text:
    G. M. COBURN v. STATE.
    No. A-9706.
    Oct. 2, 1940.
    (106 P. 2d 533.)

      John W. Whipple, of Stillwater, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and L. J. York, Co. Atty., of .Stillwater, for defendant in error.
   BAREFOOT, J.

The defendant was charged in the district court of Payne county with the crime of felonious possession of intoxicating liquor after a previous conviction ; was tried, convicted and sentenced to- pay a fine of '$100 and serve 90 days in the county jail, and has appealed.

The facts in this case, briefly stated, are that Deputy Sheriff Louis Smith of Stillwater, Payne county, Okla., received a phone call, and in company with Warren Graham, a city policeman, proceeded to the home of T. J. Sloan, who is' the next door neighbor of the defendant, G. M. Coburn. Their residences were about one and three-quarters miles (from the city of Stillwater, and just out of the city limits, but near the Oklahoma Agricultural and Mechanical College. They lived about 250 feet apart.

The witness Smith got out of the car and was engaged in conversation with Mr. Sloan when Mr. Graham, who was sitting in the car, tapped on the windshield and called' him. Both of these witnesses then saw defendant leave his home, go to the rear of his premises, and go< through an opening in the fence to an abandoned field which was the property of Mr. Moffitt, and get down on his knees and begin taking bottles (from his pockets, and then place them in the ground and place grass over them. Both officers testified that they saw the bottles; and the sun was shining and they could distinguish the color; and that ■both came to tbe conclusion it was whisky. They proceeded to tbe premises of tbe defendant, and drove into tbe driveway; and tbe defendant was returning from tbe place where they bad seen him. Officer Graham, according to bis testimony, immediately placed him under arrest, and searched him, and found a pint bottle of whisky on bis person, some Of which bad been used.

Officer Smith proceeded to where they bad seen defendant, and called Mr. Graham, and be went to tbe place; and they found three “caches” or places where liquor was hidden. Four pints were found in one place, three pints in another, and four quarts in another. Grass had been placed over the liquor to conceal the same. The four quarts were hidden in an old ice cream freezer. The brands of the whisky were: “Old Mr. Boston,” “Old Club,” and “Hiram Walker,” all tax-paid whisky. The bottle taken from the person of the defendant was “Old Club.”

Officer Graham, who testified the defendant had followed him to the place where the liquor was found, testified the defendant said, “You are just stealing, my whisky.”

Defendant was taken to the county jail and placed therein, and charged as hereinbefore stated.

Defendant, testifying in his own behalf, denied either possession or knowledge of the whisky found on the Mof-fitt place, and said that the pint found on his person was for his own use, and had been purchased in the city of Stillwater. He was using it for a goiter which he had. He admitted that he just returned from the Moffitt place when the officer arrested him, but explained that he had gone there for the purpose of driving some chickens onto his place, and also testified that he was bent over to take a weed from his shoe, and that was probably when the officers saw him. He also testified that the officer searched him immediately; and that he was not placed under arrest until the whisky was found on bis person. On cross-examination be testified that be had been previously charged, convicted, and bad served a sentence for unlawful possession of intoxicating liquor, in Payne county, in 1934.

His neighbor, Mr. Sloan, testified that he and defendant measured the distance from where the officers said that the place where the liquor was found was located, and it was 500 feet.

Evidence was given with reference to a tree being between the place where the officers were and where the liquor was found; also some woven wire fence.

The officers testified that their sight was not obstructed by any fence or trees; and that they could distinctly see defendant and the bottles of whisky which he was hiding.

It was admitted by counsel that defendant had been convicted and had served a sentence for unlawful possession of intoxicating liquor in Payne county in 1934.

The officers testified that they did not have a search warrant for the person or premises of the defendant; but that he was arrested for the commission of a crime in their presence.

For reversal of this case, it is contended by defendant that the court erred in overruling defendant’s motion to quash the information on the ground that sufficient evidence was not taken in the preliminary examination to warrant or justify the defendant being bound over to the district court for trial. To support this contention, it is argued that the officers not having a search warrant to search either the person or premises of the defendant, was fatal, and that for this reason defendant could not have been charged and convicted.

At tbe bearing on tbe motion to suppress, tbe evidence offered at tbe preliminary trial was introduced; and it was practically the same as introduced at tbe trial of this case, and as has been above outlined.

In tbe first place, tbe greater part of tbe liquor was found on tbe premises of Mr. Muffitt, and not on tbe premises of tbe defendant; and under tbe previous decisions of this court, defendant cannot raise tbe question of tbe validity of tbe search warrant under this state of facts. White v. State, 33 Okla. Cr. 428, 244 P. 450; Penrod v. State, 38 Okla. Cr. 46, 258 P. 1052, 1053; Hall v. State, 39 Okla. Cr. 254, 264 P. 221; Williams v. State, 56 Okla. Cr. 66, 33 P. 2d 234; Stump v. State, 66 Okla. Cr. 391, 92 P. 2d 616; Boardwine v. State, 64 Okla. Cr. 49, 76 P. 2d 1081; Bemus v. United States, 6 Cir., 291 P. 501.

It is argued by tbe defendant that by reason oif tbe distance, 500 feet from where tbe officers were and where tbe wbisby was found, it would have been impossible for tbe officers to have seen tbe defendant and bnown it was wbisby; and at this distance crime could not have been committed in their presence. This was a question of fact for tbe jury to decide, under all tbe facts and circumstances. Tbe distance could not have been decided as a matter of law. Certainly, if tbe officers saw someone shoot another at this distance, they would have the right to arrest. Had tbe officers not seen tbe defendant biding tbe wbisby, there would not have been any attempt on their part, in all probability, to search tbe premises or person of defendant without having a search warrant.

They testified they were mabing an investigation after being called on tbe phone. If a crime was committed in their presence while mabing this investigation, they certainly bad a lawful right to mabe the arrest. There was no attempt on their part to search the premises of defendant, bnt only Ms person, after bis arrest. This was a proper precaution on the part of the officer, and a right which he had under the law.

It is also contended that the court erred in ¡failing to sustain defendant’s objection to certain incompetent, irrelevant, and immaterial testimony. We have examined this testimony and are of the opinion that no error was committed by the court in the admission of evidence.

It was also contended that the court erred in making a remark to the jury as they retired: “I would appreciate it if you did not take any more time on this case than is necessary, as we have another coming up, and you might be needed as jurors in that case.” There is nothing in the record to show that this statement was made by the trial court; and no> exceptions were, in any way, taken to anything the court said or to the instructions given by the court. The only place that this statement appears is in defendant’s motion in arrest of judgment. Under the decisions of this court, this would not have been reversible error if made and no exception taken. Young v. State, 39 Okla. Cr. 100, 263 P. 167, Bird v. State, 22 Okla. Cr. 263, 210 P. 925.

Finding no error, the judgment of the district court of Payne county is affirmed.

DOYLE, P. J., and JONES, J., concur.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    FRED HOOD v. STATE.
    No. A-9709.
    Oct. 9. 1940.
    (106 P. 2d 271.)

      John Howard Payne, of Oklahoma City, for defendant.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for the State.
   BAREFOOT, J.

Defendant was Charged in Tulsa county with the crime of murder, was tried, convicted of manslaughter in the first degree, and his punishment assessed by the jury at 25 years in the penitentiary; and he has appealed.

In the brief filed by defendant, it is generally contended that this case should be reversed because the defendant did not have a fair and impartial trial, and that if it is not reversed, that the judgment and sentence is excessive under the evidence, and that same should be modified.

Defendant was charged with the murder of Garrett Bailey, who was generally known as Cotton Bailey, at defendant’s restaurant and beer parlor, located on North Peoria street in Tulsa, between 11:30 p. m, and 12 o’clock midnight, May 8, 1938. The evidence reveals that the deceased was a large man, over six feet tall; had been to the penitentiary two or three times for murder and manslaughter; that he had killed several persons; and that his reputation as a dangerous man when drinking was bad. It is also revealed that defendant had been to the penitentiary twice on a narcotics charge, and once for a violation of the prohibition law.

On the evening, of June 8, 1938 deceased came to the place of business of the defendant about 4 o’clock in the afternoon. He inquired of the wife of the defendant, who was in charge at that hour, for defendant, and was informed that he was in the back room asleep and could not be disturbed. He left and returned about 5:30 p. m., and had a conversation with the defendant in front of his place of business; that deceased was drinking heavily at the time and wanted the defendant to go across the street and bring a certain party over to his place of business so that he could whip him. This party had defendant arrested a short while before for the larceny of a jumper. Defendant had assisted him in securing his release in that case; and defendant and deceased had been good friends for many years. The defendant refused to go and get the other party, and told deceased that he could not afford for him to have any trouble at his place of business. Deceased tried to get him to1 drink some corn liquor which he had, and defendant refused. He saw deceased hide the liquor in some weeds. The defendant finally persuaded deceased to gO' in his car that was parked in front in the street; he did so> and slept there until about 10:30 p. m., when he awoke again and came into the defendant’s place. A number of people were there eating, dancing, and drinking beer.

Without stating too much of the details, deceased was drinking heavily and had trouble with several people who were there. Among them were a brother of defendant and a man by the name of George Williams, who was known as Wimpy Williams. Some of defendant’s patrons started to leave the place by reason of the annoyance oí deceased; but defendant saw them and persuaded them to return, stating that he would get the deceased to be quiet; defendant talked to deceased and tried to get him to be quiet and go home. He had stepped out in front ¡of his place of business, and on hearing a conversation returned inside just in time to see Wimpy Williams throw a bottle at deceased; and saw deceased, as he testified, coming toward him with a knife in his hand open; that Wimpy Williams hollered at him, saying, “Freddie, watch out, he has a knife.” That he backed back a few feet, and deceased attempted to strike him with a knife; and he shot deceased at that time through the head; that he fell to the floor and was carried out onto the porch, and was afterwards taken in an ambulance to the hospital, where he died in a short time from the effect of the wound inflicted by the shot.

The evidence with reference to deceased having a knife was conflicting. Many of the witnesses testified that he had and that they had seen him with it open in the defendant’s place of business several times during the evening that he was there. Others did not see the knife and did not see the deceased attempt to strike defendant at the time the shot was fired.

The evidence was somewhat conflicting. The jury were in a much better position to judge the facts than an appellate court.

When deceased’s clothing was searched at the hospital, a small pocket knife was found in his pocket. It was not open. No knife was found at the scene of the difficulty.

It is unnecessary to review the whole of the evidence. Enough has been noted. There were extenuating circumstances on the side of the defendant. He exercised all of his power to try and keep the deceased, who was drinking heavily at the time, from creating a disturbance at his place of business. He was not unfriendly to the deceased. As a matter of fact, the evidence reveals that he was not only friendly but was kind to him, and before the killing he had asked Wimpy Williams to leave deceased alone, and that he would take care of him. This he tried to' do ; but, even though this were true, the defendant did not have the right to take the life of deceased, as revealed by the evidence in this case.

If the jury believed the evidence offered by the. state, as they evidently did, they were justified in returning a verdict of guilty against the defendant. The evidence of the state’s witnesses was that they did not see deceased make any demonstration towards defendant; that they did not see any knife in his hand; and immediately after the bottle was thrown at the deceased by Wimpy Williams, that defendant fired and deceased fell to the floor; that they were some distance apart at the time the shot was fired. Many of the physical facts corroborate this testimony. No knife was found where deceased fell. He had no opportunity to close it and put it in his pocket after the shot was fired. A closed knife was found in Ms pocket at the undertaker’s. The jury had the right to consider all these facts, and their verdict should not be reversed on the ground that there was insufficient evidence to support it.

The bare belief that one is about to suffer death or great personal injury will not, in itself, justify him in taking the life of his adversary. There must exist reasonable grounds for such belief at the time of the killing, and the existence of such ground is a question for the jury. Fixico v. State, 39 Okla. Cr. 95, 263 P. 171; Edge v. State, 39 Okla. Cr. 277, 264 P. 213; Hunt v. State, 29 Okla. Cr. 255, 233 P. 506.

Tbe right to' take another’s life in self-defense is not to be tested by the honesty or good faith of the defendant’s belief in the necessity of the killing, but by the fact Avhether he had reasonable grounds for such belief. Lee v. State, 33 Okla. Cr. 370, 244 P. 455.

The contention of defendant that the verdict, under the circumstances and evidence, was excessive, will have to be upheld. While the past records of both the defendant and deceased were bad, yet the evidence in the case reveals that the defendant was at his place of business; and there was no evidence to show that he was in any way conducting it in an unlawful manner. He was friendly with the deceased and had known him for many years. He tried to keep him from disturbing his customers and was very lenient with him. The fact that defendant had been convicted on two. prior occasions on a narcotics charge and also once for a violation of the prohibitory law, no doubt, caused the jury to assess the severe penalty that they did.

While we believe the defendant should be punished for the crime committed, it is our opinion that the judgment and sentence should be modified from 25 years in the penitentiary to 12 years.

In the following cases the judgment and sentence has been reduced in cases somewhat similar to the one at bar: Gray v. State, 56 Okla. Cr. 208, 38 P. 2d 967; Seals v. State, 54 Okla. Cr. 204, 16 P. 2d 885; Hollingsworth v. State, 50 Okla. Cr. 164, 297 P. 301; Hogshooter v. State, 50 Okla. Cr. 119, 296 P. 531; Houser v. State, 41 Okla. Cr. 129, 271 P. 857; McJunkins v. State, 35 Okla. Cr. 164, 249 P. 158; Poster v. State, 11 Okla. Cr. 25, 141 P. 449.

We have examined the requested instructions offered by the defendant, and also the instructions given by the court.' We find no- error in the court’s refusal to give the requested instructions. As a matter of fact, the defense which they presented was covered by the general instructions. We find no error in the general instructions given by the court.

The defendant was given a fair and impartial trial with the exception that the judgment and sentence was excessive. Under the law, the trial court did not have the power to set the verdict of the jury aside except by the granting of a motion for a new trial and this would necessitate the county going to the expense of conducting a new trial. This court, under the law, has that power; and we are of the opinion that justice demands that the judgment and sentence should be reduced as aforesaid.

The record reveals that the defendant made an appeal bond in this case. The district court of Tulsa county is hereby directed to correct its judgment and sentence in accordance with the terms off this opinion.

It is, therefore, ordered that the judgment and sentence of the district court of Tulsa county be modified from a term of 25 years in the penitentiary to a term of 12 years and, as so modified, is affirmed.

DOYLE, P. J., and JONES, J., concur.


author: JONES, J.

text:
    L. A. COLLINS v. STATE.
    No. A-9678.
    Oct. 9, 1940.
    (106 P. 2d 273.)

      D. D. Archer and Fred M. Black, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., and Walter Marlin, Asst. Co. Atty., both of Oklahoma City, for defendant in error.
   JONES, J.

The defendant, L. A. Collins, was charged in the district court of Oklahoma county with the offense of forgery in the second degree; was tried, convicted, and sentenced to serve a term of five years in the State Penitentiary, and has appealed to this court.

The defendant contends:

First. That the court erred as a matter of law in not sustaining the defendant’s plea of former jeopardy at. the beginning of the trial.

Second. That if the court did not err as a matter of law in denying the defendant’s plea of former jeopardy, that the facts in evidence were such as to require the issue of former jeopardy to be submitted to the jury for their determination under proper instructions.

The information filed against the defendant is as follows:

“In the name and by the authority of the State of Oklahoma, comes now Lewis R. Morris, the duly qualified and acting County Attorney in and for Oklahoma County, State of Oklahoma, and on his official oath gives the District Court in and for said Oklahoma County and the State of Oklahoma, to know and be informed that heretofore, to-wit: on the 30th day of October, A. D. 1936, in Oklahoma County, .State of Oklahoma, L. A. Collins and Bess M. Hedge, whose more full and correct names are to your informant unknown, then and there being, did then and there willfully, unlawfully and feloniously commit tbe crime of forgery in tbe second degree in tbe manner and form as follows, to-wit: That in tbe county and state aforesaid and on tbe day and year aforesaid, tbe said L. A. Collins and B. M. Hedge, with tbe intent then and there to increase tbe credit of tbe Oklahoma Postal Employees Association in its account with Tbe First National Bank & Trust Company olf Oklahoma City, Oklahoma, tbe depository for the funds of said Oklahoma City Postal Employees Association, did cause said Tbe First National Bank & Trust Company of Oklahoma Cty, Oklahoma, to credit on its books to' tbe account of Oklahoma City Postal Employees Association tbe amount of one certain false, forged and spurious check in words and figures as follows, to-wit: ‘New York, N. Y. October 30, 1936 No. •-The First National Bank Pay to tbe order of L. A. Collins . . . . $13,776.00 Thirteen Thousand Seven Hundred Seventy-six Dollars .... Dollars (Signed) B. M. Hedge’, the said defendants, L. A. Collins and B. M. Hedge well knowing said check to be false, forged and spurious, and that the same was made, executed and delivered and credit received therefor on the account of the Oklahoma City Postal Employees Association with said The First National Bank & Trust Company of Oklahoma City, Oklahoma, for the false and fraudulent purpose of misleading the auditor then and there engaged in auditing, the books and accounts of said Oklahoma City Postal Employees Association as to the true financial condition olf said Oklahoma City Postal Employees Association of which association the said L. A. Collins was then and there secretary-treasurer and whose books and accounts were then known by him and by the said B. M. Hedge to be short by reason of embezzlement of funds in the custody and control of said defendant, L. A. Collins in his said official capacity, said defendants, L. A. Collins and B. M. Hedge acting conjointly and together for the purpose of concealing the condition of said books from the auditor then and there engaged in auditing such books and for the purpose of concealing from such auditor and from the Oklahoma City Postal Employees Association the fact of such embezzlement and defalcation of the funds of such association, all with the felonious intent aforesaid, contrary to the form of tbe statutes in such cases made and provided against the peace and dignity of the State of Oklahoma.”

The proof in connection with the defendant’s plea of former jeopardy showed that on November 12, 1937, the defendant was charged with the embezzlement of |40,000 from the Oklahoma City Postal Employees Association, a corporation, during the period of time from February 1, 1936, to November 6, 1937. To* this charge of embezzlement the defendant on December 9, 1937, entered his plea of guilty and was sentenced to serve a term of five years in the Penitentiary at McAlester. He was incarcerated in the State Penitentiary, serving this sentence when the information in the case at bar was filed against him, March 5, 1938.

The defendant introduced in connection with his plea of jeopardy a certified copy of the information, the minutes of the court in connection with his arraignment, and the judgment and sentence pronounced against him in the embezzlement case.

It appears from the facts that the postal employees of Oklahoma City formed a corporation under the name pf Oklahoma City Postal Employees Association on July 21, 1933. After the formation of this corporation, the defendant was selected as the treasurer of the association, and as such treasurer was given the control over the funds which were collected for the association as dues from the postal employees who- belonged to the association. There were about 200 members of this association in Oklahoma City. The fiscal year of the corporation closed on October 31st of each year. On October 31, 1936, an auditing committee from the members of the association was selected to audit the books of the defendant and to report the financial condition of the association as of the close of the fiscal year.

On October 30, 1936, the defendant, in order to conceal a shortage in Ms account, deposited a check in the sum of $13,776 to the credit of the association in their depository bank in Oklahoma City. The check is as follows :

“New York, N. Y.
October 30, 1936 No. ——
“The First National Bank Pay to the order of L. A.
Collins .$13,776.00
Thirteen Thousand Seven Hundred Seventy-six Dollars
.....Dollars
“(Signed) B. M. Hedge”

After this check was deposited, the bank credited the account of the Oklahoma City Postal Employees Association with the amount of the check and sent the check through to their correspondent bank in New York for collection. B. M. Hedge had no account in the First National Bank of New York, and the check was accordingly returned to the Oklahoma City bank on November 7, 1936. During the interim between the date of the deposit of the check on October 30, 1936, and the return of the check on November 7, 1936, the auditing committee made an audit of the defendant’s books as treasurer of the association and found, that his books balanced and the records were correct.

At the close of the fiscal year in October, 1937, another auditing committee was selected to audit the defendant’s books. It was during this audit that the embezzlement of the defendant was learned, and the defendant fled from the city for several days at that time.

The defendant did not take the stand, and offered no defense to the proof introduced by the state, but rested his case solely upon the question of former jeopardy.

This action was instituted under the provisions pf section 2137, O: S. 1931, 21 Okla. iSt. Ann. § 1590, which reads as follows:

“Every person who being a member or officer or in the employment of any corporation, association or partnership, falsifies, alters, erases, obliterates or destroys any account or book of accounts or records belonging to- such corporation, association or partnership, or appertaining to their business or makes any false entries in such account or book or keeps any false account in such business with intent bo defraud his employers, or to conceal any embezzlement of their money, or property, or any defalcation or other misconduct, committed by any person in the management of their business, is guilty of forgery in the second degree.”

Both the state and the defendant have cited a great-number of cases which they allege sustain their respective theories. It seems to us, however, that the statute itself is plain and unambiguous, and shows that it was the intent of the Legislature to' create a new offense, and that where an officer or member of a corporation falsifies any record to conceal an embezzlement, he would be guilty of the crime oif forgery in the second degree. It is recognized that embezzlement and forgery are separate and distinct crimes; but it is not unusual to have separate and distinct crimes arising from the same transaction.

In the case of Orcutt v. State, 52 Okla. Cr. 217, 3 P. 2d 912, 914, this court discussed the question as to the test to apply on a plea of former jeopardy at great length. The following is quoted from that opinion:

“Wharton’s Criminal Law, vol. 1 (11th Ed.) p. 508, states the rule:
“ ‘On a plea of former acquittal or conviction the accused must show that he was acquitted or convicted of the same accusation against him in the former trial; not of an entirely different offense growing out of the same state of facts or transaction.
“ ‘The same act may constitute two’ or more offenses which are distinct from each other. In such cases the accused may be separately prosecuted and punished ifor each, and a conviction or acquittal or prosecution for one will not constitute an acquittal and a bar for the other. Thus where two or more are assaulted, robbed or their goods stolen, or are shot or murdered by one and the same act at the same time, conviction or acquittal on an indictment for offense against the one will be no bar to a trial on an indictment charging the offense against the other.’

“8 Buling Case Law, p. 143, § 128, states the rule thus:

“ ‘The prohibition of the ancient principle of the common law and the constitutional provisions declaratory thereof, against a second jeopardy, apply only to a second prosecution for the identical act and crime both in law and fact for which the first prosecution was instituted.
“ ‘When a single transaction constitutes two or more offenses, wherein the lesser offense is not necessarily involved in the greater, and when the facts necessary to- convict on the second prosecution would not necessarily have convicted on the first, then the first prosecution will not be a bar to the second.
“ ‘A putting in jeopardy for one act is- no bar to a prosecution ifor a separate and distinct act, merely because they are so closely connected in point of time that it is impossible to- separate the evidence relating to- them on the trial for the one of them first had. Consequently a plea of former jeopardy will not be sustained where it appears that in one transaction two distinct crimes were committed.’

“In 16 Corpus Juris, p. 263, § 443, the rule is stated:

“ ‘The prohibition of the common law and of the Constitution is against a second jeopardy for the same “offense”, that is, ifor the identical act and crime; or, as expressed in a number of cases, to entitle a defendant to plead successfully former jeopardy, the offenses charged in the two prosecutions must be the same in law and in fact. The plea will be vicious if tbe offenses charged in the two indictments are perfectly distinct in point of law, however nearly they may be connected in point of fact. It is not necessarily decisive that the two offenses may have some material fact or element in common, tor that they are similar, where they are not in fact the same. The test is not whether defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. The term “same offense,” however, does not signify the same offense eo nomine, but the same criminal act, transaction or omission.’

“In State v. Ragan, 123 Kan. 399, 256 P. 169, that court said:

“ ‘Defendant with three others in a stolen automobile, defendant at the wheel, drove to a drug store, robbery in view. Defendant remained in the car while his three companions proceeded to rob the store. While the robbery was being perpetrated, and at the approach of officers, defendant got out of the car and fled. Without knowledge of the robbery, and after its completion, but before the robbers had departed, the officers entered the store, when one of them was shot by one of the robbers, death ensuing. Defendant was acquitted of the charge of murder, and in a later action for robbery filed a plea of former jeopardy. Held, such plea was properly overruled.
“ £In criminal cases the ultimate test applied in determining the validity of a plea of former conviction or former acquittal is identity of offenses, and it is not necessarily decisive that the two offenses may have some material fact in common (State v. Schmidt, 92 Kan. 457, 140 P. 843).’

“In Keeton v. Commonwealth, 92 Ky. 522, 18 S. W. 359, that court said:

“ ‘Presenting a pistol at two persons at the same time, coupled with a demand of their property, and compelling a surrender thereof by both at the same time, constitutes distinct offenses against them, — an assault on and robbery of each.’ ”

In Estep v. State, 11 Okla. Cr. 103, 143 P. 64, 65, this court said:

“Under the constitutional guaranty not to be twice put in jeopardy, the decisive test on a plea of former jeopardy is whether the same testimony will support both charges. Otherwise stated, the offenses are the same whenever evidence adequate to one information will equally sustain the other.”

The decisions of courts of other jurisdictions uniformly sustain the above rule.

Early in our history, the United States Supreme Court in the case of United States v. Randenbush, 8 Pet. 288, 8 L. Ed. 948, held that unless the first indictment was such as the prisoner might have been convicted upon proof of the facts contained in the second indictment, an acquittal on the first indictment can be no bar to the second.

In the case of Spears v. People, 220 Ill. 72, 77 N. E. 112, 4 L. R. A., N. S., 402, the Illinois court dealt with a case similar in facts to the case at bar. The court in that case held:

“An acquittal on a prosecution for larceny and embezzlement is no- bar to' a prosecution for forgery and passing a forged instrument, though the prosecutions grow out of the same matter, as there could not have been a conviction on the first prosecution of the offense charged in the second.”

In Commonwealth v. Roby, 12 Pick., Mass., 496, it was stated:

“ ** * * If the crimes charged in the former and present prosecution are so distinct, that evidence of the one will not support the other, it is inconsistent with reason, as it is repugnant to the rules of law to say, that the offences are so far the same, that an acquittal of the one will be a bar to the prosecution for the other.’ * * *
“In considering tbe identity of tbe offense, it must appear by the plea, that the offence charged in both cases was the same in law and in fact. The plea will be vicious, if the offences charged in the two- indictments be perfectly distinct in point of law, however nearly they may be connected in fact.”

The proof necessary to convict on the embezzlement charge would not necessarily convict on the forgery charge. The embezzlement could be proved without any reference to the foi’ged instrument. The embezzlement was complete before the offense of forgery was committed. The later offense was committed to cover up his first crime. It is not uncommon for persons who have violated the law and are about to- be caught to go ahead and commit further crimes in an endeavor to conceal or escape from the first offense.

From the foregoing it can be seen that the court did not err in denying the defendant’s plea of former jeopardy at the beginning of the trial.

At the conclusion of the case, the defendant requested the court to- submit the question of former jeopardy to the jury as a question of fact for their determination. The court refused to give the requested instruction, but instead gave instruction No-. 9 as follows:

“The defendant has also- plead as a defense in this case what is known in law as- former jeopardy. He takes the position that this offense charged in this information upon which he has proceeded to trial, arose out of the same transaction that gave rise to- a former embezzlement charge, and to- which he pleaded guilty and is now serving, a term in the penitentiary for said embezzlement. After a consideration of all the facts and circumstances in this case, and after a consideration of the law relative to such plea, the court had determined, as a matter of law, that the offense charged in this information, is a separate and distinct offense from that heretofore charged against the defendant, to-wit: embezzlement, and therefore this defense interposed by Mm in this ease, tof former jeopardy, is not availing to the defendant.”

The plea of former jeopardy is an affirmative plea, and the burden of sustaining it is on the defendant. Harris v. State, 17 Okla. Cr. 69, 175 P. 627.

Where the facts as concerns the question of former jeopardy are undisputed, it becomes a question of law for the court to decide whether the undisputed facts show that the offense charged in the information is the same offense as that for which the defendant has already been convicted. As was stated in the case of People v. Brain, 75 Cal. App. 109, 241 P. 913:

“In prosecution for robbery, plea of [former conviction and once in jeopardy, based on plea of guilty of burglary for house-breaking immediately preceding robbery charge, held not a valid plea in bar, as burglary was complete when felonious- entry into house was effected, and robbery was a second and later transaction.
“Where, under special pleas of former conviction and once in jeopardy, evidence submitted is unco-ntradicted that former conviction relied on was for different offense, question becomes one of law, and court may instruct jury that special pleas are not sustained.”

In People v. Conson, 72 Cal. App. 509, 237 P. 799, it was held:

“Where there is no dispute as to facts, whether accused has been formerly in jeopardy for same offense is question for court and not o!f fact for jury.”

In the case of State v. Brooks, 38 Okla. Cr. 302, 260 P. 785, this court held:

“Where a plea of former jeopardy is made which involves no- question of fact, but presents a question of law only, it is not necessary to submit such plea to the jury, but the court may act upon it as a question of law.”

To the same effect is the ease of Hartgraves v. State, 5 Okla. Cr. 266, 114 P. 343, 33 L. R. A., N. S., 568, Ann. Cas. 1921D, 180, where the lower court gave an instruction similar to the one given in this case, which was sustained on appeal by this court; also, the case oif Hazelwood v. State, 42 Okla. Cr. 38, 273 P. 1017.

The facts concerning these offenses, as introduced by the state, are undisputed. As heretofore outlined, we have held that the offense of forgery as defined in section 2137, O. S. 1931, 21 Okla. St. Ann. § 1590, supra, and the crime of embezzlement are separate and distinct offenses and may be charged separately, even though both offenses grow out of the same transaction. The court, therefore, was correct in instruction No. 9 given to the jury.

The defendant further contends that he was not given a fair trial, and urges as one of the grounds for this contention the refusal of the trial court to allow the defendant to be tried in his civilian clothes.

The record discloses that the defendant, through his attorney, made a request when his case was called for trial for permission of the court for the defendant to change clothes from those of the jail clothes with which prisoners in the county jail are garbed to those of his civilian clothes before appearing before the jury for trial. The court denied this request of the defendant.

We think this request of the defendant was reasonable and should have been granted. However apparent the guilt of the defendant might have been, he is still clothed with the presumption of innocence and is entitled upon his trial to wear his civilian clothes. There is no statement in the record as to just the kind of clothes the defendant was forced to wear. Neither- is there any statement in the record by the court as to his reason for refusing the apparently reasonable request of defendant’s counsel for permission to change to bis civilian clothes. Ordinarily, this action of the court would constitute ground for a reversal or modification of the judgment. But in this particular instance, it is undisputed that many thousands of dollars were taken by the defendant while he was a trusted employee of the postal association. The forged check herein involved was for $13,776. All of this money was a complete loss. No explanation of the theft or as to the whereabouts of the money was ever given by the defendant when questioned as to the loss. The jury could have given the maximum punishment of seven years; instead they gave only five years’ imprisonment. For this reason we do not think the fact that the defendant was tried in his jail clothes prejudiced him in the least before the jury; and for that reason the punishment imposed will not be modified.

The other contentions of the defendant are wholly without merit.

The judgment of the district court of Oklahoma county is accordingly affirmed.

DOYLE, P. J., and BAREFOOT, J., concur.


author: PER CURIAM.

text:
    INGERMORE ERVIN v. STATE.
    No. A-9741.
    Oct. 9, 1940.
    (106 P. 2d 279.)

      Joe Adwon and Jack Spivey, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Ingermore Ervin, Avas tried and convicted on an information charging that in Oklahoma county on the 16th day of September, 1937, he did have in his possession 16 pints p'f tax-paid liquor, Avith the unlawful intent to sell the same, the jury leaving his punishment to be assessed by the court. May 29, 1939, the court rendered judgment and sentenced the defendant to pay a fine of $50 and he confined in the county jail for 30 days.

Prom the judgment he appealed by filing in this court September 23, 1939, petition in error with case-made. The case was submitted on the record February 14, 1940.

No brief has been filed in support of the errors assigned. The court therefore assumes that the appeal has been abandoned or that counsel representing plaintiff in error has reached the conclusion there are no errors in the record sufficient to warrant a reversal.

It appearing the plaintiff in error has abandoned his appeal, the appeal is on the motion of the Attorney General dismissed for want of prosecution with directions to the court of common pleas of Oklahoma county to enforce the judgment and sentence.


text:
    GENE RICKMAN v. STATE.
    No. A-9673.
    Oct. 9, 1940.
    (106 P. 2d 280.)

      Smith & Walker, of Miami, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant Gene Rickman was charged, with one Adolph Burns, in the district court o'f Ottawa county with the alleged offense of burglary in the second degree; was tried, convicted and sentenced to serve a term of five years in the .State Penitentiary; and has appealed.

The criminal complaint against the defendant was filed on January 31, 1938, and reads as follows:

“In the Name and by the Authority of the State of Oklahoma: Now comes W. S. Goodwin and being duly sworn, on oath states that Adolph Burns and Gene Rick-man did, in Ottawa County, State of Oklahoma, on or about the 29th day of January, 1938, and prior to the making of this complaint, commit the crime of Burglary in the Second Degree, in the manner and form as follows, to wit:
“Said defendant then and there being did then and there willfully, unlawfully, wrongfully, burglariously and feloniously bréale and enter the- located at No. -Commerce Street, in the City of Commerce, Ottawa County, Oklahoma, said breaking and entering being in the nighttime and being gained by removing a plate glass window from the southwest side of the said store, in which said store was contained at said time of breaking and entering, personal property, belonging to the said A. B. Poteet Grocery store, Avith the willful, unlaAvful and felonious intent on the part of the said defendants to steal said personal property therein contained and to> permanently deprive the true owner thereof, contrary to' the statutes in such cases made and provided, and against the peace and dignity of the State of Oklahoma.
“Subscribed and sworn to before me this 31st day of January, 1938.
“John H. Venable, Sitting as an Examining Magistrate.”
“The within named defendants, Adolph Bums and Gene Rickman, having waived their right to a preliminary examination herein, I order that they be held to answer the same. And that they are hereby committed to- the Sheriff of Ottawa County, Oklahoma.
“And that they be admitted to bail in the sum of $1500.00 each, and committed to the Sheriff of the County otf Ottawa, State of Oklahoma, until said bail be given.
“John H. Venable, County Judge, sitting as an examining magistrate.”

On March 8, 1938', an information was filed in the district court of Ottawa county which reads as follows:

“In the Name and by Authority of the State of Oklahoma: Now comes William E. Poteet, the duly qualified and acting County Attorney, in and for Ottawa County, •State of Oklahoma, and gives the District Court of said County and State, to know and be informed that Adolph Burns and Gene Rickman did in said County and State on or about the 29th day of January, in the year of Our Lord, One Thousand, Nine Hundred and Thirty-eight, and anterior to the presentment hereof, commit the Crime of Burglary in the Second Degree in the manner and form as follows, to wit:
“Said defendants then and there being did then and there willfully, unlawfully, wrongfully, burglariously and feloniously break and enter the A. B. Poteet Grocery Store located at 419 Commerce Street in the City of Commerce, Ottawa County, Oklahoma, said breaking and entering being in the night time and being gained by removing a plate glass window from the Southwest side of the said store, in which said store was contained at said time of breaking and entering, personal property belonging to the said A. B. Poteet Grocery Store, with the willful, unlawful and felonious intent on the part of the said defendants to steal said personal property therein contained and to permanently deprive the true «owner thereof, contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the State of Oklahoma.”

Upon arraignment of the defendant on March 17, 1938, the defendant filed two motions to quash the information, which motions read as follows:

“And now come the defendants, and each of them, and move the court to quash, set aside and hold for naught the purported information herein filed against the defendants for the following reasons and upon the following grounds, to wit:
“1. Because said information is void in that the same does not charge the commission of a public offense.
“2. Because said information is insufficient in form and substance to charge the commission of a public offense against the laws of the State of Oklahoma.
“3. Because the court is without jurisdiction in the premises.
“Said defendants pray, therefore, that they, and each of them be discharged.”
“Come now the defendants, and each of them, and move the court to set aside and quash the information herein filed, and to dismiss the purported cause herein and to discharge said defendants for the following reasons, to wit:
“1. Because said defendants have had no preliminary hearing, as provided by law, upon a valid information.
“2. Because no proper charge has ever been lodged against said defendants, and said defendants were never charged with the commission of a public offense before a committing, or examining magistrate.
“3. Because the so-called ‘Complaint’ filed against said defendants, before the examining magistrate, was, and is, insufficient in law to charge the commission of a public offense and because said complaint did not, and does not, charge the commission of a public offense and did not confer jurisdiction of the subject matter upon and in said committing magistrate.”

The court properly treated one of these motions as a demurrer to the information, sustained the same, and gave the county attorney permission to file an amended information. The other motion to quash attacking the sufficiency of the preliminary complaint was overruled, and an exception allowed the defendant.

On March 19, 1938, an amended information was filed, the charging part of which reads as follows:

“Said defendants then and there being did then and there willfully, unlawfully, wrongfully, burglariously and feloniously break and enter a certain brick building located at 419 Commerce Street in the City of Commerce, Ottawa County, Oklahoma, in which said building is located the A. B. Poteet Grocery Store, said breaking and entering being in the nighttime, and being gained by removing a plate glass window, or a portion thereof, from the west side of the front of said building, in which said building was contained at the time of said breaking and entering, personal property belonging to W. S. Goodwin, with the willful, wrongful, unlawful and felonious intent on the part of the said defendants to take, steal and carry away said personal property therein contained and to permanently deprive the true owner thereof, and to convert the same to their own use and benefit contrary to the form of the statutes in such case made and provided' against the peace and dignity of the State of Oklahoma.”

After the filing of this amended information the defendant re-interposed his demurrer and motion to quash thereto, which were overruled and an exception was allowed to the defendants.

Later, and on the date the case was called for trial, the defendants objected to' the introduction of evidence for the reason that the date shown in the information stated an impossible offense for the reason that the information was filed on March 19, 1938, and recited that the offense was committed on March 29, 1938. When this defect was called to the court’s attention, he allowed the acting county attorney to< further amend the information by changing the date from March 29, 1938, to January 29, 1938, which was the date set forth in the preliminary complaint and in the original information filed in the district court.

After this amendment was made, the attorney for the defendant asked for a continuance of the cause, which the court overruled, and ordered the defendant to trial.

The defendant first contends that the court erred in denying a continuance when this amendment was made to the amended information. Section 2830, O. S. 1931, 22 Okla. St. Ann. § 304, provides, in substance, that a trial shall not be delayed by reason of an amendment to the information unless for good cause shown by affidavit. The defendant has not pointed out any place where this amendment has prejudiced him in any particular. The date is the same as that charged in the preliminary complaint and the original information. It was purely a clerical error in the preparation of the amended information that caused the insertion of the date of March 29, 1938. The insertion of this amendment did not affect the defense to the charge; and in the absence of any showing of prejudice, the defendant was not entitled to a continuance.

It is next contended that the court erred in overruling defendant’s motion to quash the information and in overruling his demurrer to the information as finally amended. In connection with his motion to' quash the amended information, the defendant calls the court’s attention to the fact that the preliminary complaint does not give a description of the building alleged to have been entered, and does not allege the name of the owner of the building, and was not sufficient to charge an offense, and, therefore, insufficient to confer jurisdiction upon the committing magistrate to bind the defendant over to the district court.

It is well settled in this jurisdiction that where the defendant waives the right to a preliminary examination, and no evidence is offered by the state, the charge in the information must be substantially the same as that stated in the complaint. However, it is not necessary that all the details and technical allegations required in an information should be stated in the complaint before the magistrate; it is sufficient that the judicial facts appear, including a statement in ordinary language of the acts or omissions constituting the offense intended to be charged. Wade v. State, 18 Okla. Cr. 592, 197 P. 180.

The averments in the original complaint must be sufficient to1 apprise the accused that he would be required to meet a charge of burglary in the second degree, since all that can be required of the preliminary complaint is that there shall be a statement containing the substantial facts of the offense intended to be charged in order that the defendant be informed of the nature and cause of the offense charged against him. Muldrow v. State, 16 Okla. Cr. 549, 185 P. 332.

It was held in Lewis v. State, 39 Okla. Cr. 119, 263 P. 473, that in filing such information, the county attorney may not substitute one offense for another, but the information may vary in charging circumstance, methods, or means, or in formal and nonessential matters of the crime; or, where the offense is divided into degrees, or where a higher offense includes a lower, he may file an information charging any of the degrees, or any included offense, so long as the offense charged in the information is the same as the offense for which accused was held.

As to the jurisdiction of the court, it is stated in Muldrow v. State, supra, the precedent fact that a preliminary examination has been had or waived constitutes the jurisdictional basis for a prosecution for a felony by information. It is the fact that there was a preliminary examination, or a waiver thereof, and a judicial determination thereon by an examining magistrate that the particular •offense charged has been committed, or that a felony other than that charged, as shown by the testimony upon the examination, has been committed, and stating generally the nature thereof, and that there is sufficient cause to believe the defendant guilty thereof, that authorized the county attorney to file an information in the district court charging the offense named in the preliminary complaint, when examination has been waived.

In Paul v. State, 41 Okla. Cr. 164, 272 P. 485, it is stated:

“Where a charge of felony is made before a committing magistrate and the accused waives a preliminary examination and is held for the action of the district court for the charge contained in the preliminary complaint, the county attorney is authorized to file an information charging the offense defined in the preliminary complaint. Under section 2512, Comp. Stat. 1921, 22 Okla. St. Ann. § 304, such information may be amended in the district court so1 long as the amended information charges substantially the same offense as that charged in the preliminary complaint.” Section 2830, O. S., 1931, 22 Okla. St. Ann. § 304. Johnson v. State, 21 Okla. Cr. 17, 204 P. 311.

We have heretofore held that:

“An indictment which charges a breaking and entering with intent to commit larceny is sufficient. It need not be alleged who owned the goods that were in the building, nor whose goods defendant intended to steal.” Wilson v. State, 50 Okla. Cr. 310, 297 P. 826, Hames v. State, 54 Okla. Cr. 341, 20 P. 2d 915.

The defendant cites the case of Simpson v. State, 5 Okla. Cr. 57, 113 P. 549, 550, wherein we held:

“The great weight of authority holds that an indictment for burglary, whether at common law or under statute, must allege every fact aud circumstance which is necessary to constitute the offense with sufficient certainty as to time, place, ownership, and description of the premises, to inform the accused of the particular crime of which he is charged.”

We think this case states the correct rule. The county attorney should have been more careful in the preparation of the preliminary complaint. It is defective; and were it not for the fact that the guilt of the defendant is so apparent, this court would not hesitate to reverse this cause and order all of the proceedings vacated, with the county attorney forced to> institute a preliminary complaint in conformity with the statutes and decisions of this court. The contention of the defendant, however, is wholly technical, and the defects complained of did not in any manner prejudicially affect the defendant. He knew from the information the exact building he was charged with having entered, and prepared his defense, which is as thorough as he possibly could have prepared the same, if the technical defects in the preliminary complaint had been corrected.

Early in the history of this court, the court adopted the doctrine of harmless error. In substance, this means that where a record, although disclosing many errors, shows that the proof is clear that the defendant was fairly tried and properly convicted and that the errors complained of are not prejudicial to his rights, the judgment of conviction will be affirmed. The record must show that the conviction was a miscarriage of justice. Offitt v. State, 5 Okla. Cr. 48, 113 P. 554; Ray v. State, 35 Okla. Cr. 322, 250 P. 438; Newman v. State, 35 Okla. Cr. 296, 250 P. 554; Brown v. State, 9 Okla. Cr. 382, 132 P. 359.

When the evidence in a case is clear as to the guilt of an appellant, and there is no reason to believe that upon a second trial an intelligent and honest jury can arrive at any other verdict than that of gnilt of the accused, the judgment of the lower court will not be set aside for anything less than fundamental errors. Dusty legal cobwebs should never be permitted to obscure justice. Carter v. State, 6 Okla. Cr. 232, 118 P. 264; Suitor v. State, 6 Okla. Cr. 305, 118 P. 412; Smith v. State, 6 Okla. Cr. 380, 118 P. 1003.

The defendant raises no question in his brief filed herein of the sufficiency of the evidence to sustain the conviction.

This court is not in sympathy with questions arising; on an appeal which are wholly technical in their nature. The defendant was seen by the night watchman about 2 o’clock, a. m., walking with another man alongside the building which had been burglarized. Eight radios had been taken from the store and piled behind the building in the alley. Evidently the defendant had not completed his job as he was coming alongside of the building when he was caught by the night watchman. He attempted to flee, but was caught. The other man who' was with him got away.

In the defendant’s car parked across the street from the store which was burglarized was found a screwdriver, a brace and bit, a hack saw, a keyhole saw, and a bar of soap, all apparently having been used in connection with the removal of the window pane from the store building which was burglarized.

The defendant had previously served a term of imprisonment in the State Penitentiary in the state of Kansas for the offense of robbery.

The defendant attempted to' explain his presence there at the Poteet Store in the middle of the night, but the jury did not believe his explanation; and it is apparent to us that no reasonable jury could fail to convict the defendant on this charge. He was charged in the information along with Adolph Burns. The two men were tried together, and the jury returned a verdict convicting both men. Later upon the hearing upon the motion for a new trial, the court granted a new trial to Bums; and the charge against him was later dismissed by the county attorney. A great part of the evidence in the case was directed at the defendant Adolph Burns in an attempt to connect him with the burglary. The admission of this evidence might possibly have prejudiced the jury in some manner against the defendant Gene Rickman. In view of the fact that the guilt of the defendant is clearly proven and that the best that he could possibly gain by reversal of this case would be to secure the minimum punishment for the offense charged, this court will not reverse the judgment of the lower court in connection with the technical errors heretofore pointed out, but believe that the ends of justice require a modification of the sentence imposed on the defendant.

It is, therefore, ordered that the sentence of the defendant be modified and reduced from a term of five years’ imprisonment in the State Penitentiary to a term of imprisonment of two years in the iState Penitentiary.

The judgment and sentence, as thus modified, is accordingly affirmed.

DOYLE, P. J., and BAREFOOT, J., concur.


author: DOYLE, P. J.

text:
    R. C. ROBINSON v. STATE.
    No. A-9841.
    Oct. 16, 1940.
    (106 P. 2d 531.)

      J. B. Dudley and Luther Bohanon, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, P. J.

The indictment in this case, duly presented and filed in the district court of Oklahoma county May 19? 1939, in substance charges that in said county on the 26th day of April, 1938, R. C. Robinson did then and there willfully, unlawfully and feloniously commit the crime of preparing, false evidence, by procuring from one Joe Creson an instrument in writing which is set forth in said indictment, with the willful, unlawful, and felonious intent to produce or allow to be produced as genuine, in the trial of case No. 97945 in the district court of said county on behalf of Roy Mirt, plaintiff, and against Joe Creson and the Western States Grocery Company, a corporation, defendants.

It appears from the record that upon arraignment the defendant entered a plea of not guilty. On February 19th the case was called for trial, leave granted to withdraw plea of not guilty for the purpose of filing a demurrer to the information, which demurrer was presented and sustained, and the court directed the county attorney to file a preliminary information within ten days.

The order sustaining the demurrer to the indictment, filed February 21, omitting formal parts, reads as follows:

“It is therefore considered, ordered, adjudged and decreed by the Court that said demurrer of the defendant to said indictment be and the same hereby is sustained; and it is further considered, ordered, adjudged and decreed by the Court that the County Attorney be and he hereby is directed to submit said cause to another Grand Jury or file a new information within ten (10) days from this date; the defendant to remain upon his present bond. The defendant, in open court excepts to the action of the Court in directing the resubmission of said cause to another Grand Jury or the filing of an information, and his exceptions are by the Court allowed.
“Geo. H. Giddings, Judge.”

On February 3rd, the defendant filed a motion to vacate and set aside the following portion of its order of February 19th:

“And it is further ordered, adjudged and decreed by the court that the county attorney be and he is hereby directed to submit said cause to another grand jury, or to file a new information within ten (10) days from this date, the defendant to remain upon his present bond.”

The court upon consideration of said motion and the argument of counsel, and being fully advised in the premises, finds said motion should be overruled. To which the defendant excepts. Exception allowed.

Thereupon the defendant gave notice of his intention to appeal from said order and served notice upon the court clerk and county attorney, and is given 30 days from this date, February 26, 1940, to make and serve a case-made, three days thereafter to suggest amendments, case to be signed and settled on three days’ notice in writing by either party. Which case-made was m March 20, 1940, signed and settled as a full, true and complete ease-made, and the court clerk directed to attest and file the same according to law.

Petition in error with case-made was filed in this court on April 10, 1940.

The appeal in a criminal case is from the judgment of conviction. There is no' statute authorizing, an appeal from an order directing that the case be submitted to the same or another grand jury, or that a new information be filed. Section 2952, Sts. 1931, 22 Okla. St. Ann. § 508. Davenport v. State, 20 Okla. Cr. 253, 202 P. 18.

An appeal is not a matter of inherent right. It is a right extended bo the defendant by the favor of the state.

The Code of Criminal Procedure provides :

“An appeal to the Criminal Court of Appeals may be taken by the defendant, as a matter of right from any judgment against him; and upon the appeal, any decision of the court, or intermediate order made in the progress of the case may be reviewed.” Section 3189, 22 Okla. St. Ann. § 1051.

The language of the statute is so plain that there is no room for construction. If it were otherwise, a new opportunity would be afforded to1 invite the law’s delay.

When the case was assigned for final submission, counsel for plaintiff in error filed the following motion:

“Comes now the plaintiff in error herein and hereby dismisses his appeal, at his costs, and requests the court to make an order of dismissal.”

For the reasons stated above, the motion to dismiss the appeal is sustained.

It is therefore considered, adjudged, and ordered that the appeal herein be dismissed and the cause remanded to the district court of Oklahoma county.

BAREFOOT and JONES, JJ., concur.


text:
    BUNNY HARJO v. STATE.
    No. A-9717.
    Oct. 16, 1940.
    (106 P. 2d 527.)
    B. L. Busey, of Holdenville, for defendant.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Roy P. Parham, Co. Atty., of Okemah, of Okfuskee County, for the State. .
   BAREFOOT, J.

Defendant, Bunny Harjo, was charged in Okfuskee county with the crime of driving an automobile while under the influence of intoxicating liquor. Upon his plea of guilty he was sentenced to serve a term of six months in the penitentiary, and he has appealed.

Defendant is a full-blood Creek Indian. He was charged by an information filed in Okfuskee county with the crime of driving an automobile while under the influence of intoxicating liquors, as follows:

“* * * a 1938 Model Pontiac Coupe, 1938 Oklahoma Tag No. 403-156, along a certain public highway, to wit: U. S. Highway No. 62, from a point on said highway where the same intersects North Fifth Street in the Town of Okemah, said county and state, to- a point on said highway between North Fifth Street and North Fourth Street in said Town of Okemah. * * *”

Defendant was a resident of Creek county, Okla., and he employed a firm of lawyers from Holdenville in Hughes county to represent him, and they employed local counsel in Okemah, Okfuskee county, where he was charged. The record reveals that the defendant and his counsel appeared before the district court of Okfuskee county at Okemah on the 16th day of January, 1939; that at that time two cases were pending against the defendant. The record before us does not reveal what the other charge was. It appears from the record that there was an agreement between the attorneys representing defendant and the county attorney that one of the cases against the defendant would be and was dismissed, and that he would enter a plea of guilty in the other case, and that the county attorney would recommend to the court a fine of $200 and costs in that case. The presiding judge at no time agreed to this, but the pronouncing of judgment and sentence was by the court postponed until January 30, 1939. The record does not show any minutes as of January 30,1939, but on February 4, 1939, counsel for defendant appeared and sentence was continued until February 18, 1939. On tbis date defendant did not appear in person, and bis bond was forfeited and a bench warrant was ordered issued. There is nothing in the record to show whether the ¡order forfeiting the bond was set aside by the court, but on the 4th day of March, 1939, defendant appeared in person before the court, but without an attorney and without an interpreter. He was at this time sentenced by the court to serve a term of six months in the penitentiary. On the 11th day of March, 1939, an attorney for defendant, who was not his attorney in the prior proceedings, filed an application on behalf of defendant asking that his plea of guilty be withdrawn and that he be permitted to enter a plea of not guilty. Evidence was taken upon this application, and that evidence appears in the record on file in this case. The application was by the court overruled, and it is this order from which defendant now appeals to this court, and' also from the judgment and sentence of six months in the penitentiary assessed against him by the court.

The defendant was placed upon the witness stand and testified through an interpreter that he was a full-blood Creek Indian; that he could not speak English with any degree of certainty; that he did not know how to transact any business and that he thought they turned him loose when they let him go home; that he did not know the difference between pleading guilty and not guilty; that he knew they fined him $200, but that his money was tied up by the Indian Department and the lawyer was going to get it and pay the fine, but he could not get it; that he did not have any money himself; that he went before the court at the time he was sentenced by himself and did not have any lawyer; that he did not have any interpreter; that he talked to the court, but he did not understand what he said. He was asked:

“Q. Are you guilty of driving while drunk as charged in this court? A. I am not guilty. I have witnesses to that effect, but when I came here they put me in jail and I haven’t had time tO' see my witnesses. Q. Do you want to be tried by a jury? A. Since you all want justice, I want justice myself, so I think that is the proper thing to do is for a jury trial.”

He was cross-examined by the county attorney and admitted talking to the court, but the cross-examination did not reveal any difference in his testimony. He said that he had been arrested at Shawnee for being drunk since he had been charged at Okemah, and that he paid a fine of $42.50; that he told the court this:

“Q. Do you remember telling him how much fine you paid over there? A. I remember telling him that. They had a charge against me over there for being drunk. I was waiting on a fellow and they picked me up and charged me with being drunk, and I went over and paid it. * * * Q. Don’t you know at that time after you plead guilty that your lawyer asked for an extension of time to sentence you and the sentence day was passed to another time. A. I don’t know the difference between pleading guilty and pleading not guilty; I don’t know the difference between that. Q. Didn’t your lawyers tell you at that time that the sentence day had been continued at their request? A. He told me about that, and I thought they were turning me loose. Q. Did they tell you in Creek or did they tell you in English? A. He didn’t just come out and tell me; he used the sign this way (indicating) that there wasn’t nothing; so I don’t know.”

Jacob Alexander testified that he was an interpreter for Bunny Harjo, and when asked:

“Q. Do you know whether or not he speaks English well enough to deal with people and courts and be fully aware of what is going on? A. Colloquially, I think he understands; but when it comes to1 real business dealings, he is absolutely ignorant; that is, relative to business transactions.”

This was all the evidence appearing in the record. The state did not offer any evidence. The court at the time of passing sentence upon defendant said:

“In this matter, if I Avere convinced that the defendant was in good faith in mating the statements that he has made here, and that he couldn’t understand English, I Avould gladly grant the application. But I am thoroughly convinced, after talking to him myself at the time he was sentenced and at the time he plead guilty, that he understood enough English, and I made it plain enough to him, that he distinctly understood what I meant. For that reason the application at this time is overruled.
“Mr. Busey: Exception. From which order the defendant gives notice in open court of his intention to appeal to the Criminal Court of Appeals.”

In an early case before this court, Polk v. State, 26 Okla. Cr. 283, 224 P. 194, 205, which was a capital case, and where the defendant was given a life sentence, Judge Doyle in an elaborate opinion fully discussed the question of a defendant being sentenced upon a plea of guilty and the right or duty of the court to set the same aside upon motion. It is unnecessary to quote from this opinion in full. Some of the facts in that ease are stronger than in the case at bar, but the reasoning is somewhat applicable to the facts here. In that case the court said:

“The general power of a court to reconsider its judgment and sentence, and reverse, vacate or modify it at any time during the term in which it was rendered, or to increase or diminish the sentence which it has imposed, where the original sentence has not been executed or put in operation, is undeniable. Bish. New. Cr. Proc. par. 1288, and cases cited. This power is inherent in all courts of record. Rupert v. State, 9 Okla. Cr. 226, 131 P. 713, 45 L. R. A. (N. S.) 60.
“It follows that it is within the discretion of the trial court to vacate a judgment of conviction rendered on a plea of guilty and to permit the plea to be withdrawn. Heath v. State, 23 Okla. Cr. [382], 214 P. 1091.
“We think this rule is in accord with the principles oí justice.

“In Swang v. State, 2 Cold. (Tenn.) 212, 88 Am. Dec. 593, it was held: .

“A ‘plea of guilty may be withdrawn, and new trial awarded on the affidavit of the defendant with corroborating proof that such plea and the submission of his case were made through fear and official misrepresentations, and in ignorance of his rights.’

“In State v. Olson, 115 Minn. 153, 131 N. W. 1084, it was held:

“ ‘An application to be permitted to withdraw a plea of guilty to a criminal charge after judgment of conviction thereon is addressed to the sound discretion of the trial court.’

“In Krolage v. People, 224 Ill. 456, 79 N. E. 570, 8 Ann. Cas. 235, it was held:

“ ‘The defendant in a criminal prosecution should be permitted to withdraw his plea of guilty when unadvisedly given, where any reasonable ground is offered for going to the jury; and while this is a matter within the discretion of the court, the discretion is a judicial one which should always be exercised in favor of innocence and liberty.’
“And see People v. Manriquez, 188 Cal. 602, 206 P. 63, 20 A. L. R. 1441, and cases collated, annotation p. 1447.

“To the same effect see State v. Maresca, 85 Conn. 509, 83 A. 635, wherein the court said:

“ ‘If the accused * * * pleaded guilty, without fully understanding the significance and effect of his answers, and of his plea of guilty, the judgment and sentence should, under the circumstances, have been opened and the accused permitted to withdraw his- plea of guilty.’
“In a criminal action a defendant has the right to plead guilty, and the effect of such a plea is to authorize a judgment Of conviction and imposition of punishment as prescribed by law. The plea should be freely and voluntarily made by one competent to know the consequences, and should not be induced by fear, persuasion, promises, or ignorance. In a certain sense pleas of guilty in criminal proceedings have been discouraged by the courts”

In that case evidence was put on by the state when the motion to set aside the judgment and sentence was presented, but in the instant case, no evidence was introduced by the state, and the only evidence is the evidence of the defendant.

Section 2961, Okla. Stats. 1931, Okla. St. Ann. title 22, § 517, provides:

“The court may, at any time before judgment, upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted.”

Under this section it has been held:

“A defendant in a criminal action should be permitted to withdraw his plea of guilty, given unadvisedly, either before or after judgment, where any reasonable ground is offered for going to the jury.” Fromcke v. State, 37 Okla. Cr. 421, 258 P. 927.

In the case of Sloan v. State, 54 Okla. Cr. 324, 20 P. 2d 917, the court says:

“The general rule of law as stated by numerous decisions of this and other courts is that an application to withdraw a plea of guilty is addressed to the sound discretion of the trial court; that the law favors the trial of criminal cases on the merits and where it reasonably appears a plea of guilty was influenced by persons in authority or apparent authority which has led a defendant to believe that by entering a. plea of guilty his punishment will be thereby mitigated he should be permitted to withdraw the plea of guilty and to enter a plea of not guilty and the refusal to permit him to do so is an abuse of discretion. Jenkins v. State, 6 Okla. Cr. 516, 120 P. 298; Polk v. State, 26 Okla. Cr. 283, 224 P. 194; Hart v. State, 29 Okla. Cr. 414, 233 P. 1095; Howington v. State, 30 Okla. Cr. 243, 235 P. 931; Cook v. State, 45 Okla. Cr. 69, 281 P. 819; Longenbaugh v. State, 47 Okla. Cr. 892, 288 P. 611; Kelley v. State, 48 Okla. Cr. 1, 288 P. 1001.”

The court also further says:

“A defendant will not be permitted to trifle with the court by deliberately and advisedly entering a plea of guilty and then, if dissatisfied with the sentence, capriciously withdrawing it; particularly is this so when he has counsel when the guilty plea is entered. An agreement for a plea of guilty made between a defendant and the prosecuting officer should be carefully scrutinized, and, where it reasonably appears that a defendant is laboring under a misapprehension at the time he enters his plea of guilty and makes such 'fact known in apt time, he should be permitted to withdraw his plea of guilty and to enter a plea of not guilty.”

See, also, Peterson v. State, 58 Okla. Cr. 391, 54 P. 2d 209; Porter v. State, 58 Okla. Cr. 54, 49 P. 2d 234.

Evidently the reason for the court’s not carrying out the recommendation of the county attorney and the agreement of counsel in the instant' case was, that the defendant had been arrested by the officers of Pottawatomie county for being drunk and had paid a fine of $42.50. This was after the charge had been filed against him in Okfuskee county. If he had been on trial, this evidence would not have been admissible against him.

The record does not disclose what the facts were with reference to the driving of the automobile by defendant while under the influence of intoxicating liquor. There is no allegation in the information that anyone was injured. We are of the opinion that justice will be done in this case by not reversing the same, but by modifying this judgment and sentence from six months in the penitentiary to a fine of $200 and costs. Defendant in his brief asks that this be done. This judgment and sentence carries with it, under the law, a mandatory canceling of the license of the defendant to drive a car for a period not to exceed one year. With this punishment inflicted we believe that justice will be better subserved than to require this full-blood Creek Indian, who was unfamiliar with court procedure, and who by his evidence did not know the difference between a plea of guilty and not guilty, to be sent to the penitentiary for a period of six months.

It is therefore ordered that the judgment and sentence of the district court of Okfuskee county be modified from six months in the penitentiary to a fine of $200 and costs, and, as so modified, is affirmed.

DOYLE, P. J., concurs. JONES, J., not participating.


text:
    Ex parte WILLIAM ROY WILLIAMS.
    No. A-9865.
    Oct. 16, 1940.
    (106 P. 2d 524.)

      Laynie W. Harrod, of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Co. Atty., and John F. Eberle, Asst. Co. Atty., both of Oklahoma City, for respondent.
   JONES, J.

The petitioner, William Roy Williams, has filed his petition for a writ of habeas corpus in this court, in which he alleges in substance that he is being held in the county jail of Oklahoma county pursuant to a judgment and sentence issued out of the district court of Oklahoma county in case No. 13057, wherein he was sentenced to serve a term of two years’ imprisonment in the State Penitentiary for the alleged offense of receiving stolen property. That the judgment and sentence is void, and the district court of Oklahoma county was without jurisdiction to try the petitioner or to sentence him upon said charge for the reason that the indictment upon which the petitioner ivas tried was returned by the grand jury of Oklahoma county and filed herein April 11, 1939, alleging that the crime was committed on December 26, 1939, which would be some eight months subsequent to the return of the indictment. That the indictment stated an impossible offense and is absolutely void, and all proceedings had upon said indictment are null and void, and that the court was without jurisdiction to sentence the petitioner to the penitentiary upon a verdict had upon a trial of said cause. A copy of the indictment is attached to the petition.

The county attorney in bis response alleges that tbe petitioner was charged by preliminary information, filed in tbe justice of tbe peace court of one Everet Crismore, in Oklahoma county, on March 14, 1939, in which said preliminary complaint the defendant was charged with the crime of receiving stolen property and fixing the date as on or about December 26, 1938; the said defendant was arraigned before the justice of the peace on March 14,1939, and bond was set in the sum of $500; that the defendant made bond on March 17, 1939, and was released from custody. That the grand jury was convened a short time later, and the files of said case were submitted to the grand jury, and an indictment was returned; that the language of the indictment, as returned by the grand jury, is the same as that attached to' the petition filed herein.

The response further alleges that the defendant, from the time of his first arrest and arraignment in the justice o'f the peace court, knew that he was charged with committing the crime on December 26, 1938.

The petitioner attached a transcript of all the proceedings had in connection with his arraignment and conviction in the district court of Oklahoma county. From an examination of that record, it appears that when this case was called for trial, the county attorney asked and was given permission by the court to amend the indictment by changing the date from 1939 to 1938 so that the indictment as amended alleges that the offense was committed on December 26, 1938, the same date as alleged in the preliminary information.

The amendment was made over the objection of the defendant who contended that the court was without power to change the indictment in any particular, and for any amendment to be effective the case would have to be resubmitted to the grand jury for their determination.

After the amendment was made, the cause proceeded to trial; defendant was found guilty, and sentenced to serve two years in the State Penitentiary.

The only question for determination of this court is whether the district court has the power and authority to amend an indictment to correct a purely clerical error in the nature of an impossible date which is inserted in the indictment.

The common-law rule, both in England and in this country, was that it was beyond the power of the court to make, order, or permit any amendment of any nature to an indictment. The strict rule of the common law against amendments was occasioned, it has been said, by the harshness of the punishment for relatively minor offenses and the humane tendencies of the court to fix on any flaw in the indictment to protect persons convicted of crime from such harshness. 87 Am. Jur. 675.

The common-law rule is set forth in the syllabus of the case of Ex parte Bain, 121 U. S. 1, 7 S. Ct. 781, 30 L. Ed. 849, as follows:

“When this indictment is filed with the court, no change can be made in the body of the instrument by order of the court, or by the prosecuting attorney, without a resubmission of the case to the grand jury. And the fact that the court may deem the change immaterial, as striking out of surplus words, makes no difference. The instrument, as thus changed, is no longer the indictment of the grand jury which presented it.

This was the doctrine of the English courts under the common law. It is the uniform ruling of the American courts, except where statutes prescribe a different rule. * * #*??

Most of tbe states have by statute provided that the courts may make amendments to the indictment where the amendments are in matters of form or to correct mere irregularities and do not go to> matters of substance.

In Oklahoma it is provided by statute, section 2892, O. S. 1931, 22 Okla. St. Ann. § 410, as follows:

“No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

This statute was copied from the laws of the Territory of Dakota and has been a part of our law since its adoption by the Oklahoma Territorial Legislature in 1890.

This statute was construed in the early case of Smith v. Territory of Oklahoma, 14 Okla. 162, 77 P. 187, where it was held: ¡

“Where an indictment is sufficient in all other respects, a mere clerical error or mistake in the spelling or use of a word does not render the indictment invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right.”

Most of the prosecutions for crimes in Oklahoma are through informations filed by the county attorneys. This court has been very liberal in the allowance of amendments to be made to informations, either before or after the trial commences. Section 2830, O. S. 1931, 22 Okla. St. Ann. § 304, makes provision for such procedure.

The identical question now presented has never been before this court for determination and is ¡one of first impression.

Neither the petitioner nor the state have briefed this case, nor have they presented any authority to sustain either of their positions.

In the case of State v. Brooks, 85 Iowa, 366, 52 N. W. 240, 241, the court held that under a provision of their Code, which provides that on appeal the court must, without regard to' technical errors not affecting substantial rights, render judgment, where, by a clerical error, an indictment charging defendant with larceny on a day in 1890, which was an impossible date, being at a time subsequent to the presentment of the indictment, that the conviction would not be disturbed for allowing an amendment after plea by placing the date in 1888. In the body of the opinion the court said:

“This being a mere clerical error, apparent upon the face of the indictment, the defendant was not prejudiced by allowing the correction.”

In those states having statutes similar to ours, it has been held that the court may authorize the correction of an impossible date in an indictment at any time. For an annotation of the authorities sustaining this view, see 7 A. L. R. 1531.

In the case of Star v. State, 9 Okla. Cr. 210, 131 P. 542, 543, the question arose as to an alleged defect in the indictment concerning the omission in the indictment of the year in which the offense was alleged to have been committed. The court cited the statute hereinabove set forth, section 2892, O. S. 1931, 22 Okla. St. Ann. § 410, as sufficient authority to uphold the indictment.

In the body of the opinion, the following language was used:

“The contention of counsel for appellant is that time and place should not merely be mentioned at the beginning of the indictment, but should be repeated at each issuable and triable fact. They cite a number of authorities sustaining this contention. There can be no question but that this was the ancient rule, but the conditions which brought this rule into existence have long since passed away and ceased to exist. Originally defendants were not allowed to be represented by counsel or to testify in their own behalf. Neither were they allowed bo summon witnesses and place them upon the stand for the purpose of explaining or contradicting testimony for the prosecution. It was deemed derogatory to the crown to permit the witnesses in its behalf to be contradicted. The injustice of these laws was so manifest that the trial judges, in order to mitigate the hardships of the law, invented and built up an artificial technical system for the protection of men charged Avith crime, who otherwise would be at the mercy of the prosecution. But this condition, as before stated, no longer exists, and the technical system which was built up solely for the purpose of mitigating the rigors of the laAv should also cease to exist. Even if this did not result from common sense and justice; our statute in express terms repeals the artificial rules of pleading established by the common law.”

We come then to the determination of the question as to whether the amendment was of a mere formal nature or one of substance which materially prejudiced the substantial rights of the defendant. It is conceded that the defendant was charged with this identical offense by preliminary complaint at which the exact date was shown. The insertion of the impossible date was merely a typographical error by the stenographer who prepared the indictment. The defendant knew all of the time, from the date of the preliminary complaint to' the date of the beginning of the trial, that he was being charged with the offense of receiving certain personal property therein named, which belonged to one Otis Fall, on December 26, 1938.

It is apparent that the amendment occasioned no surprise to the defendant, and cannot be said to have prejudiced his substantial rights. However, the question as to whether a certain action by the court in the trial of a case is prejudicial to' the substantial rights of a defendant cannot be determined in a habeas corpus proceeding.

This court in a habeas corpus proceeding will only go into the question as to whether or not the court had jurisdiction to render the particular judgment which was rendered.

Habeas corpus cannot be substituted for an appeal; and in order for the writ to be granted, the alleged illegality or irregularity must be sufficient to render the proceedings absolutely void.

In view of the statute above quoted and in consideration of the authorities herein above cited, we hold that the court did have jurisdiction to correct an impossible date in the nature of a clerical defect in the indictment, where time is not an essential ingredient of the offense charged; and the petition for a writ of habeas corpus will accordingly be denied.

It is so ordered.

DOYLE, P. J., and BAREFOOT, J., concur.


author: PEE- CUEIAM.

text:
    SAM MARRS v. HOEL.
    No. A-9946.
    Oct. 23. 1940.
    (106 P. 2d 846.)
    J. M. Springer, of Stillwater, for petitioner.

      Henry W. Hoel, of Stillwater, in pro. per.
   PEE- CUEIAM.

Now, on this tbe 22nd day of October, 1930, came on to be beard tbe application of tbe petitioner for a peremptory writ of mandamus; and' thereupon, tbe petitioner appears by J. M. Springer, bis attorney, and respondent appears not, neither in person nor by attorney, but having heretofore on the 16th day of October, 1940, filed bis written verified response; and thereupon petitioner introduces bis evidence and rests; and thereupon tbe case was duly argued to the court, and tbe court after having beard tbe evidence and argument of counsel, and after examining the pleadings and proceedings in this case, and being fully advised in tbe premises, finds: That tbe plaintiff filed his petition for writ of mandamus on tbe 12th day of October, 1940, and tbis court issued an alternative writ making tbe same returnable on tbe 16th day of October, 1940, and tbe defendant has filed in this court bis response and return to the writ, and bearing was continued until tbis day; and1 tbe court, after hearing the argument of counsel, and after examining tbe pleadings and tbe proceedings herein, finds that tbe writ of mandamus as prayed for should issue directing the respondent to certify to tbe Supreme Court bis disqualification in tbe two cases mentioned and described in tbe writ, wherein the petitioner in tbis action stands charged in one case with larceny of domestic animals, and in the other case with tbe crime against nature, both of said cases pending in tbe district court of Payne county, Okla.

Now, therefore, you tbe said Henry W. Hoel, respondent above named, are hereby directed to immediately upon the sendee of tbis writ certify your disqualification to tbe Chief Justice of tbe Supreme Court of tbe State of Oklahoma in said cases, and in tbe meantime you are restrained from making any order or assuming any jurisdiction whatsoever in said cases, or doing anything therein except to certify your disqualification.