text:
    JEFF BRIMMAGE v. STATE.
    No. A-3084
    Opinion Filed Feb. 21, 1920.
    (187 Pac. 497.)
    (Syllabus.)
    1. APPEAL AND ERROR — Conviction—Sufficiency of Evidence. If there is a clear conflict in the evidence, or if the evidence is such that different inferences may reasonably be drawn therefrom, the jury’s determination will not he interfered with, on appeal, unless the verd'ict is clearly against the weight of the evidence, or was influenced by passion and prejudice. It is not for this court to substitute its judgment on the question of the weight of the evidence for that either of the jury or the trial court, provided there is competent evidence from which the jury were authorized to reasonably conclude that the defendant was guilty of the crime charged.
    2. LARCENY — Evidence—Sufficiency. Record examined, and held evidence sufficient to sustain the conviction.

      Appeal fro'm District Court, Haskell County; W. H. Brown, Judge.

    Jeff Brimmage was convicted of the crime of larceny of live stock and he appeals.
    Judgment affirmed.

      A. L. Beckett, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from the district court of Haskell county, wherein the defendant was convicted of the crime of larceny of live stock, and sentenced to serve a term of 3 years’ imprisonment in the state penitentiary.

The only question raised in this appeal relates solely to the sufficiency of the evidence to sustain the conviction. The Attorney General has incorporated in his brief a synopsis of the testimony of the witnesses, which fairly states the material evidence in the case, and is as follows:

“Walter Boyd, prosecuting witness, who says: In the year 1915 I lived over on .Sam Howard’s place near Tam-aha, and I was farming. I know the defendant, and then lived about three-fourths of a mile from him. About June that year one of my yearlings left home. It was kind of reddish or yellow yearling heifer with no brands or marks. It was between four and five months old, and was at that time a sucking calf. We were keeping the cows up in a pasture while we turned the calves outside, and this animal ranged on the outside, failed to come up, and we got to hunting for her. We had two calves out that day, and one of them came back home, but I didn’t find the other one for a long time. Mr. Horton told me where it was, or sent me word through Mr. Allen, and I went over and found it at Mr. Brimmage’s house on the outside there of his pasture gate. I had hunted around his place when it was gone, and I had a^ked him twice about it, and he said he hadn’t seen it, and I hunted all around his place, and upon the mountains there, but couldn’t find it. I looked through all the cattle around there, but I didn’t go in his pasture. It was inclosed with a net wire fence, and I never thought of a yearling crawling through a net wire fence; besides, his pasture was pretty thickety with bushes and blackberry briers. I found the yearling in there about the 1st of August, and'it had disappeared the June before. When I found it it had no marks or brands on it, and I took it back home and put it in my pasture. Nobody claimed it, but I learned on the outside that defendant had sold this animal to Sam Stansel. . Defendant asked me something about it the day or two before the first trial, which was in November last, I think, and then he asked me where it was. It was not taken from me with my consent, and just disappeared without my knowledge. In this conversation he had with me he said, 'There is a mistake somewhere about that yearling/ but he didn’t say anybody was claiming it. He asked me to go with him and show him the yearling; not quite that either, he asked me where it was, and it wag late in the evening, and a bad cold day, and I told him it was three or four miles from town, and that I didn’t have time to go with him then. I also told him it was in Sam Howard’s pasture, but I couldn’t say exactly where it was. I didn’t care for him seeing the yearling at all, and told him it was too cold to go with him that day. I don’t say it was taken from me, but I say it was off the range for a good time, and then came back on the range. The reason I know she was off the range was because I couldn’t find her, and I admit that it was in three-fourths of a mile of my place, and on the outside at the time I found her. I never saw it in his pasture, or know, personally, of him having anything to do with it.
“Sam Stansel: I know Jeff Brimmage and Walter Boyd, and know of Boyd’s losing a yearling about June, 1915. I bought a yearling that is supposed to have been Boyd’s, a pale yellow — some would call it a pale red or yellow — and I bought it from defendant Jeff Brimmage. When I bought it it was there in a pasture near Jeff’s home, and he showed it to me. I taken it to be about a year old. He had two other sucking calves in there at the time with this yearling. There was no mark or brands on this pale red yearling, and Brimmage didn’t tell me where he got it. I was living in about three-fourths of a mile from him at that time. The cattle he had at that time were two calves and two cows, all that I know of. I am a stockman, and know my neighbors’ cattle. This yearling was a heifer, and when I talked to Brimmage I supposed it belonged to'him and was all right. I bought other property in that contract, bought a mare, saddle, and this yearling all in one deal, I valued the yearling at $15 in the deal. I was on my way to Tamaha when I bought this property, and just left it there with him, and he said it could stay there, and the purchase was made about the middle or latter part of August, 1915. The animal remained there a week. Then the defendant immediatly left the country, that is, he was absent, wasn’t at home, and I went down to see something about the yearling. I don’t remember when I first saw him after that; it must have been a year. I live only three-fourths of a mile from him, and pass his house every day 'or so, but it was a year before I saw him any more. I went down there to get the yearling in about a week afer I bought it, and asked Mrs. Brim-mage. I never saw the yearling afterwards, nor have I seen the Boyd yearling, and I can’t say what became of the yearling I bought from the defendant. It was supposed to be in the pasture. I never went to Boyd’s place to hunt it —didn’t think it would be of any use — thought I would have to replevy it, and would have to have Mr. Brimmage in the case, and Brimmage was gone, and, so I made no effort to find it. I only asked about the yearling, asked Mr. Boyd and other parties. They described it to me, and it was the same kind that I had bought. After Jeff came back it was a couple of months before I saw him, I guess. He said he had sold me a yearling that belonged to him. I told him that Boyd" claimed it, but I never went to see Boyd -about it, because I had seen him already, and didn’t think there was any need to see him again. Brimmage never paid the money back to me that I paid him for the yearling. I had filed the information in this case, and my neighbors didn’t have anything to do with it. I didn’t institute suit until about two months after he got back — file a complaint— that is, after I had learned he had come back, for he might have been back a good while before I knew it. But he disappeared in 1915, and I got to the sheriff’s office in November, 1916. I never knew of defendant owning any cattle except the two calves and, cows. I have been a farmer all my life, and have handled stock. I have never seen the animal I bought since Boyd got it in his possession. N]ot being able to identify a solid color yearling, I could’t say whether or not the one Boyd got is the one Jeff sold me. I suppose he has been raising some calves every year since he's been there — he has had milk cows and calves. He has had cattle, but I can’t say what the descriptions were along. I have tried to tell the jury the truth, and have no reason to conceal any facts. I have talked with lots of people about this case, but I wasn’t particular about getting evidence to stick defendant — I was only trying to find out the truth about it. I would not have brought this prosecution had pressure not been brought to bear upon me. I am not now trying to have defendant turned loose.
“Ben Merriman says: I live at Tamaha, and know Jeff Brimmage, and am his brother-in-law. I don’t know the yearling in this controversy at all. I saw it, but didn’t know whose it was; and when I saw it it was in Brim-mage’s pasture, a red yearling, or rather a light red. It looked to me like it was a year old past. I lived in about three-fourths mile of Jeff’s home, and was there frequently. He was there a good deal of the time while the yearling was in the pasture. I don’t know who owned the yearling while it was in the pasture. Jeff had two calves in there. He married my sister. He owned two milk cows and two calves, and that was all the cattle he had that I know of. I suppose during 1915 I was at his place every week; in fact I farmed on the same place. I don’t know whether he claimed this yearling or not. All the cattle I know of were these two cows and 1915 calves, just two. He did not have any yearling at that time like this one. I have been acquainted with his property for 12 or 13 years. I have never talked to Jeff about this matter to amount to anything. He was gone during the year 1915, but I don’t remember how long he stayed, and when he got back he was asking me about this yearling. He asked me if I remembered the yéarling he had that run off or strayed off, or something, and I told him I did. I remembered a yearling that he used to own, and I didn’t know what became of it. He was wanting to make me a witness, and I told him I didn’t remember much about the yearling, and I didn’t think I could do him any good in the case. I told him I didn’t think that this was the yearling, or something like that. He still wanted me for a witness, and I told him if nothing else would do I would go, and I said tó him something to the amount that the yearling in this case was not the yearling that had run off. The one that ran off was a dark red in color, and that was in 1914 — was the last time I saw it. I never saw any yearling like this one around in 1915; besides, it would have been two years old instead of a yearling, and that one might have had some white on it, as I recollect. His two calves the cows had for 1915. one of them was a male, a pale red; and the other was a mottled-face heifer, with some white about her. They were winter calves, and the yearling in this controversy was much larger, maybe 150 or 200 pounds bigger. I don’t remember about the horns, but if it had any they were short. This one looked to me like it was a year old past.
“Walter Boys, recalled, says: The calf I allege was stolen was born the 1st of September, 1914. I stated a while ago that it was four or five months old when it strayed off, but I didn’t say — in my statement a while ago, I didn’t say how old it was when it went off, but I said the calf was four or five months old; I was talking about the calf. I found this animal along about the first of August, between the first and the middle of the month, and it could not have been later than that, and I carried it home and put it in the field.
“Andrew Horton: I know the defendant, knew him in 1915, and at that time lived a little better than half a mile from him. I’m his brother-in-law. I’m tolerable well acquainted with his stock and cattle. While I never pay much attention to other people’s stock I wouldn’t be posi-' tive as to how many cattle he had in 1915, but I think he had four head — two cows and two calves. I don’t know the animal in controversy, though I have seen a red yearling there in the pasture. I believe I saw it there in August. And I have seen it around the place there. In fact I don’t know whether I noticed it much or not. I don’t know, that I ever knew of Brimmage owning a yearling like this unless he bought it, and I couldn’t say whether he owned it or not.
“Will Allen: I know Jeff Brimmage, and in 1915 lived in three-fourths of a mile of him. I have seen the yearling in controversy. The first time I saw it it was on the outside, and that was along in August, 1915. I didn’t know whose property it was. The next time I saw it it was in Brimmage’s pasture, and the third time I saw it Mr. Boyd was driving it home — the same yearling. I never talked to Brimmage about it and don’t know his stock.
“Here the state closed. The defendant demurred to the evidence, and asked an instructed verdict of not guilty, which was refused. Thereupon he introduced the following evidence in substance:
“Gala Johnson: I have lived near Tamaha 25 years, and know the defendant, and have known him for 25 years. In 1915 he lived about 3 y% miles west of Tamaha, but I lived in the Osage country that year, part of the time. I was back in this section of country a week or so at the time in the summer of that year, and I was familiar with his place and its location — I won’t be positive whether I was at his place that summer or not. I lived in his section in 1914. He had cattle over there then, and has had cattle ever since I knew him — he and his mother together. I cannot answer whether or not I was about his place in 1915. The cattle he owned in 1914 were a red stock of cattle, cows and calves. I have known his pasture ever since it was put in. There is no water in there part of the year, and I have been there time and again when the gate about his house and pasture was kept open as much as it was shut. I don’t know what stock he claimed for the year 1914-1915.
“Van Johnson: I live at Tamaha, and know the defendant. He lived about 3% miles west of there in 1915. I would pass his place during that year. I was farming in the neighborhood. He had some cows and calves to my knowledge, and he had a small pasture there that I passed. I don’t think there was any water in it. There is a little branch that runs through it, but I think it was dry; but I don’t know whether that .pasture was closed up that year or not.
“Jeff Brimmage, defendant, testified: I lived 8 miles west of Tamaha in 1915, and had lived there about 11 years, and that year Walter Boyd lived on Sam Howard’s place, and % of a mile from my house. I owned some cows and calves in 1914 and 1915. I sold a yearling to Sam Stansel in 1915, a red yearling, a heifer, with a white belly, and it was my yearling. It was calved in 1914, and was over a year old. I had raised it. I owned two other calves there at that time, 1915 calves. This yearling I sold Stansel was in my pasture, the- pasture that joins my garden, right south of my house, when I sold it. to Sam. There’s' 20 acres in that pasture there, and there is no stock water in it, and the pasture was open. My well didn’t furnish water enough for my stock, and this pasture gate would stand open so the stock could go get water and come back. J. don’t know anything about Boyd’s calf, but they had cat-tie that would come there and get in the pasture from the outside, and would come up and stand around there all night, sometimes a whole bunch of them. There were all sorts of cattle among them, calves, yearlings, steers, heifers, etc. I didn’t know Boyd’s calf at that time. After I was charged with stealing his calf I went to see about it —that was November, 1916, I believe. I went to get him to show him, or go to see if it was the one I sold Stansel, and he wouldn’t go. I did sell Stansel a pale red yearling in 1915, and did so at home there in the pasture. I owned at that time six head of cattle, two cows, two calves, and two yearlings, and I had raised the yearlings. There were three cattle in the pasture when I sold this one to Stan-sel, that yearling and the two calves, and the balance of the cattle were on the outside. The mother of the calf I ■ let him have is a white faced cow, and she was on the outside. The calves were not weaned at that time, and the calves and cows were running together. This one I sold Stansel was a year old or over. I have a mark, an over-crop in one ear, and under-half in the other, but I hadn’t marked this calf — just neglected it. I turned this unmarked, weaned calf on the range. Then I had another calf there, a dark red, and my folks marked it after I left in August, 1915. I came back along in July, 1916, I believe. I sold this animal to Stansel in August, about 10 days before I left, along with some other property. I was not convicted of white slavery; I pleaded guilty. The assessor came along in January, 1915, and assessed my property. I don’t remember whether I gave in my cattle as two head for that year or not. I have got three head of cattle now. The others died last winter. I have been married, but am not married now. I am not living with my wife. At the time I made this sale I had two cows with calves, and two yearlings from the same cow. When I took Stan-sel down there the pasture was open, and that was in August, 1915, and it was dry in there. I know Frank Prentiss, and this is my assessment list, but I don’t remember of him swearing me to it, and this list contains my writing. At the time I gave this list I say I have two milk cows, and I told the jury a while ago I had two cows and calves. That looks like my signature to it, but I don’t know whether it is or not, but it looks like my signature. I can’t say I didn’t sign it.
“The assessment list returned by defendant in February, 1915, was then introduced in evidence, showing that at the time he returned for taxation only two head of cattle (cows). No yearlings dr other cattle were listed by defendant at that time.”

The jury is the exclusive trier of the facts in a criminal case, and it has been repeatedly held by this court:

“If there is a clear conflict in the evidence, or if the evidence is such that different inferences may reasonably be drawn therefrom, the jury’s determination will not be interfered with on appeal, unless the verdict is clearly against the weight of the evidence, or was influenced by passion and prejudice.” Davis v. State, 10 Okla. Cr. 169, 135 Pac. 438; Calvert v. State, 10 Okla. Cr. 185, 135 Pac. 737; Magnetti v. State, 13 Okla. Cr. 102, 162 Pac. 241; Pace v. State, 13 Okla. Cr. 580, 165 Pac. 1160; Love v. State, 12 Okla. Cr. 1, 150 Pac. 913.

The evidence in this case adduced by the state is sufficient, if believed by the jury, to authorize the conclusion •'that the defendant stole, as charged in the information, one light red yearling heifer, the property of Walter Boya. The sufficiency of the evidence was raised in the lower court by motion to direct a verdict of not guilty at the con - elusion of the state’s evidence, and also as a ground for new trial, which motions the trial court overruled. The trial court and the jury had all the witnesses before them, and it is not for this court to substitute its judgment on the question of the weight of the evidence for that either of the jury or the trial court, provided there is competent evidence from which the jury was authorized to reasonably conclude that the defendant was guilty of the crime charged, and that the verdict was not the result of passion or prejudice.

We find no error of law presented by this appeal authorizing a reversal of this judgment.

The judgment of conviction is affirmed.

DOYLE, P. J., and ARMSTRONG, J., concur.


source: Caselaw Access Project

author: MATSON, J.

license: Public Domain

text:
    B. L. THOMPSON v. STATE.
    No. A-3211
    Opinion Filed Feb. 21, 1920.
    (187 Pac. 819.)
    (Syllabus.)
    1. RAPE — Information—Sex of Victim — Sufficiency of Allegation. In a prosecution for tbe crime of rape or assault with intent to commit rape, where the description of the name of the person assaulted is one usually applied to females, an additional allegation that such person is a female is unnecessary.
    2. SAME. In such prosecution, an indictment or information charging the offense will be held to be sufficient without the use of the term “female,"’ if by other words contained therein the sex of the person alleged to have been assaulted clearly appears.
    3. ' SAME. One of the essential elements of an indictment or information charging- the crime of rape or of assault with intent to commit rape is an allegation that the person alleged tb have been raped or assaulted is a female, or else other allegations which reasonably show that such person is a female. An indictment or information which attempts to charge either of said crimes must allege facts sufficient to show that the alleged crime was committed against a female person..
    4. SAME. For information held insufficient to charge the crime of assault with intent to rape, and the reasons for such holding, see body of opinion.

      Appeal from District Court, Garfield County; J. C. Robberts, Judge.

    B. L. Thompson was prosecuted for assault with inter.! to rape, his demurrer to the information was overruled, and from a conviction and overruling of his motion in -arrest of judgment he appeals.
    Reversed and cause remanded, with instructions to sustain" the demurrer and ¡for further proceedings.

      Frederick L. Brimi, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

The" defendant, B. L. Thompson, was convicted in the district court of Garfield county of the crime of assault with intent to rape, and his punishment fixed by the jury at imprisonment in the penitentiary for a period of two' years. Judgment of conviction was pronounced for said offense in conformity with the verdict returned, and the defendant has appealed from this judgment to this court, and presents several alleged errors as grounds for reversal, among which are the following: (1) That the trial court erred in overruling the demurrer to the information; (2) That the trial court erred in overruling the motion in arrest of judgment.

These assignments of error may properly be considered together. It is contended that the information, construed most liberally in favor of the pleader, at most only charges the offense of simple assault, and said offense, being a misdemeanor, is not such as the district court would have jurisdiction to try. However, if the information is sufficient to charge the crime of assault with intent to commit rape, a verdict of guilty could properly have been returned in said court for any lesser and included offense.

In this case the verdict was one of guilty of assault with intent to commit rape, and the judgment of conviction was pronounced for said offense. If, therefore, the information, having been properly demurred to, was insufficient to charge said offense, the trial court erred, in overruling the demurrer and in pronouncing judgment of guilty for said crime against this defendant.

The charging part of the information is as follows:

“That on or about the 17th day of February, A. D. 1917, in said county of Garfield and state of Oklahoma, one B. L. Thompson did then and there unlawfully, wil-fully, and feloniously make an attempt to rape one Francis Butler, by then and there making an assault upon the body of said Francis Butler, with the intent then and there to have sexual intercourse with the said Francis Butler,said Francis Butler being then and there of the age of seven years and not the wife of the said defendant, B. L. Thompson, contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the state of Oklahoma.”

The prosecution is based on section 2338, Revised Laws 1910, which reads as follows:

“Any person who is guilty of any assault to commit any felony, except an assault with intent to kill, the punishment for which assault is not otherwise prescribed in this Code, is punishable by imprisonment in the state penitentiary not exceeding five years, or in a county jail not exceeding one year, or by a fine not exceeding five hundred dollars, or -by both such fine and imprisonment.”

Rape is defined by section 2414, Revised Laws 1910, under the first subdivision thereof, which is applicable to this case, to be:

“An act of sexual intercourse accomplished with a female, not the wife of the perpetrator, where the female is under the age of sixteen years.”

It is contended by counsel for the defendant that the information nowhere alleges that the person assaulted by the defendant was a female. The Attorney General, on the other hand, while admitting an absence in the allegation in the information that the person assaulted was a female, contends that because the pleader used the language, “with the intent then and there to have sexual intercourse with the said Francis Butler,” and the additional allegation that “Francis Butler was not the wife of the defendant,” this sufficiently informs the defendant of the sex of the person upon whom the alleged assault was committed.

Where the name of the person alleged to have been assaulted is one usually applied to females, the rule is well-established that the additional allegation that such person is a female is unnecessary. State v. Hussey, 7 Iowa, 409; State v. Warner, 74 Mo. 83; State v. Farmer, 26 N. C. 224.

It may also be said to be a well-established rule that an indictment for rape or assault with intent to commit rape is sufficient without the use of the term “female,” if by other words it shows the sex of the person assaulted. Joice v. State, 53 Ga. 50; Battle v. State, 4 Tex.' App. 595, 30 Am. Rep. 169; Carter v. State, 78 Tex. Cr. R. 240, 181 S. W. 473.

In all cases where the information charging rape or assault to rape has been held to be sufficient without the use of the term “female,” the allegations of the information have described the assaulted party by names such as are generally borne by women, or else the pronoun “her,” or some similar allegation, has been used, which clearly indicates that the person alleged to have been assaulted was a female. In none of the adjudicated cases has this court discovered an indictment or information wherein the name of the assaulted party is that used to designate either a male or female person, with no other allegation as to sex except that the person alleged to have been assaulted “was not the wife of the defendant.”

The word “Francis” is spelled in this information in its masculine form. To allege that “Francis Butler” was not the wife of the defendant is not equivalent to an allegation that “Francis Butler” was a female person; yet there is no other allegation contained in the information which even hints at the sex of “Francis Butler.”

The statutes of this state require the information to be direct and certain as to the offense charged and as to the particular circumstances thereof. Section 5739, Revised Laws 1910.

It is true that descriptive averments in an indictment or information only become material when they involve the merits of the case. Ostendorf v. State, 8 Okla. Cr. 361, 128 Pac. 143.

One of the essential elements of the crime of rape is an allegation that the person alleged to have been raped is a female, or else other allegations which reasonably show that such person is a female. An indictment or information which attempts to charge the crime either of rape or assault with intent to rape must allege facts sufficient to show that the alleged crime was committed against a female person.

■The information in this case is wholly deficient in this respect. It fails to allege that “Francis Butler” was a female child and the spelling of the word “Francis” with ah “i” instead of an “e” could not, under the most violent presumption, be intended as the designation of a female person in the absence of the use of the pronoun “her,” or some similar expression to denote the feminine gender.

It is essential, where the charge is that of assault with intent to rape, that the indictment or information affirmatively disclose by proper allegations that the subject of the alleged assault was a person upon whom the crime of rape could be committed.

It is the opinion of the court, therefore, that the information in this case is insufficient to charge the offense of.assault with intent to rape a female, and that the trial court should have sustained the demurrer to the information and directed one to be filed charging the crime to have been against a female, and also should have required the allegations with respect to the manner of the assault to have been more specifically set out in the information.

For the reasons stated, the judgment of conviction is reversed and the cause reftianded, with instructions to sustain the demurrer to the information, and for further proceedings not inconsistent with this opinion.

DOYLE, P. J., and ARMSTRONG, J., concur.


author: DOYLE, P. J.

text:
    SARAH PALMER v. STATE.
    No. A-2988
    Opinion Filed Feb. 21, 1920.
    (187 Pac. 502.)
    (Syllabus.)
    1. HOMICIDE — Mamslaughter in First Degree — Sufficiency of Evidence. In a prosecution for murder, the evidence reviewed, and held sufficient to sustain the conviction of manslaughter in the first degree.
    2. HOMICIDE — Admissibility of Dying Declarations. Dying declarations, to be admissible, mlust be made under a sense of impending death, but it is not necessary that the declarant state that he is expecting immediate death. It is sufficient if, from all the circumstances, it satisfactorily appears that they were made under that sanction.
    3. SAME — Question for Court. It is the province of the court to determine, in the first instance, the admissibility of declarations offered in evidence as dying declarations, and for the purpose of proving the declarant’s sense of impending death, expressions or statements of the deceased are always admissible if made at or about the time the dying declarations were m'ade.
    4. EVIDENCE, — Res Gestae — Homicide. On a trial for murder declarations of the deceased made under such circumstances as will raise the reasonable presumption that they are the spontaneous utterances of thought created by or springing out of the homicidal act, and made so soon thereafter as to exclude the presumption that they are the result of premeditation and design, and without knowledge of which the principal fact might not be properly understood, are admissible as part of the res gestae.

      Appeal from, District Court, Okmulgee County; Ernest B. Hughes, Judge.

    Sarah Palmer was convicted of manslaughter in the first degree, and she appeals.
    Affirmed.

      J. S. Eaton, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Sarah Palmer, herein referred to as defendant, was informed against for the crime of murder alleged to have been committed in Okmulgee county September 19, 1916, by shooting with a pistol one Jack Wheeler. The jury found her guilty of manslaughter in the first degree, and fixed the term of her imprisonment in the penitentiary at four years. From the judgment rendered on the verdict an appeal has been duly prosecuted to this court.

It appears from the testimony that defendant and deceased, negroes, lived in a two-room house in the city of Okmulgee for four or five months preceding the homicide. Between 8 and 9 o’clock in the forenoon on the date alleged defendant shot deceased with a large calibre pistol. The ball entered the right breast and came out in the small of the back below the left shoulder. From the effects of the wound death occurred about 4 o’clock the next day.

The theory of the prosecution appears to have been that the killing was deliberate. The defendant sought an acquittal of the charge against her on the ground that the homicide was accidental.

. The proof on the part of the state as to the circumstances of. the killing was confined to declarations of the deceased, which evidence was admitted over the objections of the. defendant on the ground that no sufficient foundation had been laid, in 'that it did not appear that they were made under a sense of impending death.

The record shows that preliminary to offering the declarations, in the absence of the jury, the state offered evidence showing the nature'of the wounds and at the time blood was gushing from his wounds; that the attending physician told him that he was in bad shape, and that he was liable to die; that if he had any statement to make he had better make it; that deceased talked with difficulty and said he was in an awful shape and that he thought he was going to die; that he was then raised up in bed and made the declarations admitted in evidence. Evidence was then offered on the part of defendant tending to show that deceased did not say at the time of making the declarations that he was conscious of impending death, and that on the next day, shortly before he died, deceased said in response to a question “that he thought he was all right,” and that at that time he did not say anything about dying.

The court ruled:

“So far as the testimony shows, the declaration is admissible both as a dying declaration and as a part of the res gestae; the testimony shows that the statement was. made only a few minutes after the shooting, and in all reasonable probability before deceased had time to deliberate and make up a false statement.”

The jury was recalled. Three or four witnesses testified that while they were holding him up in bed deceased made statements substantially as follows:

“I got up that morning and went over to town to get some things for breakfast, and on my way over I went through Martha Henderson’s yard and spdke to Martha Henderson, and on Returning home Sarah accused me of flirting with Martha, accused me of fooling around with her, and I denied it. Sarah went ahead getting breakfast, and I went out and got a bucket of water and came back into the house and sat down to breakfast, and Sarah went into the other room and came back and says, T will kill you and I know you won’t fool around her,’ and she shot me.”

Defendant came into the room and said, “Jack, it was an accident,” and deceased answered by saying, “Accident, hell.”

Counsel for the defendant then moved to strike the testimony on the grounds that it was incompetent and irrelevant, and no proper foundation was laid for the admission of said testimony, either as a dying declaration or as a part of the res gestae, which motion was overruled and exception allowed.

The rule is universal that before dying declarations can be. admitted in evidence it is essential and is a preliminary fact to toe proved by the party offering them in evidence that they were made under a sense of impending death. It is the duty of the court to determine in the first instance the admissibility of declarations sought to be introduced as dying declarations, and the court must pass upon the competency of such evidence as a question of law, or, as some courts hold, as a mixed question of law and fact. In laying the predicate for the admission of dying declarations, the expressions or statements of the deceased are always admissible if made at or about the time the declarations were made, or even if made before or after the making of the declarations. Morehead v. State, 12 Okla. Cr. 62, 151 Pac. 1183, Ann. Cas. 1918C, 416. It is sufficient if it satisfactorily appears that they were made under a sense of impending death, whether it be directly proven by the express language of the declarant, or be inferred from his evident danger, or the opinions of medical attendants stated to him, or from other circumstances of the case, such as the length, of time elapsing between the making of the declarations and'his death. Poling v. State, 12 Okla. Cr. 27, 151 Pac. 895, Ann. Cas. 1918E, 663.

We are clearly of the opinion that the statments made by the deceased were properly admitted in evidence as dying declarations. We are also of the opinion that the declaration of the deceased made shortly after the fatal shot was fired was competent' and admissible as part of the res gesfae. No fixed measure of time or distance from the main occurrence can be established as a rule to determine what shall be part of the res gestae. Each case must necessarily depend upon its own circumstances to determine whether the facts offered were really part of the same continuous transaction. If the declarations appear to spring out of the transaction, if they are voluntary and spontaneous, and made at a time so near to it as reasonably to preclude the idea of design, then they are to be regarded as contemporaneous. Offitt v. State, 5 Okla. Cr. 48, 113 Pac. 554.

“And again the rule is well stated that if such declarations ‘are made under such circumstances as will raise the reasonable presumption that they are the spontaneous utterances of thought created by or springing out of the transaction itself, and so soon thereafter as to exclude the presumption that they are the result of premeditation and design, they will be admissible as part of the res gestae.’ ” Moorehead v. State, supra.

As a witness in her own behalf defendant testified:

“We lived together five months. I thought lots of him, and Jack and I were to get .married. I fired the1 shot that killed Jack Wheeler. I did it accidentally. He came and asked me to cook him, a hurry-up breakfast. Pie said he had to go to court, and when he came back from court he was going to Beggs and was going to carry the gun with him. I fixed breakfast while he shaved. He came -into the room with the gun in his hand. I asked him,' ‘Aren’t you ready to eat now,’ and he said, ‘Well, I have got to get some rags and clean the gun.’ I says, ‘I would let the gun go and eat,’ and he sat down to the table. I walked to the table and asked him, ‘Jack, what are you going to do with this gun,’ and picked the gun up. It struck the lamp and went off. I do not know whether he had the gun cocked or not. I picked the gun up carelessly without any idea in my mind of firing the gun. When the gun went off he jumped up straight from the table, and hollered, ‘Oh, I’m shot!’ I says, ‘I will call a doctor,’ and I led him from the kitchen into the bed room and told him to sit on the bed. I ran out of the kitchen door. About half a block I met Mr. Morris, and ran into his house and says, ‘What is Dr. Berry’s number; I want to call him quick. Jack is shot.’ I took the phone down and told information to call some doctor, I did not care who, and then ran back to the house. Mr. Morris and his brother William Morris were leaning over him; then the doctors came and called for some water and a towel, and Mr. Pettit said, ‘How did it happen?’ I said, T shot him accidentally.’ I says, ‘He did not tell you I did not shoot him accidentally?’ and he said, ‘Yes; he did;’ and I said, ‘Let me go and hear him.’ He told me to stay out and I did so.”

Counsel for the defendant objected to and took exceptions to the instructions given by the court submitting the issue of manslaughter in the first degree. It is now urged that there was no evidence tending to show manslaughter in the first degree, and that under the evidence m the case the jury should have returned only one of two verdicts, namely, guilty of murder, or not guilty.

The charge of the court contains 16 instructions. The court instructed the jury as to the crime charged and the p'lea entered, and gave the' instructions excepted to as follows :

No. 6: “The jury are instructed that homicide'is manslaughter in the first degree when perpetrated without a design to effect death and in the heat of passion, but in a cruel and unusual manner or by means of a dangerous weapon, unless it is committed under such circumstances as constitute excusable or justifiable homicide.”

No. 7: “You are instructed that both murder and manslaughter are unlawful killings. The distinction is that in murder there is a premeditated design to effect death, while in manslaughter there is no premeditated design. If there is a premeditated design to effect death, homicide is murder, no matter how angry the slayer may be at the time of the homicide.”

No. 8: “The jury are instructed that homicide is excusable when committed by accident or misfortune or in the doing of any lawful act by lawful means, with usual and ordinary caution and without any unlawful intent.”

No. 9: “The jury are instructed that the defendant in this case is presumed to be innocent of the crime charged in the information, and this is a presumption of law that remains with her and is thrown around her for her protection up to the moment when the killing is proved or admitted. When the killing is proved or admitted by the defendant, and the plea of accidental killing i,s interposed, as in this case, it then devolves upon the defendant to show any circumstances of mitigation to excuse or justify it by some proof strong enough to create in your minds a reasonable doubt of her guilt of the offense charged, unless the proof on the part of the state shoves that the defendant was excusable in committing the act.”

No. 10: “The jury are instructed that, if they find and believe from the evidence in this case beyond a reasonable doubt that the defendant, Sarah Palmer, in the county of Okmulgee, state of Oklahoma, on or about the 19th day of September, 1916, or at any time before the filing of the information herein, did, in the manner and form, and with purpose and intent and de'sign charged in the information, shoot and kill the deceased, Jack Wheeler, and that said killing when perpetrated was done with a premeditated design to effect the death of said Jack Wheeler, and that the said defendant unlawfully and with such premeditated design to effect the death of the said Jack Wheeler, did shoot and kill him, the said Jack Wheeler, then it will be your duty to find the defendant guilty as charged in the information. On the other hand, if there remains in your mind a reasonable doubt as to the existence of any material fact necessary to constitute the crime of murder as herein instructed, then it will be your duty to acquit the defendant unless you should find that she is guilty of manslaughter in the first degree as hereinafter instructed.”

No. 12: “Gentlemen of the jury, if after a consideration qf all of the evidence in this case there remains in your mind a reasonable doubt as to whether the defendant is guilty of the crime of murder as herein instructed, then you may next inquire whether or not she is guilty of manslaughter in the first degree. Therefore, if you find and believe from the evidence in this case beyond a reasonable doubt that the defendant, in the county of Ok-mulgee and state of Oklahoma, on or about the 19th day of September, 1916, did unlawfully shoot and kill the deceased, Jack Wheeler, but that such act of killing was perpetrated without a design to effect the death of the deceased, Jack Wheeler, and in the heat of passion, but in a cruel and unusual manner or by means of a dangerous weapon, then you will find the defendant guilty of manslaughter in the first degree and so say by your verdict. On the other hand, if you have any reasonable doubt in your minds as to whether the defendant is guilty of either murder or manslaughter in the first degree as herein instructed you, then it will be your duty to acquit the defendant.”

No. 13: “Gentlemen of the jury, if under these in-' structions you should find the defendant guilty of the crime of manslaughter in the first degree, you may proceed to fix her punishment, which you will assess at imprisonment in the penitentiary for a term of not less than four years.”

No. 14: “Gentlemen of the jury, you are instructed that the defendant in this case admits that the deceased met his death from a gunshot wound received at the time and place alleged, but says that the shooting was accidental. You are therefore instructed that, if you believe from the ■ evidence that the shooting Avas accidental, or if the evidence in the case tending to show that the same was accidental is sufficient to create in your minds a reasonable doubt as to whether said shooting was intentional, then in such case the homicide was excusable, and in either case it will be your duty to acquit the defendant.”

While we think the evidence for the state tended to prove that the killing was deliberate and was amply sufficient to support a verdict of murder, the testimony of the defendant and other facts and circumstances in evidence presented the question as to whether the homicide was perpetrated without a design to effect death. Considering the fact that defendant and deceased were not husband and wife, but were sustaining that relation, and that defendant accused the deceased of flirting or fooling that morning with another woman, it may be inferred that in a fit of jealousy she picked up the gun and shot him. However, it may be she did not shoot With intent to kill, but only to frigthen, or, at most, to inflict bodily injury.

The evidence also tends to show that the homicide was ■ perpetrated without a design to effect death by defendant Avhile engaged in commission of a misdemeanor; that is, pointing a pistol, whether loaded or not, at any other person. It was therefore the duty of the court to instruct the jury upon the law of manslaughter in the first degree. Kent v. State, 8 Okla. Cr. 188, 126 Pac. 1040.

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. Cannon v. Territory, 1 Okla. Cr. 600, 99 Pac. 622.

There are other assignments of error, which we have examined and found to be without merit. A careful examination of the record convinces us that defendant has no substantial grounds of complaint, either of the rulings of the court or the verdict of the jury. Wherefore the judgment of the lower court is affirmed.

ARMSTRONG and MATSON, JJ., concur.


author: ARMSTRONG, J.

text:
    G. RADKE et al. v. STATE.
    No. A-3041
    Opinion Filed Feb. 21, 1920.
    (187 Pac. 500.)
    (Syllabus.)
    L HOMICIDE — Parties—“Principal”—Aiding or Abetting. One who aids or abets in perpetrating a homicide is guilty as a “principal.”

      2. SAME. Where three persons willingly and jointly engage' in an attack upon another, ox two. of them abet the other in making such attack, in which a blow is struck by one of the attacking parties which results in the death of the party attacked, all of the attacking and abetting parties are liable for the homicide resulting, regardless of which of them struck the fatal blow.
    3. TRIAL — Directed Verdict — Right to. Where there are facts from which the jury can legitimately deduce either of two conclusions, a motion for a directed verdict should always be denied.

      Appeal from District Court, Washita County, Thomas A. Edwards, Judge.

    Gottfried Radke and R. Rjeinholdt Radke were convicted of manslaughter in the first degree, and they appeal.
    Affirmed.

      Massingale & Duff, for plaintiffs in error.
   ARMSTRONG, J.

Plaintiffs in error, Gottfried Radke and Reinholdt Radke, hereinafter called defendants, were jointly informed against with Jacob Roesler for the murder of Mattius Kempf, jointly tried and convicted of manslaughter in the first degree, and each sentenced to imprisonment in the penitentiary at McAlester for a term of four years. To reverse the judgment rendered, they prosecute this appeal.

The uncontradieted evidence is: That the deceased came to his death from a blow struck upon his head which fractured his skull. The blow was inflicted with a heavy blunt instrument. The other material testimony is in irreconcilable conflict. The evidence on the part of the state shows that the defendant Roesler struck the deceased, and he and the deceased engaged in a fight in which Roesler cut the deceased. The first fight ended,' and the deceased and the defendant separated. Shortly after the termination of this difficulty another of the defendants, Gottfried Radke, appeared on the scene coming from his home, which was near by, armed with a gun, which he pointed towards and threatened to shoot deceased, asking the defendant Roesler if he should do so. Roesler replied, “Shoot himi shoot him!” and the defendant Gottfried Radke pulled the gun back and hit the deceased over the head, and the deceased jerked the gun out of his hands and hit him, and another fight ensued in which the three defendants joined, each being armed with a club, and Roesler hit the deceased with a club about two feet long and three inches thick and Knocked him down, and the three defendants continued to beat him. All of them, after the deceased was down and unconscious, were upon and pounding him. That .the deceased in an unconscious state remained lying upon the ground, and Roesler applied water to and washed the blood off his face until the arrival of several persons, when the deceased was removed to his home, and shortly thereafter taken to a hospital in Clinton, where about five hours after being struck and rendered unconscious he expired from the effects of the blow upon his head which fractured his skull. That the deceased was not armed just prior to or at the time he received his mortal wound.

The three defendants each testified in their own behalf, and positively denied every material part of the evidence of the state which in any way tended to incriminate them or either one of them as guilty of the offense charged; also that the deceased sought and brought on the difficulty which resulted in his death; that the deceased and the two Jointz boys, each armed with a club, were fighting Roesler; and that neither one of the other defendants was engaged in the fight which resulted in the death of the deceased.

Upon the conclusion of the evidence each of the defendants separately requested the court to instruct the jury to find each of them not guilty, which the court refused to do, and each of the defendants separately excepted.

The defendants requested the court to give the jury the following instruction :

“No. 7: You are further instructed that, if you believe from the evidence that one of the defendants on trial killed the deceased, Mattius Kempf, but entertain a reasonable doubt as to which of the defendants killed the deceased, then each of the defendants is entitled to the benefit of the doubt and should be acquitted, unless you further find from the evidence beyond a reasonable doubt that a conspiracy or combination existed between the defendants to kill the deceased or to commit an unlawful act upon him, qnd in pursuance of such conspiracy or combination the deceased was killed.”

The following are the only alleged errors discussed in defendants’ brief:

(1) Refusal of the court to direct the jury to return a verdict of not guilty as to each of said defendants Gottfried and Reinholdt Radke.

(2) Refusal of the court to give the jury requested instruction No. 7.

It is strenuously argued by defendants, and numerous authorities cited in support of their argument, that the court committed reversible error in refusing to instruct the jury to return a verdict of acquittal for each of said defendants for the reason that there is not sufficient evidence to support their legal conviction. This argument we think unsound.

While the material evidence, except as to the cause of the homicide, which is admitted, is in direct conflict as to the defendants having participated in the attack upon the deceased which resulted in his death, there is evidence that they and each of them at the time the fatal blow was struck were aiding the nonappealing defendant in his fight with the deceased, that all three of them were on' top of him beating him with clubs, that it was a mutual combat in which all three of the defendants engaged in aid of the nonappealing defendant, and hence there was a question of fact which the jury alone could legally determine, and therefore the court did not err in refusing to direct a verdict for the defendants or either of them.

The jury being the exclusive triers of the facts, where, as in the instant case, there is evidence, though there is evidence in direct conflict therewith, that the defendants willingly engaged in and aided the nonappealing defendant in an attack upon the deceased which resulted in his death, a request for a directed verdict should always be denied. When the evidence presents facts from which the jury can legitimately deduce either of two conclusions, the conclusion which they adopt must not be directed by the court.

That the jury found the controverted facts against the evidence of the defendants and further found that the defendants aided and abetted in the death of the deceased is necessarily shown by the verdict returned.

“All persons concerned in the commission óf a felony, whether they directly commit the act, * * * or aid and abet in its commission, * * * must be prosecuted, tried and punished as principal's.” Section 5757, Revised Laws 1910.

In Weatherholt v. State, 9 Okla. Cr. 161, 131 Pac. 185, it is held:

“One who is present, aiding and abetting in a murder, is guilty as a principal, though another does the killing.”

The court did not err in refusing to direct a verdict for the defendants or either one of them.

It being admitted by defendants that deceased came to his death from a blow on his head, and there being evidence that the blow was inflicted at a time that all three of the defendants were jointly engaged in an attack upon the deceased, it was immaterial which one of them inflicted the blow, as each of them is liable for the act, and all of them subject to trial and conviction for the death of the deceased, regardless of which of the defendants inflicted the fatal blow; hence the court did not err in refusing to give the jury requested instruction numbered 7.

The judgment of the trial court is affirmed.

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


text:
    JAMES HOBBS v. CITY OF PAWHUSKA.
    No. A-2883
    Opinion Filed Feb. 21, 1920.
    (187 Pac. 258.)
    (■Syllabus.)
    INTOXICATING LIQUORS — Keeping Tippling House — Sufficiency of Evidence. The entire record carefully considered, and the evidence found to sufficiently sustain the verdict rendered, and the trial of the case free from prejudicial error.

      Appeal from, County Court, Osage County; Paul B. Mason, Judge.

    James Hobbs was convicted of violating an ordinance of the city of Pawhuska, prohibiting the keeping of a tippling sho-p, as defined by said ordinance, and he appeals.
    Affirmed.

      Robert S. Stuart, for plaintiff in error.

      R. B. Boone, for defendant in error.
   ARMSTRONG, J.

This prosecution was instituted against the plaintiff in error, James Hobbs, hereinafter called defendant, in the police court of the city of Pawhuska, for the violation of an ordinance prohibiting the keeping of a tippling house, which is defined in said ordinance as follows:

“A tippling shop is hereby defined to be a room, building, tent,, street, cab, vehicle, automobile, or any place where intoxicating liquors of any kind, character or description, are manufactured, sold, bartered, or given away,” etc.

The same section further says:

“Intoxicating liquors as used in this ordinance are here' by defined to include any spirituous, malt, vinous, fermented, or other intoxicating liquors, including what is known as-ginger, hard cider, bitters, patent medicines, containing more than two per cent, alcohol or any other liquid or solid that'will produce or cause intoxication.”

The defendant was convicted in the police court, fined $15 and costs, and from the conviction took an appeal to the county court of Osage county, where he was tried de novo, again convicted and fined $15 and costs.

We deem it unnecessary to cite the voluminous evidence, most of which was incompetent, and, had it been objected to, should have been excluded. We think it sufficient to say that the defendant testified that he was engaged in the grocery business in the city of Pawhuska, and purchased and had in his place of business one-half of a gross of bottles of Jamaica ginger, that he took much of the Jamaica ginger as a medicine, sold about a dozen bottles of it, and gave away other bottles. Some of the bottles of Jamaica ginger taken from the store of the defendant by the officers, which the labels thereon stated contained 90 per cent, of alcohol, were put in evidence by the .state.

Upon the conclusion of the evidence for the city, the defendant requested the court to direct the jury to acquit the defendant, which the court refused to do, and the defendant excepted.

There is only one material contention insisted upon in defendant’s brief, which is that the evidence is insufficient to support the verdict of the jury. This contention is without merit, as the evidence of the defendant shows his guilt as charged beyond a reasonable doubt, and we are at a loss to understand why this appeal should have been taken.

The judgment of the trial court is affirmed.

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


text:
    ED. STORY v. STATE.
    No. A-2959
    Opinion Filed Feb. 23, 1920.
    (187 Pac. 508.)
    (Syllabus.)
    APPEAL AND ERROR — Time—Misdemeanor .Case. An appeal in a misdemeanor case must be taken within 60 days from the rendition of the judgment appealed from by filing with the clerk of this court a petition in error, with case-mjade or transcript pf the record attached, with proof of notices of appeal, unless the time in which such appeal may be perfected is extended as authorized by section 5991, Rev. Laws 1910; and, when an appeal is not so perfected, this court does not acquire jurisdiction of the appeal, and such attempted appeal will be dismissed.

      Appeal from County Court, Woodward County.

    Ed Story was convicted of violating the prohibitory liquor laws, and he appeals.
    Appeal dismissed and cause remanded, with instructions.

      R. H. Nichols, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State. ^
   ARMSTRONG, J.

Plaintiff in error, Ed. Story, was informed against for unlawfully conveying intoxicating liquor from one to another place in this state, convicted and sentenced to imprisonment in the county jail for 30 days, and to pay a fine of $50. To reverse the judgment rendered he attempted this appeal. >

The judgment and sentence was pronounced on the 31st day of December, 1916, and on March 17, 1917, a petition in error with case-made attached, with proof ot notices of appeal, was filed with the clerk of this court.

“The Attorney General made a motion to dismiss the appeal upon the ground that the appeal was not timely taken. An examination of the record disclosing that the appeal had not been filed within 60 days of the rendition of the judgment, an opportunity was given the defendant to, if it could be done, have the record amended nunc 'pro tunc, as to show that the time in which to perfect the appeal was extended, and ample time has expired to have the same made and filed, and such amendment has not been offered.

We are impressed that the attorneys of the defendant acted upon the theory that the order made, extending the time in which to make and serve the case-made, automatically extended the time in which to file the appeal in this case in this court. Such theory is not correct, since the extension of time in which to make and serve a case-made and the time in which to file the appeal are in separate sections of the statutes, neither making any reference to the other, are ‘plain mandatory provisions, each of which must be complied with before this court acquires jurisdiction to review the judgment of trial court on appeal. Stumpf v. State, 6 Okla. Cr. 159, 117 Pac. 648.

“An order made by a trial court, extending the time within which to make and serve a case-made, does not automatically extend the time within which to file the appeal. All such orders should cover both the time .within which to make and serve case-made, and the time within which to file the appeal, as provided in sections 5991 and 6007, Revised Laws. Both these sections must be complied with.” Holly v. State, 16 Okla. Cr. 164, 181 Pac. 518; Pinchback v. State, 14 Okla. Cr. 302, 170 Pac. 714. (Section 6007, referred to in the above cited cases, is a misprint, and should read section 5244.)

Sixty days having elapsed from the rendition of the judgment attempted to be appealed from to the filing of the appeal in this court of the petition in error with case-made attached and proof of notices of appeal, and it not appearing from the record that the time in which to perfect the appeal has been extended, this court did not acquire jurisdiction of the appeal. Hamlin v. State, 12 Okla. Cr. 321, 155 Pac. 904; Bandy v. State, 5 Okla. Cr. 397, 114 Pac. 341.

The attempted appeal not having been filed in this court within the time provided by law, the motion to dismiss the attempted appeal is sustained. It is so ordered, and. the cause remanded to the county court of Woodward county, with instructions to enforce the judgment and sentence.

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


text:
    JOHN McGARRAH v. STATE.
    No. A-3141
    Opinion Filed March 1, 1920.
    (187 Pac. 505.)
    (Syllabus.)
    1. APPEAL AND ERROR — Discretion of Trial Court — Withdrawing Plea of Not Guilty. A trial court may in its -discretion permit a plea of not guilty to be withdrawn for the purpose of allowing the defendant to file a motion to- set aside an information, ■and the denying of such a reguest -will not be reviewed upon appeal unless an abuse of discretion is shovm or appears from the circumstances.
    2. EVIDENCE — “Confession”—Statement that Another Committed the Crime. A statement, declaration, or admission made by a person accused of erimje, tending to show that another than he eomrujtfpd the offense with which he is charged, from which statement the jury may or may not infer the guilt of the defendant, is not a “confession,” and does not come within the rule that confessions must be voluntary to be admissible.

      Appeal from District Court, Cleveland County; F. B. Swank, Judge.

    John McGarrah was convicted of the larceny of an automobile, and he appeals.
    Affirmed.

      Harris & Nowlin and Pruitt, Sniggs & Patterson, for plaintiff in error.
    S'. Pi Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, John Mc-Garrah, hereinafter called defendant, was informed against jointly with A. E. Hawkins fo'r the larceny of an automobile, the property of one A. Gibbs, a severance was granted, the defendant tried separately, convicted, and sentenced to imprisonment in the penitentiary at Mc-Alester for a term of two years. To reverse the judgment rendered on the verdict he prosecutes this appeal.

The record shows that the defendant and his code-fendant were arraigned on preliminary examination charged with the theft of the automobile described in the complaint and waived preliminary examination, and that, notwithstanding such waiver, the ,state examined its witnesses, and after such examination the defendants were given an opportunity to offer evidence and again waived preliminary examination.

The defendant, having entered a plea of not guilty, moved the court for permission to withdraw the plea and be permitted to file a motion to set aside the information, for the reason that he had not had a preliminary examination, and be permitted to offer evidence that he had waived his preliminary examination by reason of an agreement with the county attorney. The court overruled the motion, and the defendant excepted.

There is evidence tending to show: That on the 28th day of January, 1917, the automobile which was the subject of the larceny was owned as alleged in the information, that the owner of the automobile, not having a garage, chained and locked the automobile to a tree near his residence in Norman, and that on the 29th day of January, 1917, the automobile was in an outhouse in an outlying district of Oklahoma City, and the defendant got his codefendant and brought the car into a garage in said city, that the number of the engine of the automobile had been changed, and that the defendant' and his code-fendant sold it, claiming to have purchased it, and delivered it to the purchaser assuring him that the purchase was a safe one, and divided the proceeds of the sale. That a few weeks thereafter the automobile was found in a distant part of the state in the possession of the person to whom the defendant and his codefendant had sold it, unquestionably indentified as the car in question, and surrendered by the purchaser to the owner. That on the day of the night that the automobile was stolen the defendant and his codefendant were in Norman, and sought to buy a saw adapted to sawing iron.

John Stegner testified that he was court clerk and had visited the jail when the defendant was confined therein for the offense here charged and had seen and conversed with him and his codefendant. Thereupon the state asked the witness to detail the conversation had with the defendant and his codefendant, to which the defendant objected upon the ground “that a certain promise had been made with him which had not been carried out,” and that therefore the statements made by the defendant in the conversation inquired about were not voluntarily made. In support of the objection and in the absence of. the jury, the defendant introduced evidence tending to show that the statements made to the witness were made under a promise by the county attorney to grant the defendant immunity if the defendant would furnish certain information, which information the defendant had furnished, and that the evidence sought to be elicited as to the conversation had by witness and defendant was furnished by the defendant under the agreement with the county attorney.

The county attorney testified that he conversed with the defendant in the jail at the time he was confined under the charge in this case, and that he stated to him that anything that he (defendant) might say could be used against him, and denied that he promised the defendant immunity or any consideration. The court overruled the objection, and the defendant excepted.

The jury being returned to the box, the witness testified : That the defendant said that he and his codefend-ant were not the real thieves of the Bibbs car, “that the bunch stole it,” that they knew that it was a “wet” car, that they knew that it was not a straight car, that one Anthony came to defendant and his codefendant, and said they had another car for them, that the number of the car had been changed, that it was out in a dugout in the outskirts of Oklahoma City that they bought the car, and went out and got it and brought it to a garage in the city and sold it.

The defendant testified that he had not been in Norman since 1905, that he never attempted in Norman to buy a saw for cutting iron,- that he did not steal the car in question, that he and his codefendant purchased the car from one Anthony and received a bill of sale for same and sold the car in Oklahoma City to the party from whom the car was recovered, and that he and his codefendant divided the proceeds of such sale, that he did not know at the time they sold the car that the same was stolen, but afterwards learned it was.

Upon the close of the evidence for the state, the defendant requested the court to instruct the jury to return a verdict for the defendant, which the court refused to do, and the defendant excepted.

The defendant timely moved for a new trial, which was overruled and exception saved.

Many errors are assigned, but only the following are argued in the brief of the defendant:

1. The refusal of the court to permit the defendant to withdraw his plea of not guilty and to file a motion to quash the information and to take evidence upon such motion to quash.

2. Forcing the defendant to trial without his first having had a preliminary examination, or having waived the same. •

3. Permitting the witness Stegner to testify to an alleged confession made by the defendant, because the same was not voluntary.

4. That the verdict of the jury is contrary» to the law and evidence.

Under an unbroken rule of this court, errors assigned but not argued in defendant’s brief will be treated as abandoned and not considered.

The defendant urges that the court committed re versible error in refusing to permit the defendant to withdraw his plea of not guilty and to file a motion to set aside the information. It was discretionary with the court to permit the plea to be withdrawn, and we are unable to see that, in refusing to permit the plea to be withdrawn as requested, the court abused its discretion.

In Tegeler v. State, 9 Okla. Cr. 138, 130 Pac. 1164, it is said:

“It is discretionary with the court to permit the withdrawal of a plea of not guilty for the purpose of allowing a defendant to file a motion to set aside an indictment, and such action will not be reviewed upon appeal, unless an abuse of this discretion is shown.”

It is iui. Jier contended by the defendant that the court committed reversible error in forcing him to trial without his having had or waived a preliminary examination. This contention is without merit. The record shows that, when his preliminary examination was called, he waived it; but, notwithstanding the waiver, the state put on its testimony, and upon its close the defendant was offered an opportunity to present his evidence, when he again waived. There is nothing disclosed by the record that tends in the least to show that the defendant was induced in any way, or by any action of the county attorney, to waive preliminary examination, or that such waiver was in any way injurious to the defendant.

It is next insisted that the court committed reversible error in permitting the witness Stegner, over the objection of the defendant, to detail a conversation had with the defendant while he was in jail, based upon the theory that the statements made by the defendant in the conversation were a confession and were not voluntary. The premise of the defendant is unsound, as the statements made by the defendant in the conversation were not a confession of the crime charged, but were statements tending to explain his innocence and .did not come within the rule that confessions must be voluntary to be admissible.

In criminal law a “confession” is a voluntary statement made by a person charged with the commission of a crime, communicated to another person, wherein he acknowledges himself to be guilty of the offense charged.

In State v. Reinhart, 26 Or. 466, 38 Pac. 822, it was said:

“A ‘confession,’ in a legal sénse, is restricted to an acknowledgment of guilt made by a person after an offense has been committed, and does not apply to a mere statement or declaration of an independent fact from which such guilt may be inferred.”

In Wilson v. State, 17 Okla. Cr. 49, 183 Pac. 613, it is said:

“A statement, declaration, or admission made by one accused of crime, explaining suspicious circumstances, for his own defense, from which the jury may or may not infer guilt, is not a confession, and does not come within the rule that confessions must be voluntary to be admissible.”

Certainly the statements made to the witness Steg-ner by the defendant were not, under the above authorities, a confession of guilt, and the court did not err in admitting them.

Finally, it is insisted that the verdict is contrary to the law and the evidence. It is true that much of the evidence is circumstantial and other part of it is in direct conflict, but the facts thus presented were exclusively for the jury to determine, and having done so, and there being sufficient evidence to sustain the verdict found by them, we cannot interfere with the verdict rendered.

If the contention of the defendant that he did not participate in the actual commission of the larceny charged be accepted as true, certainly the most favorable view that can be indulged in his behalf is that he aided and abetted in the larceny, and therefore is guilty as a principal. Section 5757, Revised Laws 1910.

The court did not err in refusing to direct a verdict of acquittal.

The court did not err in overruling the motion for a new trial.

The judgment of the trial court is affirmed.

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


text:
    STATE v. ROY WILKS.
    No. A-3347
    Opinion Filed March 1, 1920.
    (187 Pac. 813.)
    (Syllabus.)
    1. EVIDENCE — “Confession”—Statement Not Admitting Guilt. A statement made by a defendant in regard to a crime charged which, does not admit his guilt is not a confession, and is not subject to the rule that to ,be admissible such statement must first be shown to have been "voluntary, nor is such statement inadmissible because prior to mating same a defendant was not warned that any statement made by him could be used against •him.
    2. EVIDENCE — Corroboration of Accomplice. A conviction cannot be had on the uncorroborated1 evidence of an accomplice, and it is not sufficient corroboration to mierely connect a defendant with the accomplice in the crime, but evidence, independent of the testimony of the accomplice, must tend to connect a defendant with the crime itself, and' not simply with its perpetrators.

      Appeal from. District Court, Pottawatomie County; Charles B. Wilson, Jr., Judge.

    Roy Wilks was tried for robbery and was acquitted in the district court of Pottawatomie county, .and the State appeals on questions of law reserved for review on appeal.
    Affirmed.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

This is an appeal taken by the state from the district court of Pottawatomie county upon the following questions of law reserved by the state in the trial of Roy Wilks, who with others was informed against for robbery, tried separately, and acquitted:

First. The exclusion of the evidence of the sheriff as to a statement made by the def endant to him.

Second. The court’s" advising the jury to acquit the defendant.

The evidence of the state fully proves that the robbery was committed as charged in the information, but the connection of the defendant, who was shown by the evidence to have been engaged in the business of auto livery, with the perpetration of. the robbery, was not shown by other evidence than that of accomplices who admitted their guilt.

T. J. Darden testified that he was the sheriff of Pottawatomie county, and that he had had the defendant in custody since the Saturday night following the robbery, that he had had a conversation with him in the jail, and was asked to recite the conversation, to which an objection was interposed and the jury withdrawn from the courtroom. In the absence of the jury the witness further testified that he, without the request of the defendant so to do, had him brought from his cell in the jail to the office of the jail, where at the time the assistant county attorney, Mr. Durham, was, and told the defendant that he did not have to talk to them unless he wanted 'to, that he did not, and he did not hear Mr. Durham warn the defendant that any statement made, by him could be used against him; that the defendant was asked by Mr. Durham, in the presence of witness, if he knew where he was going when he went out there, and answered “yes”; that Mr. Durham asked the defendant another question, to which the defendant replied, “You must think I am a fool”; that practically the only statement the defendant made was “that he knew where he was going”. The court sustained the objection to the evidence, and the state excepted. Thereupon the state offered to prove by said witness that witness and Mr. Durham, the assistant county attorney, had had a conversation with the defendant in which the defendant stated, in substance, that he knew where he was going that night, meaning on the night that the robbery was committed, and that the defendant and one of the Yarber boys remained in the car about a quarter of a mile from the scene of the robbery, while the other Yarber boy and the Havill boy went to the house, and that they remained at the car until the Yarber boy and the Havill boy returned. The court then asked the county attorney, “You are going to undertake to prove a conversation between you and Mr. Darden and the defehdant under the circumstances related by Mr. Darden in his voir dire examination, are you ?” to' which the assistant county attorney replied, “Yes, sir, and that the defendant stated in substance that he went in the capacity of a liveryman, and that he received pay as such.” To the admission of this evidence the defendant objected, and the court sustained the objection, and the defendant excepted.

The state having rested, the defendant moved the court to advise the jury to return a verdict of not guilty, which motion the court sustained and the state excepted.

. We are of the opinion that the statement made by the defendant to the sheriff and the assistant county attorney in the jail “that he knew where he was going when he went out there,” was not a confession of guilt, especially when it is remembered that the defendant was engaged in the livery business. That the defendant had knowledge of where he was going was consonant with his innocence, and therefore the statement was not subject to the rule that, to be admissible, it must be shown that it was voluntarily made. Wilson v. State, 17 Okla. Cr. 49, 183 Pac. 613, and authorities there cited.

The offer to prove by the sheriff, after his rigid examination, in whch he testified that practically the only statement made to him by the defendant in the presence of the assistant county attorney was .that the defendant knew where he was going, other statements made at the same time, was in effect an offer to contradict the testimony of the sheriff. Such offered evidence was without merit, and the court did not err in excluding the same.

While we do not approve of the procedure had in this case to endeavor to secure incriminating evidence against the defendant, we are of opinion, since the statement, tended to Show the proximity of the defendant to the scene of the robbery and, with other evidence, which the court could not rightfully anticipate would not be offered, it might be material, that the court was in error in excluding the statement, but, the state having failed to offer other evidence of the defendant having participated in the crime charged, other than the evidence of the accomplices, the exclusion of the statement made by the defendant was harmless.

If the excluded evidence of the sheriff as to the statement made by the defendant had been admitted, as we think it should have been, the only evidence the jury would have had of the defendant having participated in the robbery, other than that of accomplices, was that he knew where he was going when he went out there. Certainly, taking into consideration that the defendant was a liveryman, such evidence was not sufficient to corroborate the evidence of the accomplices and sustain the defendant’s conviction, and the court did not err in advising the jury to acquit him. There being no evidence, except that of the accomplices, tending to connect the defendant with the commission of the robbery charged, and the evidence of the accomplices not being corroborated, the court did not err in advising the jury to acquit the defendant.

Our Procedure Criminal provides (section 5884, Rev. Laws 1910):

“A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”

•See Gillam v. State, 10 Okla. Cr. 176, 135 Pac. 441; Kirk v. State, 10 Okla. Cr. 281, 135 Pac. 1156.

For the reasons stated, the question reserved by the state as to the exclusion of the evidence of the sheriff as to the statement made by the defendant to him and the assistant county attorney is held as error, and the question reserved by the state as to the trial court instructing the jury to acquit the defendant must be held adversely to the state.

Thé judgment of the trial court is affirmed.

DOYLE, P. J., and MATSON, J„ concur.