text:
    ANDREW McDONALD v. STATE.
    No. A-9080.
    April 30, 1937.
    (67 Pac. [2d] 806.)

      E. O. Clark, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Wm. S. Hall, Jr., Co. Atty., for the State.
   BAREFOOT, J.

The defendant was charged, by information, with the crime of assault with intent to rape, and was convicted and sentenced to- serve a term of one year and one day in the penitentiary.

It is contended by the defendant that the evidence is insufficient to warrant a conviction, and we think this is the only error that need be considered.

The record reveals that defendant was 72 years of age; that he was charged with assault with intent to commit rape on a small girl 14 years of age. He came to the home of the prosecutrix during the month of April, 1935; he lived with the family on the farm and, by reason of the blindness of the father, he did most of the work toward raising a crop that year'. He was treated as one of the family and remained at home with the children when the mother and father were away. The mother testified that he had always, prior to the time this charge was brought against him, conducted himself in a proper way, and she had the utmost confidence in him. On Sunday, August 4, 1935, the mother and father accompanied one of their children and his wife to visit another child at Eufaula, leaving the defendant, a son who was old enough to he selected for service in the CCC camp, the prosecutrix, age 14 years, and her sister Betty Jane, age 7 years, at home. It is claimed that the assault was committed on Sunday, August 4th. On this night the son Tommy had gone to church, but returned later in the night. The prosecutrix and her sister had gone to bed in the same bed, and, as she states, she had been asleep when she was awakened and saw the defendant, and he had his hands on her and asked her to come to- his bed, “and let him do that to her.” She refused, and she says he tried to get on her, but did not do so. At the preliminary trial she did not testify to- this. Her testimony in reference to details was quite contradictory and conflicting. During the time that all of this was happening, her sister Betty Jane was asleep- in the same bed with her and at no time was awakened. She made no outcry sufficient to awaken her sister. She did not tell her brother upon his return what had happened, nor did she tell him the next morning. ,She did not tell her mother when she returned from Eufaula on the following Wednesday. The first person she told was her sister-in-law, between the following Wednesday and Saturday. She also claims to have told one of the neighbor girls some time later. Her 11-year-old sister, Christine, whom she said had heard and saw the defendant make indecent remarks to her at one time, was not placed on the witness stand. The mother did not hear about it until told by her son after his return from visiting the sister-in-law in Eufaula. She at this time confronted the defendant and he immediately denied it. The only attempt to corroborate the testimony of the prosecutrix was the evidence of two small neighbor, girls, ages 14 and 10. The girl 14 testified to- the defendant having upon one occasion, about three or four months prior to the time he was charged in the information, and on Decoration Day, with having put his arms around her and on her breast. This happened at the home of the prosecuting witness, where he was staying, and at a time when five little girls were in the same room and her mother and the mother of the prosecutrix were in an adjoining-room. She at no time mentioned to her mother or the mother of the prosecutrix what the defendant had done to her. The other little girl, age 10, testified that later the same day the defendant offered her and the prosecu-trix a nickle if they would pull up their dresses and show it to him. This happened in the berry patch where they were picking berries. They refused, and left the defendant, and came back to the house, but did not at any time mention to anyone what had happened.

The defendant, testifying in his own behalf, denied all of the statements made by the prosecutrix and the neighbor girls. He claimed that he came to> work for the father of the prosecutrix, who was nearly blind, in April; that he put in a crop and worked the same; that the high waters, washed almost all of it away; that in September he was getting ready to leave and go back to Arkansas to live with some relatives; that he informed Mr. and Mrs. Stafford that he was going to leave and asked them to pay him the balance owing him for the work that he had done; that they told him they did not have any money; and soon after that this charge was filed against him; the complaint being filed on the 15th day of August, 1935.

Prior to his coming to work at the home of Mr. Stafford, the defendant had lived in Arkansas, Oklahoma, and California. He produced witnesses who had known him at these different places and they all testified to his good character and reputation. The evidence showed he attended church and often accompanied the prosecutrix and her sisters to cburcb. The mother of prosecutrix testified to bis good reputation and character prior to this charge, and said that the family had the utmost confidence in him. It is almost inconceivable that an old man 72 years of age would attempt to harm a small child with whom he had been associated as the record in this case shows. He tells of many times when he had corrected her, and the other girls who testified against him, for using language that they should not use. The record shows that he had always treated them as one of his own children.

It has been the general policy of this court not to set aside the verdict of the jury where there is any evidence to sustain it, but, in cases of this character, it is the policy, not only of this court, but of all courts, to weigh carefully the evidence that an injustice may not be done those charged with an offense such as this. As has often been quoted by the courts, Lord Hale says: “It must be remembered that this is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though ever so innocent.” Lawyers who have had long experience in the trial of cases in the courthouse know how true this statement is.

Judge Doyle, speaking for this court, in the case of Morris v. State, 9 Okla. Cr. 241, 252, 131 Pac. 731, 735, has laid down the rule which has been followed in many cases decided by this court.

“Finally it is contended that the evidence is insufficient to justify or sustain the verdict in that there is no corroborating evidence nor a single corroborating circumstance tending to connect the defendant with the commission of the crime. This court does not hold with some that, as a matter of law, rape cannot be established by the uncorroborated testimony of the prosecutrix, but in common with all courts recognizes that, without such corroboration, her testimony must be clear and convincing. And, where the testimony of the prosecutrix bears upon its face inherent evidence of improbability, there should be corroboration by other evidence, connecting the defendant with the commission of the crime. The law is that the life or liberty of a citizen shall be taken only in case the right to do so is established beyond all reasonable doubt; and while there is no rule of law which forbids a jury to convict of rape on the uncorroborated testimony of the prosecutrix, provided they are satisfied beyond a reasonable doubt of the truth of her testimony, yet the courts have always recognized the danger of conviction on her uncorroborated testimony, and the testimony of the prosecutrix, if inherently improbable and uncorroborated, will not justify or support a conviction; as the only reasonable conclusion in such cases is that such verdicts are the result of passion or prejudice, and therefore contrary to law. The testimony of the prose-cutrix that the encestuous relations continued for nearly five years without being detected or discovered by her grandmother or her sister, one or both being present in the room at all times, is incredible. The evidence shows an intense enmity existing for many years between her father and her mother, and it is significant that she had been with her mother more than a month before she changed her former statements by making this unsupported charge against her father. And there is no claim of threats or fear in explanation of her delay in making this statement. The opportunity was ample, and it seems far more probable that some of the young men that the evidence shows frequented her home was the father of her child; and when we consider the testimony of the prose-cutrix as a whole with its contradictions and inconsistencies, and that the facts and circumstances in evidence all tend to discredit her, and consider that the evidence of the defendant’s character for virtue and morality, and that he constantly during these years attended church and Sunday school with his two daughters, is uncontra-dicted, we cannot help but think that the testimony of tbe prosecutrix was maliciously inspired and that tbe verdict was more tbe result of prejudice or public sentiment than tbe calm and dispassionate conclusion of tbe jury upon tbe facts in evidence.” See, also, Ferbrache v. State, 21 Okla. Cr. 256, 206 Pac. 617; Allen v. State, 10 Okla. Cr. 55, 134 Pac. 91; Palmer v. State, 7 Okla. Cr. 557, 124 Pac. 928; Douglas v. State, 19 Okla. Cr. 257, 199 Pac. 927; Dawes v. State, 34 Okla. Cr. 225, 246 Pac. 482.

We bave read and reread this record and bave come to tbe conclusion that tbe defendant should not be sent to tbe penitentiary upon tbe evidence introduced in this case. Tbe evidence of tbe prosecuting witness is not only conflicting and contradictory, but it is entirely uncorroborated as to tbe important event in this charge. Tbe first person whom she told was her sister-in-law, quite some time afterwards, and tbe record reveals that this was not done until her sister-in-law made suggestions to her such as: “Say, Cricket, has that old man ever played around you?”, and “I’ll bet be would do anything to you.” Then it was she told her. She afterwards claimed to bave told one of tbe neighbor girls, and when asked bow she told her, she used tbe exact language she claimed her sister-in-law bad used by saying: “I bet that old man would do- anything to you.” This was a very close case, and during tbe trial, and while tbe defendant was on. tbe witness stand, and after tbe county attorney bad completed bis cross-examination, tbe court took up tbe examination of tbe defendant and asked him a number of questions. While we think tbe court has a. right to examine tbe defendant, yet in a case of this nature it is very easy for tbe jury to come to- the conclusion that tbe court thinks tbe defendant guilty, and therefore tbe court should be very careful to not so- express himself in tbe presence of tbe jury in any way that would give them an opportunity to believe be was interested in either a conviction or acquit-tal. The record in this case shows that the trial court was very careful of the rights of the defendant and his instructions showed careful preparation, and fully protected the rights of the defendant.

The defendant was an old man 72 years of age. He had always treated the children, including the prosecutrix, in a kindly, fatherly manner, as testified to by the mother of the prosecutrix. He had corrected them when he thought proper. He had attended Sunday school and church with them, and the evidence shows that he had a splendid character and reputation in all the different communities in which he had lived. This charge had not been made against him until he was about to leave and go back to his old home in Arkansas to reside with his near relatives for the balance of his days, and after he had requested that he be paid a small sum for his services through the summer months..

We are aware of the horror and detestation with which all good men look upon the crime of rape, and especially an assault upon a girl of 14 years of age, and we think this had more to do with the conviction of defendant than the testimony in the record.

For the reasons above indicated, we are of the opinion that the judgment and sentence imposed in this case should be reversed, and it is so ordered.

DAVENPORT, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    BILL RADCLIFF v. STATE.
    No.A-9253.
    April 30, 1937.
    (67 Pac. [2d] 809.)

      Joe Ad won and J. L. Gowdy, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

The information in this case filed in the court of common pleas of Oklahoma county, April 16,1936, charges that Bill Radcliff in said county on the 14th day of April, 1936, did unlawfully have in his possession and under his control one complete still, which when set up was capable of being used in the manufacture of whisky; said still was not registered by said defendant as required by law, and said possession was with the unlawful purpose of using the same in the manufacture of whisky.

On the trial the jury returned a verdict finding the defendant guilty of illegal possession of a whisky still as charged in the information, and that they were unable to agree on the punishment.

Motion for new trial was duly filed and overruled. September 25, 1936, the court rendered judgment and sentenced the defendant to imprisonment in the county jail for 60 days and to pay a fine of $50 and the costs. From the judgment he appeals.

The testimony of three deputy sheriffs was, in substance, to the effect that in executing a search warrant on the premises three miles south of Wright Station and about 375 yards northwest of the house where the defendant lived, they found in a cave or dug-out a 50-gallon oil barrel still, a copper coil and several copper pipes, several empty mash barrels, three or four buckets^ and some empty fruit jars; that the still when set up could be used to' manufacture whisky. It appears they destroyed the still, the copper coils, and pipes, and arrested the defendant ; that in the car on their way back to the city the defendant said that it was his still and that he had been making whisky there for four or five months.

On the part of the defense, J. R. Radcliff testified that the defendant was his son; that he had rented the place and they had lived there about two months; that he was away and had returned to' the place just after the officers left; that he had seen an old oil drum in the canyon northwest of the house off and on for three or four years.

As a witness in his own behalf, Bill Radcliff testified that he had lived in that neighborhood three or four years and had been living on the place about two months; had often seen the oil drum in a canyon about a quarter northwest of the house; that he never did see the mash barrels, the copper coil and pipes, and other stuff that the officers found; that he never1 did manufacture whisky; and denied that he had told the officers that for four or five months he had been making whisky out there.

At the close of the case for the state the defendant demurred to the evidence and moved the court to instruct the jury to find the defendant not guilty, and again at the close of all the evidence the defendant moved the court to instruct the jury to' return a verdict of not guilty, for the reason that the evidence is insufficient to' warrant a conviction. Motions overruled. Exceptions.

The assignment that the information fails to state facts sufficient to constitute a public offense is not wéll taken. The demurrer to the information was properly overruled.

The only other question presented by this appeal is the sufficiency of the evidence to support the verdict.

It is urged that the verdict of the jury is contrary to law and the evidence, in that, “The evidence was insufficient to establish that the oil drum was capable of being' used for the manufacture of intoxicating liquor.”Citing Batson v. State, 43 Okla. Cr. 298, 278 Pac. 359.

We do not agree with counsel’s contention. The credibility of the witnesses and the weight and value to be given their testimony was a question solely for the jury’s determination, and, to reverse a judgment on the ground that the verdict is contrary to- law and the evidence, this court must find as a matter of law that the evidence is insufficient to warrant a conviction.

It is obvious that the case was one for the consideration of the jury. The motions for a. directed verdict of acquittal were properly denied. The trial was in all respects fair, and we are unable, after a careful examination, to find anything in the record sufficient to create a doubt as to the correctness of the result, or warrant us in interfering with the verdict.

It follows that the judgment of the lower court should be affirmed, and it is so ordered.

DAVENPORT, P. J., and BAREFOOT, J., concur.


text:
    GEORGE LEARY v. STATE.
    No. A-9159.
    April 30, 1937.
    (67 Pac. [2d] 972.)
    Meacham, Meacham & Meacham, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

In the information in this case filed in the county court of Custer county, February 15,1936, Jack Russell and George Leary were charged with unlawfully transporting intoxicating liquor “from the town of Butler to a place on the road about one mile north of the town of Butler.”' On the trial the jury returned a verdict finding the defendants guilty as charged in the information and fixing tbe punishment of each at confinement in the county jail for 30 days and a fine of $50.

To reverse the judgment rendered on the verdict against him, the defendant George Leary appeals and assigns as error that the trial court erred in admitting incompetent evidence, illegally obtained by search and seizure without a search warrant, and in refusing to strike such evidence, and in overruling the defendant’s demurrer to the evidence and motion for a directed verdict of not guilty.

The undisputed facts are that Garnett Simpson, sheriff of Custer county, drove out to the town of Butler, there picked up Bill Evans, a town officer, and while driving down Main street they passed the defendants, Jack Russell and George Leary, in a two-door Chevrolet coach, driven by Russell. Sheriff Simpson testified that he had a strong suspicion that the defendants had whisky in the car, so he followed them out of town, and, after going about half a. mile, caught up with them and told them to stop. Then the defendants speeded up, after going another half mile he overtook them again and drove his car against the front end of their car, forcing it into the ditch; that the defendant Leary reached over the back of the seat and took two jars of whisky from under a blanket and broke them; that he did not have a warrant for the arrest of either of the defendants.

After hearing, the testimony, the court overruled the motion to suppress the evidence. Exception reserved.

The only witness called by the state was Sheriff Simpson. His testimony was substantially the same as that given by him upon the hearing on the motion to suppress the evidence.

George Leary, as a witness in bis own bebalf, testified that Sheriff Simpson ran. into their car and, after they stopped, Jack Russell told him to break the jars, and he reached over and struck two> half-gallon jars together and broke them; that Bill Evans was in the car when he broke the jars.

At the close of the evidence for the state the defendant moved to strike the same and demurred thereto-. Which were overruled. Then moved the court to direct the jury to return a verdict of not guilty, for the reason that the state’s evidence was obtained by an unlawful and unreasonable search and seizure. Motion overruled. Exceptions reserved.

It is urged that the arrest of the defendants and the search of their persons and of the car was without sufficient warrant in law, and therefore unreasonable, and evidence obtained in this way is inadmissible.

The constitutional provisions relied upon by appellant are as follows:

“No- person shall be compelled to- give evidence which will tend to incriminate him, except as in this Constitution specifically provided.” Const. art. 2, § 21.
“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated.” Const. art. 2, § 30.

These constitutional provisions were under consideration in the case of Keith v. State, 30 Okla. Cr. 168, 235 P. 631, 632. In the opinion it is said:

“The offense charged against the defendant is punishable only by a fine and imprisonment in the county jail, and therefore is not a felony under our statute. Section 1503 [section 1766, St. 1931 (21 Okla. St. Ann. § 5)]. Consequently the officers could not lawfully arrest him therefor without a warrant, unless the offense was committed or attempted in their presence.”

It has been repeatedly held by this court that, where the offense is not a felony, an officer cannot arrest without a warrant unless the offense was committed or attempted in his presence, and that, where the officer does not know of the act constituting, the offense, it is not committed in his presence. Wallace v. State, 49 Okla. Cr. 281, 294 Pac. 198; Coffey v. State, 38 Okla. Cr. 91, 258 Pac. 923; Whitford v. State, 35 Okla. Cr. 22, 247 Pac. 424; Graham v. State, 31 Okla. Cr. 125, 237 Pac. 462.

In the case of Childress v. State, 31 Okla. Cr. 208, 238 Pac. 218, 219, we said:

“It is too familiar to require citation of authority that it is the settled doctrine in this state that, in order to make an arrest and seizure without a warrant under section 7014, C. S. 1921 [section 2640, St. 1931 (37 Okla. St. Ann. § 89)], there must be a violation of the prohibitory liquor laws committed in the presence of the arresting officer, and a conviction must be reversed where evidence procured by an officer of the court by means of an unauthorized search and seizure is admitted over the objections of the defendant.”

The fact that the defendants were transporting intoxicating liquor not being discoverable without a search, the offense of transporting it was not committed in the presence of the officers, and they had no authority to arrest the defendants therefor without a warrant.

The admitted acts of the officers show that they acted without authority of law, no search warrant having been issued; and the unlawful arrest and the search and seizure was for the sole purpose of obtaining evidence to. be used in the prosecution of the defendants.

For the reasons stated, we are of opinion that the evidence objected to in this case was obtained by the officers without warrant of law, and the admission of the same constitutes a violation of the constitutional and statutory rights of the defendant.

Therefore the judgment of the lower court is reversed and the cause remanded, with direction to discharge the defendant.

DAVENPORT, P. J., and BAREFOOT, J. concur.


author: PER CURIAM.

text:
    Ex parte HAZEL FLIPPO.
    No. A-9308.
    April 30, 1937.
    (67 Pac. [2d] 976.)
    C. F. G-owdy, for petitioner.
    Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

This is an original petition wherein the petitioner, Hazel Flippo, alleges that she is restrained of her liberty, and is unlawfully imprisoned in the county jail of Tulsa county, Okla., by A. Garland Marrs, sheriff of said county.

“That the cause of said restraint according to the best of her knowledge and belief is an order of the Judge of the Court of Common Pleas of Tulsa County called ‘Commitment for Punishment’ issued in case No. 31870 on the 14th day of April, 1937, copy of said purported commitment hereto attached, marked Exhibit ‘A,’ and made a part of this petition the same as if written herein in full; that your petitioner was the prosecuting, witness against her husband, the defendant in said case No. 31870, a felony charge of abandonment; that she had been misinformed as to his alleged abandonment and at the preliminary hearing could not give evidence in support of the charge whereupon the court ordered her to jail for failure to pay the costs which he ordered taxed against her.”

The purported commitment, a certified copy of which is attached to the petition, is as follows:

“Commitment for Punishment “State of Oklahoma v. Hazel Flippo, Prosecuting Witness.
“No. 31870.
“Order of Commitment “State of Oklahoma, County of Tulsa — ss.
“To the Sheriff of Tulsa County, Oklahoma, or any other officer authorized to serve process:
“Greeting:
“Whereas, on the 14th day of April, 1937, Hazel Flip-po the above named defendant was brought before the undersigned Judge of the court of common pleas on a charge of to pay costs and after an impartial trial was found guilty as charged and as punishment therefor it was ordered that said defendant pay to the state of Oklahoma a fine of $-; that he be confined in the Tulsa county jail for a term of until costs is paid days and that he be adjudged to pay the costs of this action, adjudged at |-. You are therefore commanded to receive the said defendant into your custody and confine him in the jail of Tulsa county for days and until such fine and costs are paid and if he fail to pay said fine and costs then for an additional term of one day for each dollar of the fine and costs aforesaid, viz., for days.
“You will make due return on this writ with your doings endorsed thereon.
“Dated at Tulsa, Oklahoma, this 14th day of April, 1937.
“Grady S. Cornett,
“Judge of the Court of Common Pleas.” •
Indorsed on Back:
“Criminal No. - Commitment for Punishment
“Court of Common Pleas, Tulsa County, Oklahoma.
“State of Oklahoma, rs. --
“Issued-193—
“Term to be confined-days.
“Pine --
“Costs-|-■-
“Executed the within writ 4-14-1937.
“A. Garland Marrs, Sheriff, Ed Erwin, Jailor.
“I hereby certify the within to be a true copy of the original writ with all the endorsements thereon.
“A. Garland Marrs, Sheriff,
“Tulsa County, Oklahoma
“By Lane Poe, Deputy.”’

The commitment is void for uncertainty. No one could read this commitment and tell what amount of costs had been taxed against the petitioner or why it was taxed, if taxed at all. The commitment is practically a blank.

If the allegations in the petition are true, A. Garland; Marrs, sheriff of Tulsa county, illegally and unlawfully holds the petitioner. No response has been filed by the sheriff, but the commitment herein set forth is certified by the sheriff as being correct.

It appears from the statement in petitioner’s petition that she was a witness in No. 31870, a felony charge of abandonment, and in the taking of the testimony she could not give evidence to support tbe charge of abandonment, whereupon the court ordered her to' jail for failure to pay the costs which he ordered taxed against her.

We have searched in vain to find any statute giving the court authority to' commit a witness to jail until costs, as stated in the commitment, are paid. Section 2805, O. S. 1931 (22 Okla. St. Ann. §263), is as follows:

“If the defendant on a preliminary examination for a public offense be discharged as provided in the last section and if the magistrate find that the prosecution was malicious and without probable cause, he shall enter such judgment on his docket and tax the costs against the complaining witness which shall be enforced as judgments for costs in criminal cases, and execution may issue therefor.”

The purported commitment fails to show what the action of the court was as to whether or not he entered a judgment against the petitioner, Hazel Flippo, for a certain amount of costs and ordered her committed until the costs were paid. If the court entered such an order, it would be void and in violation of article 2, section 13, of the Bill of Bights of Oklahoma Constitution, which provides :

“See. 13. Imprisonment for debt is prohibited, except for the nonpayment of fines and penalties imposed for the violation of law.”

Considering the facts we are of the opinion that the commitment upon which the petitioner was held by the sheriff of Tulsa county is void for uncertainty, and that the court had no authority under the Constitution and laws of Oklahoma to commit the petitioner to jail for nonpayment of costs in a felony case.

In Ex parte Davis, 124 Okla. 241, 255 Pac. 154, in the third paragraph of the syllabus, the Supreme Court held:

“Where one is imprisoned under a void commitment, this court will afford relief by habeas corpus.”

Writ awarded, and petitioner ordered discharged.


author: DAVENPORT, P. J.

text:
    CHARLES J. LIDDELL v. STATE.
    No. A-9164.
    April 30, 1937.
    (68 Pac. [2d] 432.)
    P. L. Gassoway and Hal Johnson, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for tbe State.
   DAVENPORT, P. J.

Tbe plaintiff in error was by information charged with tbe crime of embezzlement of funds belonging to Pottawatomie county, Oída.; was tried, convicted, and sentenced to imprisonment in tbe state penitentiary for eight years and to pay a fine of $2,500. Motion for new trial was filed, considered, overruled, and tbe defendant by petition in error with case-made attached has appealed to this court.

Tbe testimony on behalf of the state in substance is that tbe defendant, Chas. J. Liddell, was appointed delinquent personal tax collector for Pottawatomie county, by tbe county commissioners, March, 1931, and continued as such delinquent tax collector until January, 1935, at which time the defendant submitted his resignation.

The testimony shows that as delinquent personal tax collector it was the duty of the defendant to collect the delinquent personal taxes, and to turn the money collected to the county treasurer. The defendant would then file with the county commissioners a claim for his commission for collecting the amount he turned in to the county treasurer, which he was entitled to under the law and his contract with the county commissioners, and, if the claim was correct, the county commissioners would allow the claim and order it paid.

The testimony on behalf of the state, in the nature of an audit, made by the examiner and inspector of the state shows that during the period the defendant served as delinquent personal tax collector he received commissions totaling more than $13,000, which had been allowed by the board.

A copy of the audit made by A. E. Bockoven, deputy state examiner and inspector, shows that the defendant collected $13,327.84 that he did not pay into the treasury of Pottawatomie county, Okla. According to the evidence of the deputy examiner and inspector A. E. Bockoven, the defendant’s accounts and books were audited from March 23, 1931, to April 1, 1935; that the amount of $13,327.84 was the amount collected by the defendant and not accounted for from July, 1932, to the date of his resignation. The witness further stated that the shortage was determined by delinquent warrants issued by the county treasurer to the defendant, but not returned by the defendant, and that the collection of the amounts charged to the defendant was shown by the indorsements made on the warrants by the defendant, and also by duplicate copies of receipts issued to the taxpayer.

The witness further stated that these warrants and duplicate receipts were in the possession of the defendant when he started his examination, and were finally delivered by the defendant to the witness. Witness further testified he had trouble in getting possession of the warrants and receipts; that he had a conversation with the defendant in which he asked the defendant why he held the warrants out, and the defendant replied, “I thought I could raise the money to pay them oft”; that he asked the defendant what he thought the shortage would be, and the defendant replied he thought it would total about $15,000 or $16,000.

The testimony further shows that the warrants that were returned by the defendant to the county treasurer were entered upon the tax warrant register showing the return. Those that showed the collection, showed the amount, the receipt number, the date it was entered in the tax warrant register, and filed in the treasurer’s daily-report sent to the county clerk.

The testimony shows that the warrants return by the defendant were never returned to him. The money that he collected and turned over to the collector was placed in what was known as a depository county fund, and he would then issue a check against that account to the treasurer. On April 3, 1935, the balance shown in the depository account was $1.35. The state also introduced many of the warrants and receipts for the money collected for the state by the defendant and not reported to the treasurer.

The defendant did not testify, and the only testimony he offered was the testimony of several witnesses as to his previous good character, which was not disputed by the state.

The defendant in his petition in error alleges eleven errors which he deems sufficient to warrant a reversal. In his brief he discusses only two of the eleven errors assigned, being the second and third, which are as follows:

“2. Because the evidence fails to sustain the allega.-tions of the information and is insufficient to sustain a verdict of guilty of any offense.
“3. For error of the court in admitting incompetent, irrelevant and immaterial testimony, to which the defendant at the time objected and excepted.”

It is urged by the defendant that the evidence fails to sustain the allegations of the information and is wholly insufficient to meet the proof required, citing in support of his contention Hays v. State, 22 Okla. Cr. 99, 210 Pac. 728, and State v. Harris, 47 Okla. Cr. 344, 288 Pac. 385.

The information has been carefully examined and studied, and we find that it charges the defendant was a delinquent personal tax collector of Pottawatomie county, Okla., and as suck delinquent personal tax collector was charged and intrusted with the authority to collect, receive, and hold in- his possession and under his control moneys collected by him as said delinquent personal tax collector; that he collected certain sums of money, and that he was charged with the control, disbursement, safekeeping, and transfer of said public money and funds, and that he did wrongfully, unlawfully, and feloniously convert and appropriate to his own use and benefit and to the use and purpose not in the lawful execution of the aforesaid trust as delinquent personal tax collector of Pottawatomie county, Okla., a part of said money or funds so collected and held in trust and intrusted to him by virtue of his said office, to wit, the sum and amount of the value of $13,341.37.

The proof shows that the defendant entered into a contract with the county commissioners by Which he was to collect delinquent personal taxes, and the evidence shows he collected moneys for such taxes from different individuals in the county for which he failed to account.

The information sufficiently charges the crime of embezzlement under section 7761, O. S. 1931 (19 Okla. St. Ann. § 641), and the instructions of the court correctly advised the jury as to the law applicable to the facts. This defendant did not take the stand. The only testimony offered by him was testimony as to his previous good character.

The defendant contends that the evidence of the state is insufficient, and fails to sustain the allegations of the information. Section 3062, O. S. 1931 (22 Okla. St. Ann. § 834), provides:

“On tbe trial of an indictment or information, questions of law are to be decided by tbe court, and tbe questions of fact are to be decided by tbe jury; and, although the jury have the power to find a general verdict, which includes questions of law as well as of fact, they are bound, nevertheless, to receive the law which is laid down as such by the court.”

The question of the sufficiency of the evidence has been before this court and considered in many cases, and this court has universally held:

“Where there is evidence from which a jury may reasonably and logically find the guilt of an accused, the weight and credibility of such evidence is for the jury, who see and observe the witnesses, and this court will not substitute its judgment in such case for that of the jury.” Parnell v. State, 39 Okla. Cr. 361, 265 Pac. 660.

Conflicting issues of fact are for the sole determination of the jury. Adams v. State, 54 Okla. Cr. 363, 21 Pac. (2d) 1075; Tillery v. State, 23 Okla. Cr. 226, 214 Pac. 198; Taylor v. State, 21 Okla. Cr. 351, 207 Pac. 746; Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352; Humberd v. State, 56 Okla. Cr. 23, 32 Pac. (2d) 954; Coats v. State, 56 Okla. Cr. 26, 32 Pac. (2d) 955; Kisselburg v. State, 56 Okla. Cr. 46, 33 Pac. (2d) 236; Clemmer v. State, 56 Okla. Cr. 354, 40 Pac. (2d) 37; Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Campbell v. State, 23 Okla. Cr. 250, 214 Pac. 738; Robinson et al. v. State, 60 Okla. Cr. 443, 65 Pac. (2d) 212.

The defendant did not offer any evidence denying, that he, as delinquent personal tax collector of Pottawatomie county, had not received the money which he was alleged to have embezzled.

The information in this case clearly stated facts sufficient to advise the defendant of the charge he was called upon to meet, and the evidence is sufficient to sustain the allegations in the information. It is not controverted by the defendant that he was appointed by the commissioners of Pottawatomie county, delinquent personal tax collector, to collect the delinquent taxes and pay the money collected into the county treasurer.

“Where one is charged with embezzlement of funds belonging to a county, he will not be heard to say that such funds were unlawfully acquired by him.” Greenwood v. State, 57 Okla. Cr. 271, 47 Pac. (2d) 885; Waldock v. State, 42 Okla. Cr. 331, 276 P. 509.

The other errors assigned by the defendant and not discussed in his brief have been carefully examined by the court and found to be without merit. It is clearly shown that the defendant collected the sum of money alleged to have been embezzled, and appropriated it to his own use or failed to deposit it with the county treasurer of Pottawatomie county, the purpose for which it was collected.

After a careful examination of the entire record, we are satisfied that there are no reversible errors. The defendant was accorded a fair and impartial trial. The court correctly advised the jury as to the law applicable to the facts. The case is affirmed.

DOYLE and BAREFOOT, JJ., concur.


text:
    FRANK PALMORE v. STATE.
    No. A-9238.
    May 7, 1937.
    (67 Pac. [2d] 974.)

      Blanton, Curtis & Blanton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

The information in this case filed in the district court of Garvin county October 25, 1935, upon which appellant was convicted, charges with proper formality that in said county on the 20th day of October, 1935, Frank Palmore did then and there kill and murder one Dewey Battles, by shooting him with a revolver. On the day the information was filed an order was made admitting the defendant to bail, fixed at $5,000, which on the same day was given and approved. Upon arraignment he pleaded not guilty. Upon trial he was by the verdict of the jury found guilty of manslaughter in the first degree, and his punishment fixed at confinement for four years in the state penitentiary. His motion for a new trial was overruled. On June 1, 1936, the court rendered judgment in accordance with the verdict. On November 30, 1936, an appeal was taken by filing in this court a transcript of the récord duly certified with petition in error.

The record shows that when judgment was rendered the defendant gave notice of his intention to appeal. The court fixed the amount of his appeal bond at $2,500 which was given, and the execution of the judgment stayed pending-the filing of the appeal as required by law. Section 3195, St. 1931 (22 Okla. St. Ann. § 1057). That the defendant was given 60 days to make and serve a case-made, the state to have three days from the date of service thereof in which to suggest amendments, and said case-made to be settled and signed on three days’ notice in writing by either party. That on July 14, the time for making and serving a case-made was extended ninety days additional to the time heretofore granted. On October 26, the time was extended for a further period of 30 days.

It will thus be seen that the time in which to- make and serve a case-made expired November 28. On that day the defendant filed an “application for order directing-transcript of testimony to be furnished without expense to defendant,” wherein it is averred, among other things, that by reason of his poverty, affiant has been unable to raise funds to pay for preparing said transcript to make a case-made, and praying the trial court to make and enter its order directing a transcript of the evidence be furnished him without costs at the expense of Garvin county.

On tbe same day all parties appearing, tbe court made and entered tbe following order:

“Thereupon tbe court after being well and fully advised in tbe premises and after a consideration of tbe affidavit of tbe defendant attached to bis application as ‘Exhibit A’, finds that said application has heretofore been orally made for tbe furnishing of said transcript free of cost to tbe defendant and orally denied by tbe court, and: that said written application should now in all things be denied.” To which action of the court tbe defendant excepts.

On tbe same day, written notices of appeal were served as required by section 3198 (22 Okla. St. Ann. § 1060).

Tbe grounds of■ defendant’s motion for a new trial, and here assigned as error, are: That tbe trial has been bad in bis absence; that tbe jury received evidence out of court and separated without leave of court, after retiring to deliberate on their verdict; that tbe verdict was determined by lot and by means other than a fair expression of opinion on tbe part of tbe jury; that the court misdirected tbe jury in matters of law; and that tbe verdict is contrary to law and to tbe evidence.

Tbe other assignments are: That the court erred in overruling and denying tbe motion for a new trial; that tbe court erred in denying tbe defendant’s application for an order directing tbe furnishing of a transcript of tbe evidence in said cause to him without cost to said defendant and at tbe expense of Garvin county.

We have examined tbe transcript of tbe record and considered tbe same in connection with tbe errors assigned in tbe petition. Tbe record shows that no1 objection was made to tbe information by motion or demurrer thereto and that no objection was made or exception taken to tbe instructions given by tbe court. Tbe information is sufficient and we find the instructions correctly cover the law of the case. The record shows that no proof by affidavit or otherwise was offered in support of the motion for a new trial.

Error must af firmatively appear from the record. It is never presumed. Every presumption is in favor of regularity of the proceedings had upon the trial. The general rule often announced by this court is that the plaintiff in error must affirmatively show prejudicial error; otherwise the judgment of the lower court will be affirmed.

In the absence of a transcript of the evidence taken upon the trial from the record filed in this court, the presumption is. that the evidence was amply sufficient to sustain the verdict and judgment.

The only other question to be determined in this case is, Did the court err in refusing to order the court reporter to furnish the defendant with a transcript of the testimony in order to perfect his appeal by a case-made?

Section 3823, Code of Criminal Procedure (20 Okla. St. Ann. § 111) is as follows:

“The judge may, upon the application of either party in a criminal case, direct the reporter to make out and file with the clerk of the court a transcript of his shorthand notes when the same is needed in such case, and he shall receive as compensation therefor ten cents per folio': Provided, However, that if, before a transcript of the notes is ordered on application of the defendant or his attorney, the defendant shall present to the judge his affidavit that he intends in good faith to take an appeal in the case and that such transcript is necessary to enable him to prosecute the appeal, and that the defendant has not the means to pay for the same, the court may, at its discretion, order the transcript made at the expense of the county.”

Under this section, tbe granting or denying of an application for a transcript of the testimony at the expense of the county rests in the sound judgment and discretion of the trial court, and its ruling must be upheld unless it clearly appears from the record that such discretion has been abused. Harris v. State, 10 Okla. Cr. 417, 137 Pac. 365, 139 Pac. 846; Moore v. State, 33 Okla. Cr. 304, 243 Pac. 995; Clark v. State, 39 Okla. Cr. 116, 263 Pac. 679; Hembree v. State, 53 Okla. Cr. 79, 7 Pac. (2d) 491; Gaines v. State, 61 Okla. Cr. 8, 65 Pac. (2d) 422.

The exception to this rule is in capital cases, where the trial results in a judgment and sentence of death, and the defendant desires to appeal, it is the duty of the trial court to order the court clerk to- furnish a duly certified transcript of the record, and to order the court reporter to furnish a transcript of the testimony without expense to the defendant. Noel v. State, 17 Okla. Cr. 308, 188 Pac. 688.

In felony cases, the appeal must be taken within six months after the judgment is rendered. Section 3192 (22 Okla. St. Ann. § 1054).

In the case at bar, it appears the application for the order was not filed until two days before the expiration of six months from the date of the rendition of the judgment.

The statute, section 534 (12 Okla. St. Ann. § 958), provides:

“The case so made, or a copy thereof, shall * * * be served upon the opposite party or his attorney, who may within three days thereafter suggest amendments thereto-in writing, and present the same to the party making the case, or his attorney. The case and amendments shall, upon three days’ notice, be submitted to- the judge, who shall settle and sign the same, and canse it to be attested by the clerk, and the seal of the court to be thereto attached. It shall then be filed with the papers in the case.”

Under this section a case-made could not be served and submitted to the judge to settle and sign the same within six months from the date of the rendition of the judgment.

Upon the record before us and for the reasons stated, we are of opinion that the court did not err in denying the application.

Having failed to discover any material error in the record, the judgment appealed from is. affirmed.

DAVENPORT, P. J., and BAREFOOT, J., concur.


author: BAREFOOT, J.

text:
    FRANK C. COOPER v. STATE.
    No. A-9077.
    May 7, 1937.
    (67 Pac. [2d] 981.)

      Robert J. Bell and Wallace Wilkinson, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and W. J. Counts, Co. Atty., for the State.
   BAREFOOT, J.

The first assignment of error was that the court erred in permitting the state to introduce the photograph of deceased. The photograph was taken about two days after the death of deceased. There was a controversy between the state and the defendant as to whether an eye of the deceased, which was black, had been caused by the fluid used by the undertaker when the body was embalmed, or by the defendant striking her at the time of her death. The jury heard the testimony on both sides, and had the opportunity to hear all the facts in reference thereto. Under these circumstances, and the general authorities, and from the law of this state, we do not think the court erred in permitting the introduction of the photograph. The court did not permit it to be introduced at first, and only after the defendant had testified in his own behalf. Early in the history of this court it was held that photographs were admissible, and their admission was a matter addressed to' the discretion of the trial court, under the circumstances of each particular case. See Morris v. Territory, 1 Okla. Cr. 617, 99 Pac 760, 101 Pac. 111; Morris v. State, 6 Okla. Cr. 29, 115 Pac. 1030, 1032. In the last cited case the court says:

“The general rule is without contradiction that, where the photograph is shown to be a faithful representation of whatever it purports to reproduce, it is admissible, as an appropriate aid to the jury in applying the evidence, and this is equally true whether it relates to- persons, things, or places. Rice, Crim. Ev. p. 154; Wharton’s Crim. Ev. (9th Ed.) § 544.”

In tbe above case tbe picture was taken three weeks after tbe death of deceased and tbe court says that this would not make the testimony incompetent, and further says:

“Nor do we believe there was any error in admitting tbe photographs even though they tended to show the atrocity of the crime.” Cowley v. People, 83 N. Y. 464, 38 Am. Rep. 464.

We believe that with the advancement in the science of photography that it will be the policy of the courts in the future to more frequently permit the introduction of photographs in the trial of cases. We do not believe that the introduction of the photograph in this case caused undue passion or prejudice. This is clearly shown by the verdict. The defendant being charged with murder was only convicted of manslaughter in the second degree. The main case relied upon by the defendant is the case in which the defendant was given a life sentence. See McKay v. State, 90 Neb. 63, 132 N. W. 741, 39 L. R. A. (N. S.) 714, Ann. Cas. 1913B, 1034.

The next assignment of error is that the court permitted to be offered in rebuttal certain tests made by the firing of the gun of defendant into' white muslin cloth at different distances, for the purpose of demonstrating at what distance there would be powder burns on the same.

The state did not offer any expert testimony in chief with reference to powder burns. One of the witnesses had simply been asked whether or not the body of the deceased showed any powder bums. The defense offered Dr. Herbert Wilson and questioned him as to powder bums, and with reference to certain tests that had been made in his presence by Major Chaney, who was also' the undertaker in this case. The state, on rebuttal, put Major Chaney on the stand, but did not question Mm with reference to the tests wMeh be had made. Attorneys for the defendant made him their own witness and examined him with reference to these tests and especially with reference to the distance that powder would burn the skin or hair under similar conditions and circumstances as the case at ■bar. After the defendant had offered this testimony, the state in rebuttal offered a witness Clarence Owens, who qualified as an expert with reference to the use of firearms, and he. gave evidence of the results of tests made by him. In these tests he used the gun of defendant, which it was admitted fired the shot that killed the deceased, and the same kind of cartridges were used. The tests were made at different distances from one to twelve inches. In these tests the witness used white muslin cloth and the defendant claimed that by the use of white cloth that the tests were not made under the same conditions and under similar circumstances, and that this was improper rebuttal testimony. Counsel for defendant, in their brief, referred to the evidence of witness Chaney as being evidence offered ■by the state and that the state attempted to rebut its own witness by the evidence of the witness Owens. The record discloses that counsel for defendant made the witness Chaney their own witness for the purpose of this examination, and after he had testified for the defendant, the state then offered the testimony of the witness Owens in rebuttal.

We do not think it was error for the court to admit this testimony. The fact that it was made with white muslin cloth does not so change the circumstances as to cause it to be inadmissible. The jury heard the witness Chaney for the defendant, whose tests had been made with meat and hair and under conditions which the defendant claimed were similar to the evidence in this case, and the jury also heard the evidence of the tests made by the witness Owens for the state. The presumption is that due consideration was given to all of the testimony by the jury. 'This court has decided that evidence of this character is admissible. One of the first cases is that of Gibbons v. Territory, 5 Okla. Cr. 212, 115 Pac. 129. The rule in that case has since been modified to some extent by this court in the case of Irby v. State, 18 Okla. Cr. 671, 197 Pac. 526, 530; and Shepherd v. State, 51 Okla. Cr. 209, 300 Pac. 421, 423. In the Irby Case the court says:

“As a general rule an experiment introduced for the purpose of proving that the alleged result is obtained by a certain act or operation, considered as existing in the case, should not be permitted unless the conditions and circumstances under which the experiment is made are similar to those shown actually to have existed in the case. However, if the evidence shows that the experiment was made under circumstances similar, or approximately similar, to those which surrounded the original transaction, and such experiment would serve to shed any light upon that transaction, it would be admissible, although such experiment might not have been made under exactly similar conditions as attended the original transaction. The want of exact similarity would not exclude, but would go to its weight with the jury. 1 Michie on Homicide, p. 832, and cases cited. Where the competency of evidence of experiments depends upon similarity of circumstances and conditions, the question is one for the court to determine. We are satisfied that the court did not err in admitting evidence of the experiments as tending to shed some light on the firing of the fatal shot, and its weight was for the jury to determine.”

In the Shepherd Case the court says:

“The general rule as to the admissibility of the result of experiments is, if the evidence would tend to enlighten the jury and to enable them to more intelligently consider the issues presented and arrive at the truth, it is admissible. Tbe experiment should be under circumstances similar to those prevailing at the time of the occurrence involved in the controversy. They need not be identical, but a reasonable or substantial similarity is sufficient. Several courts have held that the lack of identity of circumstances affects only the weight and not the competency of the evidence provided there is a degree of similarity which will assist the jury. 22 C. J. p. 755, §§ 842, 843, 850, and 852, notes; Clark v. State, 38 Tex. Cr. R. 30, 40 S. W. 992; Spires v. State, 50 Fla. 121, 39 So. 181, 7 Ann. Cas. 214.
“The experiments here were not made under identical conditions, but were under such reasonably similar conditions as would tend to throw light on the point in controversy and to- assist the jury to arrive at the truth. Evidence of experiments are not conclusive; they are circumstances to be considered, weighed, and determined by the jury along with the other evidence in the case. The court did not err in admitting this evidence.”

The next assignments of error are that the court erred in overruling the demurrer to the evidence, and the refusal of the court to instruct the jury to render a verdict for the defendant, and that the judgment was not sustained by sufficient evidence.

The facts in this case are that the defendant and deceased were husband and wife; that they had been married for two years; that both had been previously married and he had three children and his wife one child; that at one time the daughter of defendant and her husband had lived with them for some time, and afterwards the daughter of deceased lived with them. The record reveals that their marital relation had met with many storms and controversies. It will serve no useful purpose to go into detail with reference to' them. They had quarreled, fussed, and cursed each other and then gone back together, attempting to live in happiness. On the night of the 28th day of April, 1935, defendant bad returned to McAlester from bis rnn on tbe Kock Island from Amarillo-, Tex., he having been a railway mail clerk on this rnn for several years. He first went to tbe home of bis son-in-law and bis daughter for tbe purpose of reading some letters and seeing his grandchild. He then went to- bis own home and a quarrel soon started between him and bis wife because be bad arrived home late and tbe dinner was cold. He testified it Avas his usual custom to bring home with him bis government pistol, and that be did so on this occasion; that be usually unloaded it and bid tbe cartridges, but that by reason of tbe excitement of tbe quarrel on this night be failed to do- so, but threw it o-n tbe bed; that be went into tbe kitchen to- eat his dinner, but that tbe quarreling and fussing was so bad that bis wife left and went into- the east bedroom where the pistol bad been left and that be followed her; that she picked up tbe pistol and was pointing it at him, threatening to- kill him; that be grabbed tbe pistol; and that in tbe scuffle for tbe possession of tbe same, tbe gun was accidentally discharged, bis wife being accidentally killed.

The officers and tbe undertaker, when first entering tbe bouse, found the body of deceased lying on tbe floor of tbe east bedroom in a pool of blood, she was lying on her face with her bead to tbe north and her feet to- tbe south. Tbe bullet bad bit tbe top of her bead near the center. The gun was lying on tbe bed. One cartridge bad been discharged and four loaded ones were in tbe pistol.

Tbe shooting occurred at about 9:45 p. m., and within about ten or fifteen minutes thereafter tbe defendant turned out tbe light and left the bouse and went to tbe home of bis son-in-law and related to him what bad happened and they returned to tbe home of tbe defendant and defendant went into the house, his son-in-law remaining on the outside. ' Some neighbor, having been informed about the difficulty and that a shot had been fired, had in the meantime notified the officers and as the defendant was coming back into the front door after re-entering the house, he was met by one of the officers who had come to malee an investigation. This officer testified that as he was trying to enter the house the defendant hollowed to John — his son-in-law was named John McBee, and he was on the front porch — “My God, I have killed her,” and then this witness further testified: “I says, ‘Who’s she?’ ‘My wife, who are you?’ ‘What are you doing here? Who called you?’ ” The officer, after picking up the gun, immediately arrested the defendant and took him away and on the way to the jail the defendant said: “I just come in from the run and here my woman accusing me of something because I was late she said she would shoot me, and I killed her.”

The evidence further showed that the defendant’s house was facing south and that there were residences just east and west of his residence. In the residence R> the west lived Mr. and Mrs. L. G. Murray. They both testified about as follows: That they were at home on Sunday night, April 28, 1935; that they lived about 40 feet west of where defendant lived; that there was an east window in the west side of defendant’s home; that they had just retired for the night when they heard loud cursing, swearing, and quarreling in defendant’s home; that they heard the voice of defendant cursing and saw him and his wife go from the kitchen into the east bedroom and still heard quarreling and the defendant cursing. In about five minutes after they entered the east room, they heard a pistol fire; this was about 9:45 o’clock; that they saw defendant bending over toward the floor and moaning and crying; that they saw him turn out the light in the kitchen and then return to the east bedroom, turn out the light and heard him leave in a car; that he remained in the room ten or fifteen minutes after the shot was fired. Mr. Murray testified that he remained in bed for about an hour, and thinking some one might have been injured he went to a neighbor’s house and this neighbor telephoned for the officers.

Mr. J. A. Ivey, who> lived in the house 25 or 80 feet just east of defendant’s home, testified for the defendant. His testimony was that he had only lived at this place for three or four days; that he had heard the defendant and deceased cursing each other prior to the night of the difficulty ; on that night the windows of his home were closed, but about 9:30 or 10 o’clock he heard loud talking and cursing at the Cooper home; he heard Mrs. Cooper call Mr. Cooper a “God damn son-of-a-bitch,” and immediately thereafter he heard Mr. Cooper say, “Don’t do that — don’t do that”; that he heard a noise that sounded like a shot or something hit the wall; some few minutes thereafter he saw the defendant get into’ an automobile that was parked between the houses and leave the premises. The testimony showed that the defendant was away for practically an hour before he returned, he having returned just about 11 o’clock.

There was a great deal of other testimony which showed threats of the deceased toward the defendant, and many quarrels, cursings, and other evidence in the marital life of these parties which is unnecessary to relate.

It has always been the policy of this court, and other courts, to' not interfere with and set aside the verdict of a jury where the evidence is conflicting and where there is evidence sufficient to sustain the same. The jury had the opportunity to see the witnesses, to hear their evidence, to view their demeanor upon the witness stand. It is not for us to' say what we would have done under similar circumstances. The jury did not seem to act under passion or prejudice. The defendant was charged with murder and only convicted of manslaughter in the second degree, and given a sentence of four years in the penitentiary.

For the reasons above indicated, we cannot see that the court erred in refusing to sustain the demurrer to the evidence, or in refusing to give an instructed verdict.

The next assignment of error is that the jury was permitted to view the premises where the killing occurred, and that while viewing the premises one of the witnesses who testified at the trial was permitted by the bailiffs to make an improper remark in the presence of the jury. The contention being that the witness Murray, who testified for the state, was at his home when the jury viewed the premises and that coming out of his house he made the statement in the presence of a part of the jury: “Bee —how I could hear the shot.” This was first raised on a motion for new trial. It was supported by affidavits of a brother and sister of defendant who claim they were nearby and heard the remark. The state offered the evidence of the two bailiffs and the evidence of the witness Murray. All of them denied that any such remark was made. One of the bailiffs testified that the witness Murray came to his side and simply asked him: “What does this mean?” and that he told him that the jury was examining the premises and that nothing would be molested. With this he turned away and left. This was a matter that was in the sound discretion of the court and after hearing the evidence, he overruled the motion for new trial, and we do not think it was error so to do.

It is next contended that the closing argument of the county attorney was prejudicial to the defendant. On the motion for new trial, an affidavit of one of the attorneys for defendant was attached to the motion, in which it was stated:

“G-entlemen of the jury, it is your duty to enforce the laws of this state, and if you enforce the laws of this state, and if you enforce the laws fearlessly, we will not have four of five murder cases every term of court in this county.’7

The affidavit stated that upon objection by counsel for defendant the court sustained the objection and directed the jury not to consider the argument. Under the ruling of this court, this is not the proper way to make objection to argument of counsel. Counsel, in their brief, admit that the: argument of the county attorney, standing alone, will not justify a reversal of this case. We are of the same opinion. Quitman v. State, 35 Okla. Cr. 245, 250 P. 441; Tucker v. State, 9 Okla. Cr. 587, 132 Pac. 825.

The defendant offered six requested instructions. The court gave five of them, either as defendant requested or in substance. He now insists that the court erred in refusing to give the other requested instruction. This was an instruction that made special reference to one of the instances shown by the evidence. The court, in his instructions, covered every phase of the evidence by general instructions and we do not think the defendant was entitled to have submitted an instruction referring to one event. The instructions given by the court have been carefully examined, they covered every phase of the law and gave the defendant every right to which he was entitled. Not only did the court instruct the jury with reference to the defense interposed by him, but the court told the jury that if they found that the defendant actually caused the gun to fire, but that he did not intentionally cause the same to fire, then under such circumstances the firing of the gun would not constitute any crime on the part of the defendant, and that if they so found it would be their duty to' find the defendant not guilty. This instruction was all the defendant could ask.

The next contention is that the court erred in permitting the county, attorney on cross-examination of the defendant to have him make a demonstration before the jury, using a young lady, as to how the shooting occurred. We do not think this practice is commendable. We do not believe, however, that it is sufficient to cause a reversal of this case.

It is next contended that the court erred in submitting to the jury the question of second-degree manslaughter. We have examined the cases cited by defendant in support of this proposition, being Swan v. State, 13 Okla. Cr. 546, 165 Pac. 627, 631; Lovejoy v. State, 18 Okla. Cr. 335, 194 Pac. 1087; Kent v. State, 8 Okla. Cr. 188, 126 Pac. 1040; Clark v. State, 27 Okla. Cr. 11, 224 Pac. 738; Nail v. State, 33 Okla. Cr. 100, 242 Pac. 270, 272; and the California case of People v. Driggs, 111 Cal. App. 42, 295 Pac. 51.

We do' not find anything in these cases which would warrant us in holding that a charge of manslaughter in the second degree should not have been given in this case. In the Kent Case, Judge Doyle quoted with approval from the case of Cannon v. Territory, 1 Okla. Cr. 600, 99 Pac. 622, where the court says:

“In a prosecution for murder, the court should submit the case to the jury, for consideration upon every degree of homicide which the evidence in any reasonable view of it suggests; and, if the evidence tends to prove different degrees, the law of each degree which the evidence tends to prove should be submitted to the jury, whether it be requested on the part of the defendant or not. It is the duty of the court to say, as a matter of law, if there is any evidence that would tend to- reduce the degree of the offense to manslaughter in the second degree.”

In the Swan Case the court says:

“If there is evidence, even though slight, tending to establish manslaughter in the second degree, a, reversal would not necessarily follow.”

In this case it was. held that there was no element of manslaughter in the second degree. In the Love joy Case, which was an abortion case; the court found that no element of manslaughter in the second degree was found to exist. In both the Clark and Nail Cases the charge of second-degree manslaughter was upheld. Judge Edwards, in the Nail Case, quoted with approval from Negligence in Law, Yol. 3, p. 7, as follows:

“The term ‘criminal negligence’ has reference mainly to the authority by whom reparation is sought. An inseparable accident of criminal negligence may be that it is a violation of duty imposed for the preservation of human life. It is criminal because it constitutes a violation of an obligation to the state, and which can only be remitted by the state. Criminal negligence per se does not differ from negligence simply. The same negligence, as it affects the individual and the state, is, respectively, gross negligence and criminal negligence. While it is the groundwork of reparation to the private individual, however heinous it may be, it is no more than negligence. .So soon as it is the subject-matter in respect of which reparation is exacted by the state, it becomes criminal negligence. * * * Criminal negligence then is negligence in such circumstances that it imposes an obligation re-missible by the state, but irremissible by the individual actually damnified by it; and since the state will not lightly intervene, criminal negligence must be some ‘substantial thing’ and not a mere casual inadvertence. Between criminal negligence, however, and actionable negligence, there is no principle of discrimination, but a question of degree only,” and then say: “There must be negligence rising to the degree of criminal or culpable negligence. The culpability of a defendant is a question of fact for the jury, and the test is: Do the acts charged as criminal show a degree of carelessness amounting to a culpable disregard of the rights and safety of others, and did said acts cause the death of deceased? If so, it establishes a case of criminal negligence.”

It will thus be seen that the courts do not make much of a distinction between actionable negligence and culpable and criminal negligence only as to the degree. Negligence is criminal because it constitutes a violation of an obligation to the state. The culpability of the defendant is a question of fact for the jury.

In the case at bar, the court, in its instructions defining culpable negligence, gives practically the same definition that was given in the Kent Case, supra. We do not think the court erred in submitting a charge of manslaughter in the second degree under the facts in this case. Under the evidence, the jury could have found the defendant guilty of a greater offense, and the defendant, under the holdings of this court, could not complain. Taylor v. State, 44 Okla. Cr. 58, 278 Pac. 1117; Smith v. State, 20 Okla. Cr. 301, 202 Pac. 519; Hallmark v. State, 22 Okla. Cr. 422, 212 Pac. 322; Wilmoth v. State, 20 Okla. Cr. 453, 203 Pac. 1055, 21 A. L. R. 590.

We have carefully examined the record in this case and we find that the defendant has had a fair and impartial trial. The jury of his county heard the evidence, they had an opportunity to hear his theory of the case and acquit him. Instead they found him guilty of manslaughter in the second degree and assessed Ms punishment at four years in the penitentiary. Under the law, it becomes necessary for us to' affirm the judgment of the district court of Pittsburg county, and it is so ordered.

DAVENPORT, P. J., and DOYLE, J., concur.


text:
    JAMES WARREN v. STATE.
    No. A-9147.
    May 7, 1937.
    (68 Pac. [2d] 434.)
    James Warren, pro se.

      Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error for convenience referred to as the defendant was charged in an information filed by the county attorney of Oklahoma county in which it is stated:

“On the first day of June A. D. 1935, in Oklahoma County, State of Oklahoma, James Gordon, whose more full and correct name is to your informant unknown, then and there being, did then and there wilfully, unlawfully and feloniously commit the crime of forgery in the second degree in the manner and form as follows, to wit: That is to say, the said defendant, in the county and state aforesaid, and on the day and year aforesaid, then and there being did then and there wilfully, unlawfully and felon-iously issue, utter, exchange and deliver to- the Fidelity National Bank, a banking organization, organized and existing under the laws of the United States of America, and authorized to do business in the State of Oklahoma, for the consideration of $833.00, good and lawful money of the United States of America, a forged and counterfeited bond, to wit: $1,000 4%% bond of the City of Omaha, Series 1925, to finance street improvements, No. 66, dated November 1, 1925 and due November 1, 1945, with November 1, 1935, and subsequent coupons attached, with the felonious intent to have the same uttered and passed as true and genuine, and he, the said defendant, knew that said bond Avas forged and counterfeited, in that said bond, was not a true original and valid bond, but is a reprint copy of the true, original and valid bond, and the signatures of James C. Dahlman, Ohas. E. Stencha, James P. Hoctor and Geo. W. Marsh, appearing thereon are forgeries, and not the true signatures of the said James C. Dahl-man, Chas. E. Stencha, James P. Hoctor and Geo. Marsh, and were not done with their knowledge and consent.”

On July 11,1935, the defendant entered his plea of not guilty to the information filed against him. On Novem-her 26, 1935, tbe state was granted leave to amend tbe information by changing tbe date of tbe offense from May 28,1935, to June 1, 1935, and on November 27, 29, and 3’0, 1935, tbe county attorney was given permission to indorse additional names of witnesses on tbe information.

On December 2, 1935, a jury was duly and regularly impaneled and the trial proceeded. C. J. Collingsworth, testifying for tbe state, stated:

“I am forty-seven years of age; I live at 3214 West 18th Street, Oklahoma City, Oklahoma; have lived in Oklahoma City twelve years; I am married; am employed by the U. S. Veterans Administration; have been for four years; I have been in the stock exchange business in Oklahoma City, the first time in the spring of 1933 until May 1934; the name of the company was Collingsworth & Company. I got out of business on my own accord; customers were all paid off; there was no receivership; I had a wire with the stock exchange Beer & Company, New York and New Orleans; what I had was a membership on the New Orleans Cotton Exchange. In 1935 I went in business with James Warren, alias James Gordon. I met Jack Gordon in October, 1934, in Shawnee, Oklahoma. Walter Taylor introduced him to me; I had known Taylor for five years; I went into business with the defendant in March 1935. Had a contract with the defendant whereby he was to finance and operate the business for the use of my membership and for my name, for which I was to receive $100 per month, and if the business made profit I was to receive ten per cent of the profit. I did not have active charge of the business, and I do not know for sure who made the arrangements with the bank for the banking account, either Mr. Gordon or Mr. Morris Head made the banicing arrangements; I had not done business with the Fidelity National Bank prior to that time.”

The defendant, James Warren, alias Jack Gordon, opened an office in Oklahoma City, and Morris Head was employed in the office with the title of manager of the Oklahoma City office.

The testimony further shows that on or about May or the first day of June, 1935, Morris Head saw on the desk of the defendant two city of Omaha improvement bonds, state of Nebraska, one of the bonds being the bond upon which this prosecution is based. The defendant later requested Morris Head to take these bonds to the bank and secure information as to the price of the bonds, and what they would sell for on the market. Mr. Head took the bonds to the Fidelity National Bank and secured the information and returned the bonds to the defendant.

The testimony further shows that on the desk of the defendant, at the time he took the bonds to the bank, was a little pile of bonds apparently of the same kind. Defendant stated to Mr. Head that he thought he would make a loan at the bank, and a day or two later he told Mr. Head he made the loan. Mr. Head stated he did not know where the defendant had secured the bonds; later on the defendant stated he had received the bonds as collateral from a man by the name of Constant. The witness stated he saw a ledger on which appeared evidence of an account in the name of G. A. Constant, Seminole, Okla. The ledger sheet was introduced in evidence.

After the office was established in Oklahoma City, the defendant and other persons made a trip' to Ada, Okla., and had a conversation with Mr. C. A. Rives, who rented an office in Ada to the defendant, who gave his. name to Mr. Rives as Gordon; the office was rented for the firm of Collingsworth & Co. Further testimony was given by Mr. Rives as to a conversation had with the defendant a few days later, Collingsworth and Taylor being present, the defendant discussed with Mr. Rives the making of a loan and mention was made of Ornaba city improvement bonds. A few days later the defendant advised them other arrangements for the loan had been made. He was not sure who did the talking. O. J. Collingsworth stated the defendant was the one who talked to Eives about the loan.

It is further shown by the evidence that the first loan made by Collingsworth & Co. Avas in the snm of $2,500, dated May 25,1935, and secured by three city of Omaha improvement bonds, in the sum of $1,000 each, which note Avas prepared by the bank officials, sent to the defendant’s office for his signature, signed by him, returned to the bank, and the loan was completed. The other loans were handled in the same way, and the money was placed to the credit of Collingsworth & Co., and subject to checks drawn by the defendant. The company also made another loan of $2,000 on June 1, 1935, secured by two $1,000 city of Omaha improvement bonds, and 15 shares of J. C. Penney & Co. stock. A third loan was executed to the bank. One of the bonds given as collateral to' secure the loan of June 1, 1935, forms the basis of this prosecution.

Chas. E. Stencha, testifying for the state, stated:

“I live in Omaha, Nebraska; I am city comptroller, in charge of the bonds and financial department of the city of Omaha; have been comptroller since 1924; as such comptroller of the city of Omaha, the bonds issued by the city come under' my jurisdiction; it is my duty to sign all the bonds issued by the city of Omaha, Nebraska. In 1925 an issue of bonds for Omaha street improvements was issued. State exhibit One is No. 66, one of a series of bonds numbered from one to' two hundred, issued at a rate of 4%%, dated November 1, 1925, due November 1, 1945. That is what it purports to be on the outside. In that series of bonds it would have been my duty to sign bond No. 66; also the mayor, city clerk, and Mr. Marsh, for the state auditor’s office. In 1925, James C. Dahlman was mayor of Omaha; I am acquainted with his signature. The signature on state exhibit One, being bond No. 66, is not Mr. Dahlman’s signature. I know the signature of James P. Hoctor; the signature on this bond is not the signature of Mr. Hoctor. I never signed my name to this bond, nor did I authorize anyone to put my name on it. This bond is a forgery. I know the signature of Geo., W. Marsh, auditor of accounts; the signature on state exhibit One, bond No. 66, is not Mr. Marsh’s signature.
“The signatures on state exhibit 4, is not the signature of Mr. Dahlman, Mr. Hoctor, my own signature, or the signature of Mr. Marsh; they are all forgeries.
“The signatures on' state exhibit 6, including my own signature, are not genuine; they are forgeries. The signatures on exhibits 6, 10, 11, 12 and 13, are not the signatures of the officers of the city of Omaha. They are all forgeries, none of them are genuine.”

Witness further stated:

“I have Bond No. 200 with me. I have compared the paper on which the forged bonds are printed. This Bond No. 200, and all the original genuine bonds are steel plate from the same form, same paper. The coupons on this bond in question are on the same kind of paper as the original; the type is different and a different coupon rate.”

The officers of the bank testified as to the manner- in which the loans were negotiated, and that the defendant in this case signed the names of Collingsworth & Co., by James Gordon, partner, who is the defendant in this case. The state offered proof showing that the defendant was really the main partner in the firm of Collingsworth & Co., and that he was using the Collingsworth name as he had a membership in the New Orleans Cotton Exchange, and that Collingsworth was receiving $100 per month and 10 per cent, of the profits, if any profits were made.

The testimony offered in behalf of the defendant is in substance as follows: Defendant stated at the county attorney’s office, when asked where he got these bonds, he conld not tell exactly but he called up his office and the clerk there was supposed to give him the name; still holding the telephone he took a pen and wrote down on a piece of paper, which he was given, the name of G. A. Comstamp or Constant.

The person whose name the defendant gave could not be located in Seminole, or anywhere in the country. The books of Collingsworth & Co. failed to show when examined by the receiver appointed by the court any such bonds purchased by the company or handled by the company. The defendant stated he got the bonds together with a number of other bonds from the Shawnee office, that he brought the same to the Oklahoma City office without knowing the account to which they belonged. He further stated he laid the bonds on the desk and told Morris Head to put them in the box, and after he checked them Morris Head put them in the box. I asked Head if he needed any funds at the bank and he said no. He threw the bonds in the box and they laid there two or three weeks. The box was a safety deposit box for which the defendant stated he did not have a key. He further stated that after having the bonds two or three weeks he decided to make a loan on the bonds and other collateral.

On cross-examination the defendant denied he stated the bonds came from Constant; admitting he did not know Constant, and stating he got the bonds from O’Donnell; that O’Donnell was manager, cashier, and bookkeeper of the Shawnee office.

The testimony shows that the defendant was in full control of the Oklahoma City office, and that the business was being done in the name of Collingsworth & Co. That he had in his possession ten $1,000 city of Omaha improvement bonds, which are admitted to- have been forgeries. The testimony further shows that he used these bonds as collateral in securing loans from the Fidelity National Bank, his employees being used to perfect the transactions.

The testimony shows all the notes given to the bank by Collingsworth & Co. were signed by James Gordon, partner.

The record is voluminous and many other witnesses testified as to different facts about the transaction. We do not believe it would serve any useful purpose to' set out the testimony in full. The foregoing testimony, the substance of which is incorporated in this opinion, is sufficient for this court, after carefully examining the law, to arrive at an opinion as to whether or not the defendant was accorded a fair trial under the law and the facts.

In support of his contention that he had not been given a fair trial, and that the case should be reversed, the defendant has assigned 16 errors alleged to have been committed by the trial court. The section of the statute under which the defendant was charged, tried, convicted, and sentenced to' a term of four years in the state penitentiary is section 2139, O. S. 1931 (21 Okla. St. Ann. § 1592), which is as follows:

“Every person who1, with intent to' defraud, utters, or publishes as true any forged, altered or counterfeited instrument or any counterfeit gold or silver coin, the forging, altering or counterfeiting of which is hereinbefore declared to be punishable, knowing such instrument or coin to be forged, altered or counterfeited, is guilty of forgery in the second degree.”

The defendant in his brief confines his argument to the question that the evidence of the state is insufficient to sustain a conviction. Several pages of his brief are taken np with tbe question that there is nothing in the record to show that this defendant committed the alleged crime for which he is charged and insists that there is no' testimony tending to say this defendant uttered or delivered said bond No. 66 to the Fidelity National Bank, and urges that the record is clear as to who' actually printed the bond and as to who actually authorized the signatures thereon.

The record shows the defendant in this case, who has been known at different places by different names, was a partner of C. J. Collingsworth & Co., sent his employees to the bank to close the loan. Defendant signed the notes, Avhich was the final consummation of the loan to the bank, and authorized the bonds being put up as collateral. In his argument the fundamental questions are argued by him, that the defendant in a criminal action is presumed to be innocent until the contrary is proved beyond a reasonable doubt by competent testimony. In case of reasonable doubt as to whether his guilt is satisfactorily shown he is entitled to be acquitted. Citing in support of his contention many authorities.

It is not denied by the state that it must prove each and every material allegation contained in the information against the defendant, and if it fails to prove each and every material allegation therein contained the defendant is entitled to be acquitted. It is admitted by the state that the defendant is presumed to be innocent until his guilt is established beyond a reasonable doubt, and if the state fails to do this the defendant should be acquitted. The courts are uniform on this question, and it is needless to cite the authorities relied upon by the defendant in his argument and brief.

The question for this court to decide is the question, Is the proof sufficient to establish the allegations in the information and show the guilt of the defendant beyond a reasonable doubt? In considering this question it is the duty of this court to1 consider all the facts and circumstances surrounding the transaction. It is clearly shown by the evidence that prior to his forming a partnership with C. J. Collingsworth, under the style and name of Collingsworth & Co., that defendant in different places had gone by the name of James Warren and James Gordon. When the office was opened in Oklahoma City the defendant and partner was in charg'e of the office; that C. J. Collingsworth was to receive $100 per month for salary and 10 per cent, of the profits, if any profits were made.

After the business had been conducted for some time, Morris Head, an employee of the office of Collingsworth & Co., discovered a number of these Omaha improvement bonds on the defendant’s desk; later on the defendant told him to check them and put them in a box; some time thereafter the defendant advised Mr. Head he had negotiated a loan; that he had sent the bonds out to ascertain their market value, and they had been returned with the information as to what the market value of the said bonds was.

The defendant’s own testimony clearly shows that there was something in the transaction that was not right, which he did not desire to disclose. When questioned as to the bonds, or how he came into possession of them, he said he had gotten them from a man by the name of Comstamp or Constant; later he denied he made that statement and said he got them from O’Donnell, who was in the Shawnee office of Collingsworth & Co; The receiver for Collingsworth & Co., of Oklahoma City, Okla., testified that he failed to find any record in the office showing where the forged bonds came from, or from what source they were received.

Every circumstance connected with the transaction clearly shows that the defendant in this case in some way received these bonds, and that his effort to disclose the source from which he received them shows they were not genuine but were forged. Business men do not receive |10,000 in securities without having a record showing from whom received, and the purchase price, if purchased; if not purchased, if they were received as collateral, the amount the bonds as collateral secured.

Section 3062, O. S. 1931 (22 Okla. St. Ann. § 834), provides:

“On the trial of an indictment or information, questions of law are to be decided by the court, and the questions of fact are to be decided by the jury; and, although the jury have the power to find a general verdict, which includes questions of law as well as of fact, they are bound, nevertheless, to receive the law which is laid down as such by the court.”

The question of the sufficiency of the evidence has been before this court and considered in many cases, and this court has universally held:

“Where there is evidence from which a jury may reasonably and logically find the guilt of an accused, the v/eight and credibility of such evidence is for the jury, who see and observe the witnesses, and this court will not substitute its judgment in such case for that of the jury.” Parnell v. State, 39 Okla. Cr. 361, 265 Pac. 660.

“Conflicting issues of fact are for the sole determination of the jury.” Adams v. State, 54 Okla. Cr. 363, 21 Pac. (2d) 1075; Tillery v. State, 23 Okla. Cr. 226, 214 Pac. 198; Taylor v. State, 21 Okla. Cr. 351, 207 Pac. 746; Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352; Humberd v. State, 56 Okla. Cr. 23, 32 Pac. (2d) 954; Coats v. State, 56 Okla. Cr. 26, 32 Pac. (2d) 955; Kisselburg v. State, 56 Okla. Cr. 46, 33 Pac. (2d) 236; Clemmer v. State, 56 Okla. Cr. 354, 40 Pac. (2d) 37; Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Campbell v. State, 23 Okla. Cr. 250, 214 Pac. 738; Robinson et al. v. State, 60 Okla. Cr. 443, 65 Pac. (2d) 212; and Charles J. Liddell v. State, 61 Okla. Cr. 306, 68 Pac. (2d) 432.

There is very little dispute in the record as to the evidence. The only material difference being as to where the defendant in this case came into possession of the forged bonds. That he had possession of them is un-denied, and that he had placed them as. collateral to secure a note signed by him is undenied. The evidence is amply sufficient to sustain the judgment.

The defendant also discusses the question of the court permitting amendments to the information, and alleging that the action of the court in permitting the county attorney to amend the information when it did was an error sufficient to reverse the case. In Dobbins v. State, 40 Okla. Cr. 334, 268 Pac. 1116, 1117, this court held:

“An information may be amended after plea by order of court, where same can be done without material prejudice to the rights of the defendant.”

In Anthony v. State, 55 Okla. Cr. 260, 28 Pac. (2d) 1115, in the first paragraph of the syllabus, the court stated:

“It is not error to permit the county attorney to amend the information in matter of form or substance, where the same can be done without material injury to the defendant even though the trial may have begun.”

The amendment to the information complained of by the defendant, which the court permitted the county at-tomey to make, changed the figures $833.68 to $1,000, and the date the alleged money was secured from May 28,1935, to June 1, 1935. This amendment did not change the facts or require the defendant to offer other or greater proof than he would have to offer if the amount alleged to have been secured had not been changed, and the date of the month remained as in the original information. The rights of the defendant were not prejudiced by the trial court in granting, the county attorney permission to amend the information.

The other errors assigned by the defendant have been carefully considered in connection with the testimony in the record and the instructions of the court. The court correctly advised the jury as to the law applicable to the facts. The evidence is sufficient to sustain the judgment and sentence. We fail to find any error in the record warranting this court in reversing the case and granting a new trial.

The judgment is affirmed.

DOYLE and BAREFOOT, JJ., concur.


text:
    MORRIS McDESSEY v. STATE.
    No. A-9216.
    May 10, 1937.
    (68 Pac. [2d] 113.)

      James C. Mathers and Wm. H. Lewis, for plaintiff in error.
    Lewis R. Morris, Co. Atty., and John F. Eberie, Asst. Co. Atty., for the State.
   DOYLE, J.

Plaintiff in error, Morris McDessey, was tried and convicted in the district court of Oklahoma county upon an information charging that on the 27th day of February, 1936, in Oklahoma county he committed the crime of attempted burglary in the first degree. On April 20, 1936, the court rendered judgment and he was sentenced to confinement in the state penitentiary at Mc-Alester for the term of five years and the costs. From the judgment, an appeal was duly perfected by filing in this court on October 19, 1936, a petition in error- with case-made attached.

Subsequent to the submission of the cause on the record, the plaintiff in error filed his duly verified motion in this court to- dismiss his appeal.

The Constitution and laws of this state give to every citizen convicted of crime in the courts of this state the right to appeal from any judgment rendered against him in a court of record. It is a privilege granted by the law to persons convicted of crime which they may exercise at their option.

When an appeal has been taken, unless good cause is shown to the contrary, this court has uniformly permitted the plaintiff in error to dismiss bis appeal at Ms election. Huber v. State, 13 Okla. Cr. 209, 163 Pac. 329; Hancock v. State, 57 Okla. Cr. 329, 48 Pac. (2d) 348.

In the instant case, there is no reason made to appear why the dismissal should not be ordered in compliance with the motion of plaintiff in error.

It is therefore adjudged and ordered that the appeal herein be dismissed and the case remanded to the district court of Oklahoma county. The clerk of said court is directed to spread the mandate and to issue forthwith to the sheriff of said county commitment in accordance with the judgment of said court pronounced on the verdict of the jury.

DAVENPORT, P. J., and BAREFOOT, J., concur.


text:
    Ex parte W. H. HART.
    No. A-9328.
    May 14, 1937.
    (68 Pac. [2d] 430.)
    W. O. Henneberry, for petitioner.
    County Attorney, Cole County, Missouri, Sam H. Lattimore, Asst. Atty. Gen., and Fred Cunningham, Pardon and Parole Officer, for the State.
   PER CURIAM.

The petitioner, W. H. Hart, by an original petition, filed claims that he is restrained of his liberty by A. Garland Marrs, sheriff of Tulsa county, Okla., and Buck Walz, sheriff of Cole county, Mo.; that he is restrained for the State of Missouri on an extradition warrant which alleges that your petitioner, W. H. Hart, committed the crime of selling securities without a license, in the State of Missouri.

Petitioner further alleges that his restraint is illegal and unauthorized for the reason that he is not a fugitive from the state of Missouri, and that the complaint upon which the Governor of Oklahoma issued said warrant was not and is not sufficient upon which to issue a warrant. That the said complaint discloses on its face it was not verified on oath and fails to state a crime.

The petitioner appeared by his attorney, W. C. Henne-berry; and the sheriffs appeared by the county attorney of Cole county, representing the state of Missouri, and Sam H. Lattimore, Assistant Attorney General, and Fred Cunningham, Pardon and Parole Officer, representing the state of Oklahoma.

It appeared to the court that the petition upon which the extradition warrant was issued was not properly sworn to or verified as required by law, and the case was continued until May 14, 1937, at 10 o’clock a. m. On said date, to which the case was continued, the petitioner by written letter advised the court that an adjustment had been made, and confessed that the writ should be denied.

It is therefore the judgment of this court that the petitioner, W. H. Hart, having confessed that he did not desire to prosecute the case, is not entitled to the relief prayed 101*. The writ is denied.