 1923.
    Rehearing Denied Sept. 15, 1923.
    (217 Pac. 888.)
    (Syllabus.)
    1. Indictment and Information — Instruction as to Lower Grades of Assault According to Evidence. Where the accused is charged with an assault with intent to kill, and where the evidence indicated that some lesser degree of assault may have been committed, instructions as to other grades of assault as given were not erroneous.
    2. Trial — Witnesses—Impeachment—Foundation for Evidence of Conflicting Statement — Waiver of Error — Harmless Error. Where an attempt is made to impeach a witness (in this case the defendant) by showing that at another time he made a different or conflicting statement as to the circumstances of an affray, some foundation should be laid for the introduction of such impeaching testimony, specifically calling his attention to such discrepancies in order to aiford the witness an opportunity to explain or deny the impeaching testimony.
    (a) A violation of this rule is error, but the error may be waived, and under some circumstances may be considered harmless.
    Appeal from District Court, Greer County; T. P. Clay, Judge.
    0. E. Crain was convicted of assault with a dangerous weapon, and he appeals.
    Affirmed.
    Stewart & Edwards, for plaintiff in error.
    Geo. P. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

0. E. Crain, plaintiff in error, here referred to as the defendant, was on February 25, 1920, by a verdict of a jury found guilty of an assault with a dangerous weapon, without excusable or justifiable cause, and his punishment assessed at one year in the penitentiary. From the judgment on this verdict he appeals.

Steve Jordan, a negro 51 years old, in company with his stepson, was riding in a buggy in the highway, about 450 feet from the residence of the defendant. The defendant, for some unexplained reason, took with him his Winchester rifle and stood beside the road where these negroes were about to pass. Both negroes say that as they approached the spot where the defendant was, and when they were about 40 or 50 yards distant, the defendant picked up his gun and began to shoot at them, firing seven or eight shots, four of which seriously injured Jordan; one shot passing entirely ■through his body. The stepson leaped from the buggy and ran away. Jordan drove on to a neighbor’s, where he was given medical attention. Both Jordan and his stepson say they were unarmed, and this is corroborated by this neighbor and by the fact that no gun or cartridges were ever found on their persons, in the buggy, or along the highway or elsewhere. There was some evidence that defendant tried to induce two neighbors to testify in defendant’s behalf to the effect that they, at a distance, saw smoke coming from the buggy while the shooting was in progress. A witness friendly to the defendant, who saw at least a portion of the affray, was not present at the trial, although he had been subpoenaed to be present.

The defendant’s story of the shooting was, in part, as follows:

“Q. Now then, what happened? A. Steve made for his gun and commenced shooting, and mine happened to be sitting right there by the post, and we both went to shooting.
“Q. Did you see that gun? A. Yes, sir.
“Q. Where was it when you first saw it? A. It was in his hand. He had it in his bosom.
“Q. He got the gun from his bosom? A. Yes, sir.
“Q. And in what hand did he hold it? A. In his right hand.
“Q. In his right hand? A. Yes, sir.
“Q. When did you get your gun? A. Well, when he started after his, I started for mine.
“Q. Did you see that gun before you fired? A. Yes, sir.
“Q. You did fire? A. Yes, sir.
“Q. Do you know how many times? A. Well, it was either five or six times.
“Q. Several times? A. Yes, sir.
“Q. What sort of gun was it, pump or automatic? A. Thirty-two, twenty Winchester.
“Q. How did it discharge the shells? A. All you had to do was work it.
“Q. Work the trigger? A. No, pull the lever.
“Q. It was a pump gun? A. I reckon you would call it a pump gun.
“Q. When did you cease firing? A. Well, after I shot four or five 'times. I couldn’t say just exactly.
“Q. Were those shots fired rapidly? A. Pretty rapidly, yes.
“Q. What did he do? A. He .shot three or four times.
“Q. Did you cease firing before or after he did? A. I believe I ceased firing first.”

Defendant’s wife testified:

“Q. Just tell what you saw. Tell the jury what you saw. A. Well, I couldn’t hear the shots fired. I could not see any gun at the buggy. In fact, I could not see any one at the buggy, but I could see some smoke coming from the buggy, and I could see Mr. Crain shooting.
“Q. Now, could you distinguish any difference in the reports, or was there any difference in the reports that you heard? A. Yes, I could tell that there were two guns shooting. I could see smoke for one reason, from the buggy. I knew that shooting was going on on both sides, but still I didn’t see any gun.”

This affray was the culmination of an attempt by defendant to impound or hold a team of horses belonging to a relative of the prosecuting witness who the defendant claims shot a mule belonging to defendant. These horses were being held by defendant to indemnify- him for the damage done to the mule. The prosecuting witness, at the request of the owner of the horses, two days prior to the shooting demanded possession of these horses and was abusively ordered off the premises of the defendant.

A part of the information in this case is as follows:

“O. B. Crain did then and there unlawfully, feloniously and of his malice aforethought and without authority of law, and without justifiable or excusable cause therefor, intentionally and wrongfully, make and commit an assault upon and shoot at one Steve Jordan, Sr., with a certain loaded rifle, with the unlawful and felonious intent to kill him, the said Steve Jordan, Sr., with said loaded rifle aforesaid, which loaded rifle the said 0. B. Crain then and there had and held in his hands, said loaded rifle being then and there a deadly weapon.”

The information indicates that this prosecution was predicated upon section 1756, Comp. Stat. 1921, which is as follows:

“Any person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of firearm, airgun or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death or in resisting the execution of any legal process, is punishable by imprisonment in the penitentiary not exceeding ten years.”

There is another section defining an assault with a deadly weapon, section 1764, Comp. Stat. 1921, which is as follows :

“Any person who, with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon,. or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or airgun, or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in the county jail not exceeding one year.”

The court instructed the jury defining the offense charged, as follows:

“You are instructed that the information in this case includes the offense of intentionally and wrongfully shooting at another with a firearm with intent to kill, and also an assault and battery upon another by means of a deadly weapon, and also the offense of shooting at, or attempting to shoot at, another with a firearm with intent to injure such person and without justifiable or excusable cause, although without intent to kill such person.
“If under the evidence and these instructions, you believe and find beyond a reasonable doubt that the defendant is guilty of unlawfully, feloniously, and with malice aforethought, shooting at or shooting the said Steve Jordan, with unlawful and felonious intent then and there to kill him, the said Steve Jordan, Sr., or of the offense of unlawfully, willfully, and intentionally and feloniously making an assault in and upon the said Steve Jordan, Sr., with a certain loaded rifle, the same being a deadly weapon, but you have a reasonable doubt as to which of said offenses he is guilty of, you must give him the benefit of such doubt and find him guilty of the last mentioned offense. If you find and believe from the evidence beyond a reasonable doubt that the defendant is guilty of the offense of unlawfully, willfully, and feloniously' making an assault upon and in the said Steve Jordan, Sr., with a certain loaded rifle with intent to kill and murder him, or of an assault committed with a dangerous weapon with the intent to do bodily harm, without justifiable or excusable cause, but you have a reasonable doubt as to which of said offenses he is guilty of, you must give him the benefit of such doubt and find him guilty of the offense last mentioned. If you do not find him guilty of either of said offenses, you will acquit him and return a verdict of not guilty.”

These instructions, considered together, fairly state the law applicable to the facts shown. The punishment inflicted was the minimum that could have been assessed under any reasonable deductions based on the evidence and supporting the information under which the accused was tried.

The instruction given as to the law of self-defense, although not so clear as it might have been made, was not misleading.

At the close of all the testimony the county attorney took the witness stand and testified in rebuttal as follows:

“My name is M. H. Mills. I am county attorney of this county and was such county attorney about the time this trouble occurred and after it occurred. The day the trouble occurred, or the next day, Mr. Crain, the defendant, came to Mangum and talked to me and detailed to me what he claimed were the facts concerning this trouble. He stated in that conversation that the negro was shooting at him.
“Mr. Edwards:'Just a moment, if the court please. We object to this manner of testifying for the reason that it is not proper impeaching testimony, no proper foundation having been laid for the introduction of this testimony. No question asked the witness.
“The Court: Overruled.
“Mr. Stewart: Exception.
(Continuing) “Mr. Crain detailed to me what he claimed were the facts concerning the trouble. He stated to me that the negro was shooting at him, and that at the time or about the time the negro commenced to shoot at him he reached for his Winchester and returned the fire and shot the negro several times. Mr. Crain stated in that conversation that he did the shooting with a rifle of some hind, Winchester or Field, and stated that he was standing near these barrels, and that his gun was sitting by the barrels when the negroes drove up, and that he reached down when he saw the negro was going to shoot. He reached down and got the gun and returned the fire. Mr. Crain told me in that conversation that day that he and Bishop Goosby and old Steve were the only ones present except his wife, who he said saw the trouble. He stated that as far as he knew there were no other parties knew anything about the actual shooting. On the next day, or I could be wrong, it might have been the second day or might have been the third day afterwards, Mr. Crain came again to my office or to the county attorney’s office and talked to me about this trouble. He stated in that conversation practically what he had told me before on the previous day and stated that Mr. W. E. Kelly was also present and saw all the shooting; that Mr. Kelly was behind the barn. I think he said he came to borrow something or return something that he had borrowed, I am not sure which, and that he was there horseback and that he saw it all. And that is all.”
Cross-examination: “Q. How many conversations did you have with Mr. Crain? A. Mr. Stewart, Mr. Crain has visited me at my office 15 or 20 times since this suit was filed.
“Q. Kelly has visited you, hasn’t he? A. He came shortly after Mr. Crain came the second time about which he has testified, and I wouldn’t say that he hasn’t been there again. Perhaps he has, Lige, but I’m not sure about that.
“Q. That is all.”

An examination of the testimony given by the defendant discloses that this was in no sense rebuttal of any specific facts stated by the accused. It was an attempt to impeach the defendant on the ground of having made contrary or conflicting statements, at variance with the story he related in his testimony in chief. No sufficient foundation was laid for the introduction of this impeaching testimony. This was error, but since no exceptions were saved to the latter part of the county attorney’s narrative statement, the error may be considered as waived. Although the reception of this testimony was improper, or at least irregular, the defendant made no denial of the truth of the statements of the county attorney and no showing that he was surprised or unable to controvert the statements made. The purpose of first laying a foundation for impeachment, under circumstances like these, is to give the witness notice of the alleged discrepancies in his statements in order that he may refresh his memory and, if possible, make explanations or offer other proof. The defendant here intimated no such desire,, and we hold that this error under all the circumstances was harmless.

The evidence all indicated that there was no element of self-defense, excepting only the testimony of the defendant and his wife, whose statements were of a self-serving character and contrary to the physical facts proved. The other testimony is convincing that Steve Jordan had no gun and made no hostile demonstration whatever. Under all the evidence the defendant may consider himself fortunate that he was not convicted of an assault with intent to kill, coupled with a much more severe penalty.

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


author: •BESSEY, J.

text:
    R. L. STEPHENS v. STATE.
    No. A-3867.
    Opininon Filed July 11, 1923.
    Rehearing Denied Sept. 15, 1923.
    (217 Pac. 1063.)
    (Syllabus.)
    1. Witnesses1 — Defendant Claiming Privilege as to Collateral Matters. Ordinarily, a defendant testifying in his own behalf, who, on cross-examination, claims his constitutional privilege of refusing to testify to facts that might incriminate him in some other offense, must do so at the peril of prejudicing his own case before the jury in the case then on trial.
    2. Same — Cross-Examination of Accused on Conjectural Matters Improper. Such cross-examination may be objectionable where the assumed facts incorporated in the questions are merely conjectural, and incapable of proof, when asked for the sole purpose of prejudicing the accused before the jury.
    3. Larceny — Specific Proof of Incorporation of Company Owner not Essential. Where the information states that the subject of the larceny was the property of the “Gypsy Oil Company, a corporation,” specific proof that it was duly incorporated is not essential where there is inferential evidence indicating that the company was in fact a corporation.
    Appeal from District Court, Tulsa County; Bedmond S. Cole, Judge.
    E. L. Stephens was convicted of the larceny of an automobile, and he appeals.
    Affirmed.
    Woodson E. Norvell and Alpha L. Burns, for plaintiff in error.
    Geo. P. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   •BESSEY, J.

E. L. Stephens, plaintiff in error, herein designated the defendant, was convicted in the district court of Tulsa county, at the March, 1920, term of said court, of the larceny of an automobile, and on April 19, 1920, was sentenced to serve a term of five years in the state penitentiary. From the judgment of thd trial court he appeals to this court.

The evidence in this case is to the effect that on the 11th day of October, 1919, the Gypsy Oil Company had a new Ford roadster stolen from in front of a paint shop in the city of Tulsa. This roadster was afterwards recovered from the possession of Will Carden and Elton Meadows in Dallas, Tex., in the latter part of November, 1919. Certain changes had been made in the car between the time of. its taking and the time of its recovery, among which changes were the replacement of a large steering wheel for a small one, a change in the engine number, some new braces put on, a mirror placed on the windshield, and different tires on the rear wheels. Carden and Meadows were arrested for the theft of the car from the Gypsy Oil Company, and brought back to Tulsa. There, in the presence of the officers, they stated that they came into possession of the car by purchase from a man by the name of J ohnson at Beggs, Okla.; that Johnson was an oil field worker. Later they made a different statement, implicating the defendant, and this later statement was the one sworn to by them as witnesses. At the trial they each testified that they came into possession of the car by stealing it from the garage of the defendant Stephens on the Sunday morning preceding Hallowe’en, 1919. This would make the day October 26, 1919. After they stole the car from Stephens they kept it in Tulsa for five or six days before they left with it, during which time they had it in two different public garages, the American Garage and the Hobart Garage. They both stated that the large steering wheel was on the car when they stole it, and also the same tires as when the car was recovered. Each of these witnesses denied that they stole the car from in front of the paint shop on the 11th of October, or had anything to do with the stealing of the car from the Gypsy Oil Company.

On the 11th day of October, 1919, Carden was working for Stephens, who was living on a 15-acre tract of land about 3miles east of Tulsa, on the Federal road, engaged in the raising of chickens and hogs and in truck farming. Carden did the milking for him, and helped run the place. The 11th of October was on Saturday, and on this date Carden claimed that Stephens went to town and came back with the Ford roadster which he and Meadows stole from Stephens, and which proved to be the property of the Gypsy Oil Company. Carden claims that Stephens returned home with this car some time between 3:30 and 5 o’clock that afternoon. Carden’s is the only direct testimony connecting the defendant with the possession of the car, except that Meadows also testified that the car was taken from Stephens’ garage, and that Stephens shot at them as they were leaving his place with the car that morning. This Stephens denies, and also denies that he had anything to do with the original taking of the car.

E. M. Morton, a witness for the state, testified that he had lived in Tulsa about three years; knew the defendant, and also Carden and Meadows; that he lived on the corner of Admiral and Lewis streets, and that Stephens came out there on a Sunday morning late in October and asked him if he had seen the two boys that morning; that witness said he had not, and that Stephens then said, "I have lost my car; the boys have got it. ” The witness then said, ‘ ‘ How do you know ¶” to which Stephens replied, "Well, I took a shot at one of them.” This conversation was not denied by defendant when he was a witness.

Mrs. Iva Meadows, mother of Elton'Meadows, testified: That she saw Stephens at her house in the city of Tulsa on the 26th of October, 1919, about 9 or 9:30 in the morning — Sunday morning. That defendant told her .that her son, Elton, and the Carden boy had driven his ear off that morning about daylight. That she asked Stephens if he was sure that it was Elton, and Stephens said he was sure. Stephens said he shot at the Carden boy three times; that they had stolen the car. Mrs. Meadows then asked him if the Carden boy did not live with him, and Stephens said he did, but that they were “at outs” at that time, and that the Carden boy was mad at him. That later she talked with Stephens several times over the telephone. That he called her up to know if Elton had come home, or if she had heard of the boys and that she told Stephens that she was sure that they would bring the car back, and that he said that he did not think they would, because the Carden boy was mad at him. That the witness told defendant that she was greatly worried about it, and the defendant assured her at that time that she had nothing to worry about — that he was not going to report it. This conversation was not denied by the defendant when on the witness stand.

J. T. Meadows, the father of Elton Meadows, also testified about a telephone conversation with the defendant. In this conversation witness said that Stephens wanted to know if he knew anything about the boys or the car,, and if they had brought the car back yet. Witness told him ■ that he had not seen the car nor the boys, and asked Stephens if he had reported the theft to the police. Stephens said he had not, and witness told him that he had better go ahead and report it, and defendant said he was thinking about doing it the next day. This conversation was not denied by Stephens when a witness. Neither was the theft of the car from Stephens reported to the police.

The witness D. A. Plank testified that he lived in Tulsa, and was engaged in business in a filling station of the Lindner Oil Company at Admiral and Lewis streets; that he knew Carden and Stephens and Meadows; that he was working at such filling station on Saturday, the 11th of October, 1919, and also on Saturday, the 25th day of October, 1919; that he saw Stephens nearly every day during that month, but did not remember the exact dates; that he sold gasoline to both Stephens and Carden every few days; that they would often be together; that he saw Stephens driving a Ford roadster that looked like it was nearly brand new in the latter part of October, 1919. In addition, this witness testified as follows:

“Q. Was he driving such a looking ear at the time that Will Carden was with him? A. Yes, sir; I don’t know just how—
“Q. And you ha,d seen him driving before that — for several weeks before that you had seen Mm driving a Ford roadster that didn’t look quite so new? A. Well, now, I couldn’t say so positive about that. His car wasi a nice-looking ca/r; I don’t know whether you would call it an old-looking car or not.
“Q. Have you ever seen him driving a ear that showed it had been out in the dust and mud? A. Yes, sir.
“Q. Ford? A. Yes, sir.
“Q. Did the ear that he was driving when Will Carden was with him there in the latter part of October look like it had been in the mud? A. Well, I didn’t notice; don’t remember about that.
“Q. Well, did it impress you as a muddy car? A. No; I wouldn’t call it so.
“Q. Looked like a new ear to you, did it? A. Yes, sir; a nice-looking car.
“Q. Have you any records by which you could fix that date? A. No, sir; I couldn’t.
“Q. Do you sell him for cash? A. Sometimes I do, and sometimes he will tell me to charge it, and I will just put the ticket in the cash drawer there, and hold it for him, and then when he pays I just—
“Q. You sell him gasoline frequently, do you? A. Yes, sir.
“Q. Used to, did you? A. Yes, sir; I do yet.
“Q. Do you know anything about when-a car was stolen from the Gypsy Oil Company — this car in question? A. No; I don’t know as I — I don’t know.
‘ ‘ Q. Did you ever have a conversation with Stephens with reference to having a car taken from him? A. Yes, sir.
“Q. When was that? A. Well, I don’t remember the date; it has not been' so long ago.
“Q. Latter part of October, was it? A. Something like that.
“Q. Do you remember when it was with reference to that time that you had seen Will Carden and him come up there, and you would sell them gasoline? A. Well, it was along just about that time; yes, sir.
“Q. Next day, or such a matter? A. Possibly so; it was just about that time, anyway.
“Q. Well, was that before or after he had told you about this car being stolen that you had seen him and Will come up there and get gasoline together? A. Oh, that was a day or two before; possibly *a day or possibly two days.
“Q. Before he told you? A. Before he told he had lost the car.
“Q. The getting of gasoline was a day or two before he told you about losing the car? A. Yes, sir.
“Q. Now, what did he say about losing that car? A. Well, I don’t know that I can say just — I think the first thing he asked me about it was he asked me if I had seen Eney; we call him that—
“Q. Who did he mean by Eney? A. That is the boy right there.
“Q. Will? A. Yes.
“Q. All right. A. And I told him I hadn’t, and he was looking for him, and told me something about missing his ear.
“Q. What did he say about missing his ear? A. Well, he said his car was stolen.
“Q. Did he say why he was looking for Eney? A. Well, he left the impression that he thought Eney had got it.
“Q. What did he say about any shooting? A. Well, he didn’t say anything; he didn’t say anything about any shooting at that time.
“Q. Did he at some other time? A. I don’t think I heard him say anything; he didn’t say anything about any shooting at that time.
“Q. Did he at some other time? A. I don’t think I heard him say anything about shooting, himself, but Carden was telling me later about some shooting.
“.Mr. Sykes: I object to that as incompetent, irrelevant and immaterial.
“Mr. Hunt: We confess it.
“The Court: Sustained.
“Mr. Hunt: I confess all that about what Will Carden said. I don’t want it in if you don’t.
“Q. And Stephens had already told you that Eney had taken his ear? A. Well, he left the impression that he thought Eney had got it.
“Q. But how did you happen to be talking to Eney about this car? A. Well, he just came in the office and sat down, and I wasn’t busy.
“Mr. Sykes: Object.
“The Court: Sustained.
“Mr. Hunt: How much do you want to object to?
“Mr. Sykes: I object to all the conversation, not made in the presence of the defendant.
“Q. When did you see Stephens again? A. Well, I don’t know; two or three days after that.
“Q. Did you talk to Stephens when you saw him next? A. I don’t know whether there was anything said about the car at that time.
“Q. Did you tell him you had seen Eney? A. No; I don’t believe I did.”
Cross-Examination:
“Q. Now, the time that you saw this car that looked like a brand new ear that Eney and Stephens were with, was that the afternoon of the day before the next day Stephens told you that his car had been stolen? A. Yes; it was that evening or the day before; possibly the evening before.
“Q. Ahd this looked like a brand new car, didn’t it? A. Yes; it looked like a brand new car.
“Q. And the next day he came up there and told you that these boys had stolen his ear? A. It was either the morning after that, or possibly it was two days before that we filled that car; it was a day or two — something like that.
“Q. It was. on Sunday morning, wasn’t it? A. It was on Sunday morning.
“Q. That he came up there and told you they had stolen his car? A. It was Sunday morning that he came up there and told me they had stolen his car.”

Another circumstance against the defendant was that the number of the stolen car had been changed to the identical number of a Ford roadster that Stephens had bought from the same Ford agency in the month of May, 1919. Another circumstance was that this roadster that Stephens had bought in May, 1919, had been considerably altered in appearance, Stephens having had a touring car body put on it. This was done a short time alter the Gypsy Company roadster was stolen. Also, Stephens had this car at a public garage for repairs at the time the Carden and Meadows boys claim they stole the Gypsy roadster from Stephens’ private garage. The tires from the Gypsy car must have been placed on the' Stephens ear prior to October 25, 1919, the date Stephens took his car to the garage for repairs. Stephens attempted to explain the presence of these tires on! his car by stating that he had given $32 in money to Carden on the 20th day of October, 1919, to purchase two tires for the rear wheels of his car, and that the tires were put on the car by Carden. The only corroboration of this is by Stephens’ sister-in-law, who claimed to .have been at Stephens’ house, at the time Stephens gave Carden the money.

Stephens was not arrested and charged with this offense until some time after Carden and Meadows had been returned from Texas, and apparently not until they had made their second statement, which implicated Stephens in the original taking of this car.

. The strongest circumstances in Stephens’ favor is that he drove down to the courthouse at the time of the preliminary hearing of Carden and Meadows in his own Ford car, with the stolen tires from the Gypsy Oil ear on the rear wheels. While it can be truthfully said that such conduct was not indicative of guilt, yet, on the other hand, it should be remembered that automobile tires of a certain make and size have no distinctive markings of identification other than the serial numbers.impressed on such tires, and that such numbers cannot be distinguished except upon close examination. Another circumstance that might be said to indicate innocence is the fact that Stephens never notified the police authorities of the loss of any car by him; but this circumstance may also be urged as indicating guilt, because if Carden is telling the truth Stephens had previously stolen this car from the Gypsy Oil Company, and it would have been suicidal on his part andl a virtual admission of possession of the car for Stephens to have reported the subsequent larceny of the car from his possession. So that, while ordinarily the failure to promptly report the theft of the ear would indicate that no car had been feloniously taken from the person failing to so report it, on the other hand, under the circumstances as detailed by Carden, the failure to report would not indicate any such facts, but might be used to indicate a consciousness of guilt on the part of Stephens of the original taking of the car) on October 11, 1919. This view is strengthened by the testimony of Mr. and Mrs. Meadows to the effect, first, by Meadows, that he urged Stephens to report the theft of the ear to the officers, and then, by Mrs. Meadows, that Stephens told her she need not worry; that he was not going to report it. Stephens’ failure to deny either of these conversations strengthens the view that the failure to report the theft of the car to the officers was because of his guilt of the original taking thereof. In other words, Stephens seems to have preferred to rely upon his ability to quietly regain possession of this car from Carden and Meadows, by whom he must have known it'was taken from him, if the uncontradicted testimony of the witnesses Mr. and Mrs. Meadows, E. M. Morton, and W. H. Plank is to be believed.

The record discloses some irregularities occurring in the course of the cross-examination of the defendant by the county attorney. Under the peculiar circumstances, as shown, portions of this cross-examination were objectionable. Ordinarily a defendant testifying in his own behalf, who claims his constitutional privilege of refusing to testify to facts that might incriminate him in some other offense, must do so at the peril of prejudicing his own case before the jury in the case then on trial. The facts sought to be elicited by this cross-examination, tending to show that the defendant had previously been implicated in other offenses, if true, could have been established by record or other independent evidence; but the state made no effort to make such proof. These cross-interrogatories were probably intended to force the defendant to claim his constitutional privilege, and so prejudice the defendant’s cause in the eyes of the jury, and the manner of so doing under the circumstances here was of doubtful propriety. But, since the record as a whole points to the guilt of the defendant, and since he received the minimum penalty prescribed by law, these irregularities are not, of such a grave nature as to warrant a reversal of the judgment of conviction.

The information alleges that the stolen automobile was the property of the Gypsy Oil Company, a corporation. In cases of larceny the ownership of the property must be alleged and proved. The earlier decisions are to the effect that such ownership must be proved as alleged, and that, if the state incorporates an unnecessary allegation as to ownership in the indictment or information, it is necessary to prove such allegation where it has reference to the ownership of the property stolen. The weight of modem authority appears to be that such strict proof is not absolutely essential. There seems to have been no controversy in this case on the question of whether the Gypsy Oil Company was or was not a corporation. All the witnesses testified that the car stolen was the property of the Gypsy Oil Company, and in designating the owner of the stolen property all the witnesses, without exception, name it the Gypsy Oil Company, a name ordinarily applied to corporations, and, in the absence of evidence to the contrary, it would be so understood. The witnesses also testified as to the various departments of the company and to their duties respecting the company and its departments; so that, while there is no direct evidence nor reputation evidence to the effect that the Gypsy Oil Company is a corporation, the name applied, to wit, Gypsy Oil Company, indicates that it is a corporation, and the testimony of the witnesses concerning their duties in respect to such company and its various departments, as employes, indicates a corporate organization, sufficient to support the verdict and judgment. 7 R. C. L. 37, 38, notes and annotations; 18 Ann. Cas. 1121; Ann Cas. 1912A, 969.

The judgment of the trial court is affirmed.

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


text:
    LESTER BRANNON v. STATE.
    No. A-4090.
    Opinion Filed July 28, 1923.
    Rehearing Denied Sept. 15, 1923.
    (217 Pac. 1060.)
    (Syllabus.)
    Homicide — Instructions on Law of Self-Defense Approved. The instructions of the court relating to homicide, self-defense, and collateral issues examined, and held sufficient.
    Appeal from District Court, Roger Mills County; T. P. Clay, Judge.
    Lester Brannon was convicted of manslaughter in the second degree, and he appeals.
    Affirmed.
    H. L. Adkins and Sylvester Grim, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

The information in this case, filed August 25, 1920, charged the plaintiff in error, Lester Brannon, in this opinion referred to as the defendant, with the murder of Claude Wilson, committed on the 12th day of June, 1920. At the trial, March 12, 1921, defendant was found guilty of manslaughter in the second degree, and his punishment was fixed by the court at confinement in the state reformatory at Granite for a period of two years. From the judgment so rendered he appeals.

The defendant was 16 years of age in March, 1920, and with his parents had recently moved from near Elk City, in Beckham county, to near the town of Durham, in Roger Mills county, where the father bought a farm and established a home. Soon afterwards the defendant entered as a pupil in the consolidated school of Durham, where he continued to attend until the end of the term, a period of about four months. On the 12th day of June, following, there was a public meeting or picnic in the town of Durham, at which time there was a meeting of the local Grange, and a ball game between the home ball team and the ball club from Crawford, a town some miles distant. The defendant, with a schoolmate, Floyd Parks, went to the ball grounds and took a position about half-way between third base and the home plate on the outside of the diamond. Here they were soon surrounded by a number of young men and boys who engaged in vigorous yells and hurrahs for the purpose of encouraging or confusing the players on the opposite teams, as the case might be.

The evidence on the part of the defendant tended to show that 20 or 25 young men, most of whom were older and larger than the defendant, directed their hurrahs and hazing at him and that they closed in around him, took hold of him, and tore his coat, and slapped and buffeted him, until finally Claude Wilson, the deceased, gave him a punch. The defendant claims that from the conduct of the deceased and those apparently acting in concert with him he apprehended that he was about to receive further assaults and batteries, from which he would suffer great bodily harm. Defendant stated that at the time he was punched by the deceased he told him to “holler” all he wanted to, but not to punch him again. From the testimony of others it seems that other remarks were made about that time indicative of a mutual combat, apparently a fist fight, in which'.hoth parties assumed striking attitudes at about the samje time. As to just how many times and in what manner each was struck by the other evidence is conflicting, but in the course of the affray the defendant took an open knife from his pocket and struck the deceased, inflicting two knife wounds, one of which was not of a serious nature, but the other of which penetrated the neck below the- ear, severing the arteries and blood vessels, and penetrating into the trachea near the epiglottis. The evidence of a number of witnesses was to the effect that at the time the deceased was so wounded he was retreating. It happened that there was a physician there, who came immediately, and by use of his fingers held the severed ends of the veins and arteries to prevent the deceased from bleeding to death and to prevent the blood from flowing into the trachea' and thence into the lungs. Another physician was summoned, and eventually the severed veins and arteries were closed, and other medical treatment given. Under the care of physicians the wounded boy seemed to be on the road to recovery, but an infection developed in the wound in the trachea which, in the opinion of the physicians, caused the death of the deceased on August 14th, a little more than two months after he received the wounds.

The several assignments of error contained in the petition in error defendant’s counsel have, condensed into two reasons, which in their opinion are grounds for reversing the judgment of the trial court.

The first of these grounds is that the court erred in his Instruction to the jury upon the question of the defendant’s right of self-defense, in giving instruction No. 11 1-2. The court in instruction No. 10 said, in effect, that, if it reasonably appeared to the defendant that the deceased at the tune of the tragedy was making an unlawful or violent attack upon him in a manner capable of inflicting death or great bodily harm about to be perpetrated with that intent, the defendant’s act would be justified. In instruction No. 11 the jury were instructed that a person who is unlawfully attacked is not bound to retreat in order to avoid the necessity of injuring his assailant or assailants, or of killing him or any one of them to save his own life or toi avoid serious bodily injury, and that it is .not necessary that it be shown that the danger did in fact exist, but that it is sufficient if it reasonably appeared to the defendant, from the circumstances, that such danger was imminent, and that if it did so appear defendant could defend himself to the same extent as he would be justified in doing if the danger was real. Then followed instruction No. 11 1-2, complained of by defendant:

“The law of self-defense is given to a citizen for his protection, and it cannot be pleaded as a defense by one who is the aggressor and who enters voluntarily into a difficulty armed with a deadly weapon with the intent then and there to take the life of the deceased or to do him some serious bodily injury, no matter in how much danger he may be placed in the course of the difficulty, nor how imminent his peril may become. ’ ’

Instruction No. 12 related to the appearance of danger and the extent; thereof and the degree of force necessary or sufficient to repel it. Instruction No. 13 related to the use of force greater than reasonably appears necessary. Instruction No. 14 related to real and apparent danger. Instruction No. 15 stated that self-defense is a defensive act, and not an offensive act, and further admonished the jury that the accused should use all reasonable means possible under the circumstances to avoid the taking of human life except that he is. not bound to retreat to avoid such necessity or apparent necessity provided he has done no act on his part to bring about the attack or threatened attack.

It is urged that instruction No. 11 1-2, above quoted, deprived the defendant of his right of self-defense, upon authority of Gibbons v. Territory, 5 Okla. Cr. 212, 115 Pac. 129, and of Boyer v. State, 16 Okla. Cr. 388, 183 Pac. 620. We think that instruction No. 111-2, together with the other instructions preceding and following, was not misleading, and that the defendant was not deprived of the consideration of the facts before the jury tending to establish justifiable homicide in self-defense. The declaration that “self-defense cannot be pleaded by one who is the aggressor or who enters voluntarily into a difficulty armed with a deadly weapon, with the intent then and there to take the life of the person assailed or to do him serious bodily injury,” is not contained in words or substance in the instructions given in the Boyer Case. In the Gibbons Case the facts are in no way similar to. the facts in this case. The' instructions given in the Gibbons Case and the refusal to give certain requested instructions were held to constitute error ; but a close analysis of that case will disclose that the holding of the' court therein cannot be construed as in conflict with the instructions of the court given in this ease.

The second alleged error urged is the refusal Of the court to give defendant’s proffered instruction No. 2, as follows:

“You are instructed that, when there is more than one person engaged in the making of an assault, the person upon ' whom the assault is being made has the right to act. upon the hostile demonstration of either or all of the persons so engaged, and in so acting upon such demonstration he has the right to use, as against either or all of the persons so engaged just such force as may reasonably appear to him, viewed from his standpoint and no other, to be necessary to protect his life or to prevent serious bodily injury; and if in so acting the defendant takes the life of one or more of his assailants he is not guilty.”

This contention is not well taken, for the reason that in the instructions given by the court the jury were admonished that the defendant had a right to protect himself, and to consider the hostile demonstrations of the deceased, along with those of all the other persons apparently acting in concert with him.

There were 28 different instructions given, covering, so far as we are able to determine, every phase of the law of homicide, self-defense and collateral questions related thereto. We find no reversible error in the instructions given or in the refusal of the instructions requested by the defendant.

Reference is made in defendant’s brief to the evidence of the previous good character of the defendant, to the fact that he was a mere boy, who had never been in any previous difficulty, and that the matters and things provoking the difficulty indicated that there was no intention on his part to take human life, but merely an effort to fight his way to liberty; that the blows were directed at no particular part of the body of the deceased and that in a sense the wounds inflicted were accidental. All these matters were for the consideration of the jury, and doubtless were by them so considered. The jury were better able to determine the provocation, and who was the probable aggressor, and to judge of the motives of the participants in the difficulty.

The judgment of the trial court is affirmed.

MATS'ON, P. J., and DOYLE, J., concur.


author: PER CURIAM.

text:
    EMMETT SMOOT et al. v. STATE.
    No. A-4376.
    Opinion Filed April 10, 1923.
    Rehearing Denied Sept. 15, 1923.
    (217 Pac. 1059.)
    Appeal from County Court, Woods County; L. T. Wilson, Judge.
    Emmett Smoot and' another were convicted of a violation of the. prohibitory liquor laws, and they attempt to appeal.
    Appeal dismissed.
    A. J. Stevens, for plaintiffs in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an attempted appeal from a judgment of conviction rendered against the plaintiffs in error in the county court of Woods county, wherein they were jointly tried and convicted of the offense, of unlawful possession of intoxicating liquor, and each sentenced to pay a fine of $250 and to be imprisoned in the county jail for 60 days.

Judgment was rendered on the 24th day of March, 1922, and petition in error with case-made attached was filed in this court on June 13, 1922, more than 60 days thereafter.

The Attorney General has filed a motion to dismiss the apr peal for the reason that the same was not filed within the time allowed by statute for taking appeals in misdemeanor eases. No response has been made to such motion.

Section 2808, Compiled Statutes 1921, in part provides:

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided * * * the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days.”

The record discloses that no extension of time beyond tbe 60-day period was made, by the trial court or judge, in this ease. The motion of the Attorney General to dismiss this appeal, .therefore, is well taken and must be sustained, as this court has never acquired jurisdiction to consider the appeal on its merits. Story v. State, 17 Okla. Cr. 237, 187 Pac. 508.

The appeal is dismissed, and the cause remanded to the county court of Woods county, with instructions to enforce the judgment and sentence.


author: BESSEY, J,

text:
    S. F. BOULTINGHOUSE et al. v. STATE.
    No. A-4088.
    Opinion Filed Sept. 15, 1923.
    (218 Pac. 173.)
    (Syllabus.)
    1. Criminal Law — Series of Acts Under Original False Pretense Held Separate and Distinct Offenses. In a prosecution for false pretense, where the original pretense consisted of a false representation that a fictitious person was in the employment of a corporation and his name was caused to be entered upon the pay roll of the corporation for the purpose of drawing wages for services not rendered, the fraudulent payment of wages, from time to time thereafter, on recurring pay days, and the fraudulent issuance, receipt, and cashing of such fraudulent checks, constituted separate and distinct offenses. Each fraudulent issuance and payment of such a check may be considered as a separate reiteration or repetition of the original false pretense.
    2. Appeal and Error — Indictment and Information — Information Alleging Ten Separate Offense,s in as Many Counts Demurrable for Duplicity — Overruling Demurrer Held Harmless. Where an information in ten separate counts charges that money was fraudulently obtained through the payment of ten separate cheeks issued to a fictitious person on' recurring pay days, such information is subject to demurrer on the ground of duplicity. But where such demurrer is interposed and overruled, and the accused then makes a motion requiring the state to elect upon which count it will rely for conviction, and the motion to require an election is sustained, and the state, in compliance with the court’s order elects to stand upon one count only, and by appropriate instructions the court instructs the jury to consider the evidence as affecting that count alone, and where all the evidence introduced was properly admissible and relevant, as tending to support the accusation contained in that count, under the circumstances here, the overruling of the demurrer was harmless.
    3. Evidence! — Evidence, of Similar Tiransactions Admissible to Prove Intent. In a prosecution for false pretense, where the question of intent is of vital importance, evidence of similar transactions both before and after the one charged is admissible to prove intent, where the different transactions indicate a scheme, plan, conspiracy, or system to defraud.
    Appeal from District Court, Oklahoma County; Edward D. Oldfield, Judge.
    S. F. Boultinghouse and another were convicted of obtaining money under false pretenses', and they appeal.
    Affirmed.
    Giddings & Giddings, for plaintiffs in error.
    Geo. F. Short, Atty. Gen., N. W. Gore, Asst. Atty. Gen., and Robert Burns, Co. Atty., for the State.
   BESSEY, J,

S. F. Boultinghouse and C. B. Hiler, plaintiffs in. error, herein referred to as the defendants, were on the 20th day of March, 1920, informed against jointly with H. E. Guf-fin and Mrs. M. B. Langdon. The information charged that the defendants by means of tricks, deceptions and false and fraudulent representations kept and maintained upon the pay rolls of Morris & Co. certain fictitious employes and caused to be issued to such fictitious employes pay checks for services which they represented had been performed by these fictitious persons fraudulently placed upon the pay rolls, and that these defendants and their associates fraudulently caused the checks so issued to be' paid, and that the money so obtained was divided among them.

At the trial, on April 1, 1921, the defendants were, by a verdict of the jury, fqund guilty. The punishment of defendant Boultinghouse was by the jury fixed at a term of 3 years in the penitentiary and a fine of $100, and the punishment of defendant Hiler was assessed at 18 months in the penitentiary. From the judgments on these verdicts the defendants prosecute this appeal.

The information charges the defendants and those acting with them with having obtained checks and money belonging to Morris & Co. by means of tricks, deceptions, and false and fraudulent representations, consisting of a conspiracy among certain timekeepers and secretaries of this company to carry on the pay rolls of the company certain fictitious persons, among whom was one designated Vincent Bodine, to whom the checks were issued and made payable, and that the conspirators on successive pay days caused these cheeks so fraudulently issued to Vincent Bodine to be cashed and the proceeds divided among the conspirators. The checks so issued and the proceeds so appropriated' were in different amounts, and issued and fraudulently appropriated at different times. The information recites the facts at great length, in detail, in ten separate counts, describing in each count the issuance and payment of one of these cheeks, all of which were issued to Vincent Bodine, a fictitious person, and that they were from time to time cashed and paid to one of the conspirators and the money then divided among them all.

To the information as a whole, separate demurrers were filed by the defendants, setting out, among other things, that more than one offense was set forth in the information. The demurrers were by the court overruled. Subsequently, on the 28th day of March, 1921, these defendants announced ready for trial, and the trial proceeded without any objection on the part of defendants to the introduction of evidence.

At the close of the state’s testimony, the defendants, and each of them, interposed what they termed a demurrer to the evidence — equivalent to al request for an instruction to render a verdict in favor of the, defendants — on the ground that the several counts in the information and the proof were duplicitous. These requests for an instructed verdict were by the court denied.

The defendants then requested that the state be required to elect upon which one of the checks or payments, as described in the different counts of the information, the defendants would be required to make a defense. This motion was sustained, and the state elected to stand on the fraudulent receipt of money described in the first count; whereupon the trial proceeded, and the defendants introduced their testimony.' At the close of all the testimony, the defendants requested the following instruction:

“Gentlemen of the jury, the information in this case is fatally defective, because it undertakes to charge the defendants with ten separate and distinct offenses. The information being fatally defective, a conviction cannot be sustained. Therefore this case is dismissed and the defendants discharged.”

This instruction was by the court refused.

On April 1,1921, the jury returned into court two verdicts, one finding defendant Boultinghouse guilty, the other finding defendant Hiler guilty, and fixing their respective punishments as above set out. The jury were unable to agree upon a verdict as to defendant Mrs. M. B. Langdon. After a motion for a new trial was overruled, the defendants made a motion in arrest of judgment on the ground that the information was duplicitous. This motion was likewise overruled.

The only alleged error persuasively urged in defendants’ brief is that the information charged several separate offenses and is duplicitous, based upon the following statute (section 2558, Comp. Stat. 1921):

“The indictment or information must charge but one offense; but where the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment or information and the accused may be convicted of either offense, and the court or jury trying the cause may find all or either of the persons guilty of the offenses charged, and the same offense may be set forth in different forms or degrees under different counts; and where the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count.”

We are inclined tó hold that the information as a whole was duplicitous. While the original false pretense was to the effect that Vincent Bodine was a person in being and on the pay roll of Morris & Co., this pretense was renewed and reiterated on each succeeding pay day, thus making the fraudulent drawing and cashing of these several checks separate and distinct offenses. This being true, the demurrer to the information, on the ground of duplicity, should have been sustained; likewise the so-called demurrer to the evidence should have been sustained. ,

The error in overruling the demurrer to the information, on the ground of duplicity, or the error in not sustaining the so-called demurrer to the evidence, are of slight importance in this case, however, because finally the defendants, on their own motion, were required to defend as to one count only; and the' evidence as to the offenses set out in the other counts could be properly introduced, in support of the first count, to establish a conspiracy and to show a fraudulent system or plan to deceive and defraud. Koontz v. State, 10 Okla. Cr. 553, 139 Pac. 842, Ann. Cas. 1916A, 689; Hollingshead v. State, 21 Okla. Cr. 306, 207 Pac. 104; Spies v. People, 122 Ill. 1, 12 N. E. 865, 17 N. E. 898, 3 Am. St. Rep. 320; 12 C. J. “Conspiracy,” §§ 228-230; People v. Rice, 206, Mich. 644, 173 N. W. 495.

Under some circumstances it is error to embarrass defendants with a multitude of issues, even where the offenses alleged grow out of or are directly connected with the same transaction; but such errors only as work a substantial injury to the defendant will operate to reverse a conviction, and where, as in this case, the defendant was accorded every substantial right to which he would be entitled if the case were tried again, a conviction will not be disturbed, particularly where it appears that at a subsequent trial the evidence would be the same or similar, manifestly justifying a conviction. There were not and could not be any extenuating circumstances in the perpetration of a fraud of this character. All the evidence touching the drawing and cashing of all ten of the fraudulent checks was admissible under any theory of the case.

The right of the state to introduce evidence of other like crimes, all so connected as to be explanatory of the crime! for which an accused stands charged'is well stated and analyzed in People v. Rice, supra. In that case the prosecution was permitted to introduce proof of similar transactions occurring both before and after the obtaining of the cheek in question, for the purpose of showing intent. In holding that this was proper the court, in substance, said:

The defendant stood charged in the information with making a certain false and fraudulent representation, with intent to cheat and defraud the company by means of a false and fraudulent check. The general rule of evidence is well established that upon trial for a felony the prosecution will not be permitted to give evidence tending to establish the guilt of the) defendant of another distinct and independent crime, but this rule has its exceptions. Where the question of intent is of vital importance, evidence of similar transactions, both before and after the one charged, are admissible to prove intent. The underlying reason for the exception lies in the fact that a man may be honestly mistaken, and the proof of one transaction standing alone would not establish a fraudulent intent; but the probability of an honest intention diminishes as the number of similar transactions, indicating a scheme or system, increases. Thus, a man may honestly offer a counterfeit bill, and the one transaction standing alone has little force in proving guilty knowledge, in proving intent to defraud; but, if he successively offers 5 or 25 counterfeit bills, as such offers increase in number the probability of an honest mistake diminishes and the probability of guilty knowledge and intent to cheat increases.

In 3 Greenleaf on Evidence (16th Ed.) § 15, it is said:

"The unlawful intent in the particular case may well be inferred from a similar intent proved to have existed in other transactions done before or after that time. ’ ’

In 1 Wigmore on Evidence, § 320, it is said:

"Subsequent representations are equally admissible with prior ones, because on the principle of intent it is the repetition of them that is significant, and a subsequent instance reduces the probability of innocence equally as well as a prior one.”

And in Wharton on Criminal Evidence (10th Ed.) vol. 1, § 39, is found the following:

"When the object is to show system, subsequent as well'as prior collateral offenses can be put in evidence, and from such system identity or intent can often be shown. The question is one of induction, and the larger the number of consistent facts the more complete the induction is.”

Por a more complete and extended analysis of this rule of evidence, see People v. Rice, supra, and cases there cited.

The record here shows that this class of evidence introduced in this case could, and doubtless would, be introduced at a retrial on the merits.

The judgment of the court below is therefore affirmed.

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


text:
    DAN O’HARA v. STATE.
    No. A-4208.
    Opinion Filed Sept. 17, 1923.
    (218 Pac. 161.)
    Appeal from Superior Court, Okmulgee County; H. R. Christopher, Judge.
    Dan 0 ’Hara was convicted of the unlawful conveyance of intoxicating liquor, and he appeals.
    Modified and affirmed.
    L. A. Wallace, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appeal from the superior court of Okmul-gee county. Conviction for the offense of unlawfully conveying intoxicating liquor with punishment assessed at a fine of $500 and term of six months’ imprisonment in the county jail, the maximum penalty under the law. Judgment rendered November 22, 1921. Petition in error and case-made filed in this court February 14, 1922.

The information charged that plaintiff in error, Dan 0'’Hara, “on or about the 17th of September, 1921, did unlawfully, knowingly, willfully and wrongfully convey and transport certain spirituous liquors, to-wit, whisky, from a point unknown in Okmulgee county, state of Oklahoma, to another point in Okmulgee county, state of Oklahoma, to-wit, to the dancing platform in Spelter City, Okmulgee county, Okla., in violation of the provisions of section 7002, Compiled Statutes 1921.” The information was not attacked in the trial court. The only errors urged here are that the evidence is insufficient to sustain the conviction, and, second, that the punishment assessed is plainly excessive in that it is apparent that the jury was prejudiced against the defendant.

An examination of the record convinces this court that the evidence is sufficient. The facts and circumstances detailed by the state’s witnesses, if believed by the jury, justified a finding of guilt.

There is nothing in the record to show that the defendant has ever before been convicted of the violation of the prohibitory liquor laws of this state, or for- any other criminal offense. The conviction is based largely on circumstantial evidence, and, as heretofore stated, while we believe it sufficient to sustain the verdict, the assessment of the maximum penalty under the facts in this case apparently is not warranted. The penalty assessed is that usually inflicted upon confirmed violators of the prohibitory liquor law, or else where there are facts and circumstances in aggravation of the offense.

After careful examination of the record, we are of the opinion that the punishment inflicted is out of proportion with the crime proven (a first offense as far as the record discloses), and for that reason are of the opinion that the judgment should be modified to provide imprisonment in the county jail for a period of 30 days and a fine of $200.

The judgment is therefore modified to provide imprisonment in the county jail for a period of 30 days and a fine in the sum of $200; and as so modified, the judgment is affirmed.


author: DOYLE, J.

text:
    GEORGE KILLINGER v. STATE.
    No. A-4101.
    Opinion Filed Sept. 17, 1923.
    (218 Pac. 182.)
    (Syllabus.)
    Homicide — Evidence Sustaining Conviction of Murder'. In a prosecution for murder committed in perpetrating a robbery, evidence considered and held sufficient to sustain a conviction of murder.
    Appeal from District Court, Tulsa County; Redmond S. Cole, Judge.
    George Killinger was convicted of murder and he appeals.
    Affirmed.
    W. B. Richards, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, George Killinger, and Bob Crawford, were indicated in the district court of Tulsa county for the crime of murder in killing one W. S. Ward, in said county, on the 10th day of October, 1915. Upon his separate trial plaintiff in error, Killinger, was found guilty of. murder and in accordance with the verdict of the jury was adjudged to be imprisoned in the state penitentiary at hard labor during the term of his natural life. He has appealed from said judgment to this court, but there has been no appearance in his behalf on his appeal, and the case is submitted on the record.

The grounds of the motion for new trial and the assignments of error relate to rulings of the court in the admission of evidence, instructions given to the jury, and the sufficiency of the evidence taken as a whole to sustain the verdict.

The facts which are undisputed, or which the evidence tends to prove, are as follows:

In the town of Dawson, four or five miles northeast of the city of Tulsa, between the hours of 8 and 9 o ’clock p. m., Sunday evening, Oct. 10,1915, W. R Ward left his store and started towards his home, distant a block or two. On his way the defendant stepped out from behind a building and ordered him to stick his hands up. A struggle ensued, and the defendants fired several shots. In the meantime they all circled around into the middle of the street, two more shots were fired, and Ward fell. The defendants searched his pockets, taking his watch and what money he had. As they started away, W. S. Brown, another storekeeper in Dawson, met them; the defendants ordered him “to stick ’em up,” and Brown commenced shooting. At his third shot the defendant Crawford fell; defendant Killinger raised him up, and they disappeared down an alley. There were several eyewitnesses to the shooting; when they reached Ward he was dead. The next morning officers went to the home) of Bob Crawford; they found blood on the steps and learned that he was in the Tulsa Hospital with a gunshot through his lungs; they then went to the home of Killinger and from there to his barber shop on First street in Tulsa, and he was not there. About five years later he was found in Stony Bluff penitentiary, in the Dominion of Canada.

An officer testified that between 2 and 3 o’clock that Sunday afternoon the defendants, armed with guns,, created a disturbance at a dance' hall in Tulsa; that when the officers appeared they ran out the back door and were later seen going along the railroad toward Dawson. About 5 o ’clock that Sunday evening they were seen by two or three witnesses in the town of Dawson. Between 6 and 7 o ’clock they entered a restaurant a few doors from the store of the deceased and had supper. One or two persons who knew the defendant Crawford talked to him. Then the defendants went across the street and sat down on a porch. About an hour later they left and went around towards the building and where the holdup occurred.

Lester Chism, testified:

“I had known Bob Crawford nearly' all my life. I talked to him, and this defendant was sitting by his side. I saw them walk over and go behind that building; .shortly after I heard scuffling; they were striking at Ward, and he was knocking the licks off; one of them shot. After Ward got out in the street, they fired two or three more shots. ’ ’

Three or four witnesses positively identified the defendant Killinger as the man who was with the defendant Crawford in the restaurant.

Mrs. Mills testified that Ward fell when the last shot was fired in the street, and the defendants stooped over him and began going through his pockets; that she heard them say to Mr. Brown when he came up, “stick them up,” and Mr. Brown commenced shooting.

W. S. Brown testified:

“I heard the shooting and grabbed my gun and ran down the street. I was held up by two men. The first one said, ‘Put them up. ’ The second says, ‘God damn you, put them up.’ I fired and missed. I fired again and missed. I knew I had only three shots, and I ran up within four feet of the nearest one and shot him. The other one opened fire on me, and I ran a half a block to my father’s and got his shotgun. As I came backy I ran across Ward’s body and stopped.”

There was no testimony offered on the part of the defendant.

We have given careful examination to the record in this case and find no error justifying a reversal. Some exceptions were taken during the course of the trial to the admission of evidence bearing upon the issues in the case, but we are of the opinion that none of them were well taken. We have examined the instructions given and the one refused, and discover no error. The instruction requested was to the following effect:

“The mere presence of a party at the scene of the homicide does not make him a criminal; he may have known that a crime was committed; if he did not participate in it directly or indirectly or encourage the party doing the killing, his> mere presence would not constitute him a principal in the transaction, nor connect him criminally with the killing.”

This feature of the case was properly covered in the instructions given by the court.

The testimony on the part of the state was, without a doubt, sufficient to sustain the verdict.

Upon the whole, case it appears to us that the defendant had a fair trial, and that the ends of justice under the law were no more than satisfied by the verdict and judgment of. conviction.

The judgment of the lower court is accordingly affirmed.

MATSON, P. J., and BESSEY, J., concur.


text:
    TOM WARREN v. STATE.
    No. A-4536.
    Opinion Filed Sept. 18, 1923.
    (218 Pac. 1118.)
    Appeal from County Court, Cotton County; J. C. Norman, Judge.
    Tom Warren was convicted of a violation of the prohibitory liquor law, and he appeals.
    Appeal dismissed.
    Lewis Hunter, for plaintiff in error.
   PER CURIAM.

Plaintiff in error, Tom Warren, was convicted in the county court of Cotton county on an information charging that he did in said county on the 17th day of August, 1922, willfully and unlawfully manufacture spirituous liquor, and his punishment was fixed at confinement in the county jail for 30 days' and a fine of $50. From the judgment rendered on the verdict, he appealed by filing in this court on January 4, 1923, a petition in error with case-made. The plaintiff in error by his counsel of record has filed a motion to dismiss his appeal, which motion is sustained, and the appeal herein is dismissed, and the cause remanded to the trial court.