text:
    TOM BAILEY v. STATE.
    No. A-8633.
    March 9, 1934.
    (30 Pac. [2d] 714.)

      Herman S. Davis, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of robbery with firearms, and his punishment fixed at confinement in the state penitentiary for five years, and he appeals.

The testimony in this case is brief. R. J. Davis- testified on behalf of the state, in substance: “My home is in Denton, Tex.; on the 12th day of November, 1932, I was in the Santa Fe yards in Altus, Jackson county, Okla.; the defendant walked down behind the train, he was drinking, and called to me to tbe back of the car, I thought with the intention of giving me a drink; he walked on out to the back of the track a little ways and drew a gun on me and told me to stick up my hands, and went through my pockets, took out papers and money I had in my pocket, handed the papers back to- me and told me to put them in my pocket; held me a while and walked down the tracks a little ways and then called me back again looking for papers and money; he turned me loose and told me to go to the station. I went up and notified a fellow at the depot; this was between 10 and 10:30 at night. I am positive Tom Bailey, this defendant, is the man that held me up. The defendant gave me 'back the money next day after he was arrested in the state of Texas. This property was taken without my consent. I was afraid I might be injured if I did not'submit to his-'taking the money.” This is the testimony of Davis taken at the preliminary hearing.

The court advised the defendant he might cross-examine the witness, if he so desired, and defendant said:

“Well, I want to ask him if he did not tell me he was out of tobacco when I gave him the twenty cents; Mr. Bush said you ought to give it back to him, he is out of tobacco-, and I say, Well, I will give him the money for cigarettes/ you told me then you 'was broke and did not have any tobacco- money.”

This is all the question the defendant asked the witness B. J. Davis, at the preliminary hearing.

Davis positively identified defendant as being the party who held him up with a pistol and took his 20 cents.

B. E. Lawson testified on behalf of the state:

“My home is at 520 West Liveoak, Altus, Okla.; I am car inspector and work for the Santa Fe Bailroad; was on duty tbe 12th of November, 1932, at night; the defendant bears a description pretty well of the man I saw in the Santa Fe yards that night; it was a moonlight night, and he came to where I was culping up a hose on a cut of cars the train crew had shoved back; he came to' the end of the car and said, ‘Stick ’em up.’ I looked around and just over to the left about ten feet, and saw three men, and one of these men had both hands stuck up as high as he could get them; this man bears the description of the man who' was standing there right up like — and had something jammed — looked very much like a gun, in this fellow’s side, he was feeling his pockets, he was holding him with a gun; I taken it to be a gun the way it looked; I had seen this fellow prior to' that day, or at least it looked like the same fellow; I had encountered him prior to the time he held up Davis; he came over toward the engine when I started to work and begun to' hollow at me before he came close to me, and said, ‘When is that train going out? And as he got near he began talking and asking questions, and I said, ‘Fellow, I ain’t got time to> fool with you, I have to look after this train, there is a crew over there waiting for me’; and he walked close to me, and said, ‘Don’t come back at me,’ and I told him, ‘You haven’t got me beat — I got the difference too.’ He walked up to me and said, ‘When this train is made up will it be on the main line?’ ”

The defendant testified in his own behalf, and denied he held up the witness Davis in the yards at Altus the night alleged in the information, or that he had anything to- do with his being held up; says when he got to the yards a freight train was pulling out and he went on to Texas that night. He says he gave the witness 20 cents because Bush said the witness was out of tobacco and cigarettes; states that he did not own a pistol, nor did he have one with him.

O. J. Bailey, an uncle of the defendant, testified he drove the defendant to the depot that night and that a freight was pulling out and he caught the freight train, and that he was not in the railroad yards any length of time.

The defendant put his reputation in issue, as to being a law-abiding citizen; the state then called several witnesses to prove that his reputation for being a law-abiding citizen in the community in which he lived was bad. This is in substance the testimony.

The defendant has assigned four errors alleged to have been committed by the trial court, all of which are included in the first assignment of error, which is as follows :

“Said court erred in overruling said motion of plaintiff in error for a new trial.”

Section 2484, C. O. S. 1921, now section 2793 of Oklahoma Statutes 1931, relating to preliminary trials, reads as follows:

“When the defendant is brought before a magistrate upon an arrest, either with or without a warrant, * * * the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings, and also of his right to waive an examination before any further proceedings are had.”

The defendant insists that he did not have a preliminary trial within the meaning of the statute herein quoted, for the reason that he was not advised by the court of his right to counsel or his time to plead and to> cross-examine the witnesses. It is not contended by the state that before the preliminary trial was held the county judge advised the defendant of his. right to' have counsel, or if he was unable to pay counsel the court would appoint counsel to defend him, but the record shows he was advised by the court at his preliminary trial he had a right to cross-examine the witness, and he asked the prosecuting witness, R. J. Davis, one or more questions.

Under the statute it was the duty of the magistrate holding the examination to advise the defendant of his statutory rights, and a failure to do so, unless the defendant has waived the same, is a denial of the defendant’s constitutional rights. The record shows that after the preliminary examination was held an information was filed in the district court, on the 14th day of January, 1933, and the case was assigned for trial on the 7th day of February, 1933, on which date the case was regularly called. The state was represented by the county attorney and defendant was present in person and by his attorney, Herman S. Davis, and both announced ready for trial. No motion was filed to< set aside the information on the ground that the defendant had not been accorded a preliminary trial. In Heacock v. State, 4 Okla. Or. 606, 112 Pac. 949, in the second paragraph of the syllabus, division b, this court said:

“Where felonies are being prosecuted by information, if, in fact, defendant has not had a preliminary examination and been bound over to answer the charge contained in the information, or the defendant has not waived such examination, those matters can only be presented by a motion to set aside the information, and cannot be raised by motion to exclude the testimony of witnesses.”

When the defendant neglected to file a motion to set aside the information on the ground that he had not had a preliminary trial and had not been advised of his constitutional rights at the preliminary, he cannot raise the question by a motion to exclude the testimony of the witness. If the defendant did not have a preliminary examination, it should be raised by a plea in abatement or on a motion to quash, otherwise all essential preliminary proceedings will be presumed. McDaniel et al. v. State, 8 Okla. Cr. 209, 127 Pac. 358.

It is urged by the defendant that the court committed reversible error in permitting the state to read the testimony of the witness R. J. Davis, taken at the preliminary trial, for the reason that a sufficient predicate was not laid to show that Davis was a nonresident of the state, and could not be compelled to attend the trial. The defendant alleges that due diligence was not used by the state in trying to secure the attendance of this witness.

The record shows that a subpoena was issued and the sheriff could not find the witness R. J. Davis in the state, and the county attorney communicated to the address given at 125 East Oak street, Denton, Texas. The record further shows that on the 1st day of February, 1933, the sheriff of Jackson county served a notice on the defendant, giving the name and address of the witnesses that would be used in chief by the state against him; among the list was the name of R. J. Davis, 125 East Oak street, Denton, Tex., and advised the defendant that the witness Davis was not within the jurisdiction of the court, thus showing the return of the sheriff on the subpoena was correct and that Davis could not be found within the jurisdiction of the state of Oklahoma. The court did not err in admitting the testimony of the witness taken at the preliminary trial.

The testimony is conflicting, and this court has repeatedly held that where there was any competent testimony, though conflicting, to sustain the verdict of the jury it would not disturb the verdict. The jury having considered all the facts and circumstances and having heard the instructions of the court, found the defendant guilty, and gave him the minimum punishment.

The defendant was accorded a fair and impartial trial. The court correctly advised the jury as to the law applicable to the facts. After considering the record, we feel the jury could not have done otherwise than convict the defendant, as the testimony conclusively shows that the defendant was in the railroad yards the night of the robbery, and the prosecuting witness identified the defendant as being the man who> robbed him. There is no error in the record warranting this court in reversing the judgment.

The case is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


source: Caselaw Access Project

author: EDWARDS, P. J.

license: Public Domain

text:
    T. J. DEAN v. STATE.
    No. A-8638.
    Feb. 16, 1934.
    Rehearing Denied March 9, 1934.
    (30 Pac. [2d] 195.)

      Van Leuven & Van Leuven, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Tillman county of wife and. child abandonment, and his punishment fixed at imprisonment for a term of two years. The prosecution is under section 1830, Okla. Stat. 1931, which is:

“Every person who shall without good cause abandon his wife in destitute or necessitous circumstances and neglect and refuse to maintain or provide for her, or who shall abandon his or her minor child or children under the age of fifteen years and willfully neglect or refuse to maintain or provide for such child or children, shall be deemed guilty of a felony and upon conviction thereof, shall be punished by imprisonment in the state penitentiary for any period of time not less than one year or more than ten years.”

The information alleges a continuous abandonment from March 14', 1929, to September 9, 1932. The facts are about as follows: Defendant, in March, 1929, deserted his wife and two minor children, under ten years of age. The wife endeavored to locate defendant, writing several letters to different places in Oklahoma City, where she heard he might be; all the letters were returned and defendant wholly failed to> contribute to the support of the wife and children, or to communicate with them. The defendant used several witnesses but did not himself take the stand.

Defendant contends: First, that the evidence is insufficient to sustain the conviction; second, that the prosecution was barred by the statute of limitations.

As to the first contention, there is ample evidence to sustain the judgment. There is in fact but little conflict in the testimony. It is at least tacitly admitted that defendant abandoned his wife and children as alleged and never afterwards made any contribution to their support.

Considering the second assignment, if the original act of abandonment constituted the complete offense there might be some merit in the contention that the prosecution was barred; but it is not alone the act of abandoning the wife and children which constitutes the offense, but the neglect of the continuing obligation to support the wife and minor children, which, with the act of abandonment, constitutes the offense. We are aware that there is some division in the authorities; some holding that the offense becomes complete by the abandonment and refusal to support and that the statute of limitations begins to run at that time, but the more strongly sustained and the better reasoned rule is that the offense is composed of two essential elements — the abandonment and the refusal to maintain — and is a continuing offense. Under the latter rule the offense continues and is not barred so long as the abandonment and failure to support continue. 16 C. J. (Criminal Law) § 347; 30 C. J. (Husband and Wife) §§ 928, 929; Phelps v. State, 10 Ga. App. 41, 72 S. E. 524; State v. Stout, 139 Iowa, 557, 117 N. W. 958; Burton v. Commonwealth, 109 Vr. 800, 63 S. E. 464; State v. Beam, 181 N. C. 597, 107 S. E. 429; McRae v. State, 104 Miss. 861, 61 So. 977.

In Allred v. State, 28 Okla. Cr. 13, 228 Pac. 788, 789, this court, in referring to the statute under which defendant was prosecuted, said:

“* * * This is a statute providing relief and punishment for the omission of a duty, as distinguished from punishment for the commission of an illegal act. * * *”

See, also, State v. Gillmore, 88 Kan. 835, 129 Pac. 1123, 47 L. R. A. (N. S.) 217; Price v. State, 46 Okla. Cr. 96, 287 Pac. 1064.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: DAVENPORT, J.

text:
    GASTON GORDON v. STATE.
    No. A-8629.
    March 16, 1934.
    (30 Pac. [2d] 934.)

      H. C. Ivester, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of the crime of rape in the first degree and sentenced to serve a term of 15 years in the state penitentiary. Motion for new trial was filed, considered, overruled, and defendant appeals.

Chester Davis, a witness on behalf of the state, testified in substance as follows:

“I live south and east of Erick; was in Erick on the 7th day of January, 1933; saw Gaston Gordon with Albert Yeary in front of the barber shop; I was talking with Walter White; I saw Eddie Lee Parker with Mildred Loggin go by; Mr. Yeary called Walter White over to where he and Gordon were, and asked him to make a date; the defendant was present at that time, I did not hear him say a word.”

Eddie Lee Parker, testifying on behalf of the state, made the following statements:

“My name is Eddie Lee Parker; I live one-half mile north of Carl; in January, 1933, I lived six miles northwest of Erick; I was seventeen years old on that date; we arrived in Erick about 11 o’clock and went to Mamie’s Beauty Shop, and remained there about fifteen minutes, then Mildred Loggin and I walked around town just window shopping; I saw Walter White and he asked me to go riding with him; I refused; I saw him a second time at Bay’s store, hie asked me again to go riding with, him and I refused; I saw him again about 2 o’clock near the Max Theater; Mildred Loggin was with me; Wayne Jones, Myrtle and Olive Hill were with Walter White; Olive Hill asked me to go' with her down to a house to wait until a car came to take her to Texola; I asked which house, and she refused to tell me; Myrtle asked me to go and I told her I did not have time; Walter asked me several times and I finally consented, because Olive said she did not want to wait by herself and we would not be gone but about ten minutes. We went down with Walter White and Wayne Jones; when we got there I found we had gone to Gaston Gordon’s home, the defendant- in this case.
“This plat handed me is a correct plat of the house; we entered the house through the east bedroom; immediately after I entered the room I saw David Epps and Pauline Sandlin lying on the bed, the shades were pulled down; I started to leave and Walter grabbed and held me; I came back to the bed and all of them were sitting do wn; Albert Yeary came and knocked on the door and Walter White let him in; Albert threAV some liquor on the bed and the boys began to drink; Myrtle and Pauline took a drink; Albert asked me to have a drink and I refused, and he said, ‘Well, you are going to take a drink before you get out of the house;’ I thought I would pretend to drink, and Walter says, ‘You can’t fool me, you are not drinking;’ he came over and held it to my lips and I took one drink; immediately after that Albert began to try to make love to me; I resisted him and started toward the east room and he grabbed me and continued to make love to me, and threw me on the bed and was trying to pull up my dress; he was holding my hands and I was resisting him in every way I could, slapping him and pulling his hair and kicking him; I asked those present to help me get loose, but neither of them rendered any assistance; Olive Hill left; I was in the house with the rest of them for about 30 minutes when they all left but Albert Yeary; I was fighting him and he was pulling up my dress and trying to do anything he could; when I began screaming he called me a baby sport, and struck me in the eye and knocked me backward on the bed; during that time Gaston Gordon knocked on the door and Albert opened the door and Gas-ton came in; Gaston Gordon is the defendant in this case; I had never seen him before and thought perhaps he had heard me screaming and asked him to help me, and he said in a way he would, and Albert pushed him out and locked the door; just about five minutes after Gordon entered the room Olive Hill and Tommie Ray Loggin knocked on the door; they shoved me into the bathroom and put my shoes in after me, Yeary had taken them off; Wayne Jones was in the bathroom, and asked me what I was crying for, and asked me where I got my black eye and I told him Albert gave it to me; he told me to gn upstairs and he would not let them bother me; I tried the hall door and it was locked; Wayne Jones followed me and I asked him to let me out; I went into the east room and sat down on the bed and he tried to have intercourse with me and I resisted him; the window shades were up about twelve inches and I saw Myrtle and Olive Hill and Pauline Sandlin on the outside, and Wayne Jones unlocked the door and I went out; I asked them to wait until I got my hat and coat, and when I went in I saw Gaston Gordon in the west bedroom; Albert Yeary and Tommie Ray Loggin was with Gordon; they were trying to keep Tommie Ray Log-gin from going out of the door.
“I could see Albert Yeary and Gordon fighting Tommie Ray in the west room, and Wayne was good enough to let me out once — I thought he would again; I got my coat and hat and Wayne would not let me out; then Walter White, Gaston Gordon, Albert Yeary, and David Epps came in the room; Albert Yeary threw me on the bed and began pulling up my dress; I slapped him and pulled his hair and was asking for help, and neither of them would help me in any way whatever; finally Gaston Gordon came and pulled Albert off and said, ‘I want to see this girl;’ he said if I would go with him he would let me out; I went with him through the bathroom and hall; he got my hat and coat for me, and while he was getting my hat and coat I tried to get out at the north hall door; he said, 'Here is your hat and coat, here is the key, this is my house,’ he said, 'All the other boys intended to jazz you, if you show me a good time I will let you out,’ and I says, 'I won’t do> it, I will stay here all my life first,’ and he threw my hat and coat on the floor and stepped on them; he then tried to pull me in to the west bedroom; there was no one present and Gordon had hold of me and finally pulled me away from the north room door; he then said, 'I do not have to get you to the bed, I will show you right here;’ he shoved me up against the wall, held my hands over my head, and began stepping on me to make me open my legs and put his right foot inside mine; I did everything I could; he had me pressed against the wall; I struggled and fought for about 20 minutes, and he penetrated my body and hurt me; he finally said, ‘I am through with you,’ and walked in to the bathroom; Walter White came in as he went out and I went to this west bedroom door and tried to get out. Walter told me if I would go upstairs I could get out; I went up there, I thought there was an outside entrance; Walter told me there was; when I got up there Walter locked the door; I went to a window, the window had paper pasted over it, and I began jerking this off, and he threw me on the bed and held my hands and I began fighting him, but he kept on until he had intercourse with me; I knocked him and slapped him and did everything I could; I heard knocking at the door all the time; it was Albert Yeary; Walter opened the door for him and Albert came in after Walter had intercourse with me. Albert Yeary came in and jerked me away from the window and threw me on the bed; Walter was standing in the room and I asked him to help, but he would not assist me for the reason that Albert took out a pocket knife and threatened him; then Walter went out of the room; Albert threw me on the bed and by force, after hours of fighting, knocking and slapping — I did all I could — he accomplished his purpose and had intercourse with me. As soon as I got loose from Yeary I went down stairs and a truck drove up. Albert asked me if my folks came in a truck and I told him yes, and Albert said, 'That is her mother, let her go’; as soon as I could get out of the house I went to my brother’s home in town; my mother and sister-in-law were at home; this was about 6 o’clock in the evening, and I told them what had happened.”

Walter White testified on behalf of the state and admitted they got together in town and went down to Gaston Gordon’s place; the place where Gaston Gordon lived is known as the Bonefield apartments'—

“After we got down to the house Albert Yeary came in and started fooling with Eddie Lee Parker; he brought a pint of liquor with him; Albert Yeary pushed Eddie Lee Parker on the bed and forced her to lie there; it looked like he was taking unfair advantage of her; Miss Parker did not allow him to make these advances but resisted by fighting and slapping him; she asked for help and Olive Hill helped her once; when Olive Hill pulled Eddie Lee Parker away from Albert they tried to get out of the house but Albert would not let them out; David Epps and Olive Hill left; Myrtle Hill and Pauline Sandlin were outside; they held Miss Loggin in the house; I mean Albert Yeary, David Epps, and myself; we then went back in the room we had first gone in and found Wayne Jones and Eddie Lee Parker; when we came in Albert began bothering Eddie Lee; they fought for about ten minutes I would say; they quit fighting when Gordon, the defendant, came in; he said we wanted to see her, he would help her out; they went into another room; I did not see Miss Parker after that; Gordon came back to the bathroom door, was there just a few minutes; after Gordon went out with Eddie Lee Parker I heard some one, sounded like a woman’s voice, crying, and heard some words stop and quit; after that I went upstairs with Eddie Lee Parker, she wanted me to help her out; she went up stairs with the understanding that I would help her get out; I represented to her there was an outside entrance up stairs; when we got upstairs I put her on the bed; she fought me; I forced sexual intercourse with her; every thing I did was over her protest and resistance; as we started to leave Albert Yeary came up and grabbed her and threw her back on the bed; she asked me to help her and I endeavored to help her but Yeary told me to leave on out of the room and I did; I heard some talking but could not understand whether it was crying or not; it sounded like a woman’s voice crying; I came down stairs and they came down as a truck drove up, and Albert said something about the truck; I don’t know what he said, anyway he let her out of the house. Miss Parker said Gaston had been fighting her; Albert Yeary and myself then started to town; Albert said he finally got the job done after so long, some words like that; Miss Parker told us she was going to report what had happened.

Myrtle Hill, called as a witness, testified in substance as follows:

“I live six miles south of Erick; was in Erick during the day of January 7, 1933; saw Eddie Lee Parker at the Max Theater with Mildred Loggin; my sister Olive was with me; I saw Walter White standing a little ways from the theater; my sister Olive had a conversation with Miss Parker; Olive asked her to go down to the Bonefield Apartments and dance, and she would not go at first but Olive said there was a car coming to take her to Texola and she finally went; Walter White, myself, Eddie Lee Parker, Wayne Jones, and Olive went to the home of Gas-ton Gordon; Dave Epps and Pauline Sandlin was on the bed when we got there; in about 30 minutes Albert Yeary came and brought some whisky; all drank from the bottle; Albert was familiar with all of us but mostly with Eddie Lee; he put his arms around her and threw her on the bed; after he put her on the bed he was fighting her and she was resisting him; she tried to get out but Yeary was standing at the door and would not let her; my sister Olive and David Epps left; about 30 minutes after Yeary came in I left the room and went up stairs with Pauline Sandlin. Walter White and Wayne Jones; while up stairs I heard screams coming from down stairs; when I heard the screams I tried to get out, Walter White and Wayne Jones would not let me; Dave Epps came back in about ten minutes; I saw Wayne Jones again when he pulled Eddie Lee in the door as I came out oí the front door of the east room; I saw Gaston Gordon holding her as I came down the stairs; after I got out of the house Eddie Lee Parker came out; we asked her to go to town with us; she showed us her black eye and said Albert Yeary struck her; said she had to go back and get her hat and coat; at that time I saw Tommie Ray Loggin in the south room fighting Gaston Gordon and Albert Yeary.”

Tommie Ray Loggin testified to being at the Gaston Gordon home with other parties the afternoon of the alleged offense, and stated:

“I did not leave the house immediately because I could not get out, they had all the doors locked; I was fighting the defendant Gaston Gordon and Albert Yeary; in about 15 minutes I managed to get out; when I got outside I found Pauline Sandlin and Myrtle and Olive Hill; I did not remain any length of time after that.”

Mrs. E. M. Parker tesified as to her daughter going to town.with her after the alleged offense; the daughter going home and reporting what had happened. Other witnesses were called by the state who testified to the report received of the crime and arrest of the defendant,

Wayne Jones, who had been subpoenaed by the state but not used, was called as a witness for the defense, and detailed the meeting of the different parties, and their going to the home of the defendant, Gaston Gordon; he said the doors were closed and the night latch turned from the inside; I don’t remember any one trying to get out for about 30 minutes; Walter White did not keep Eddie Lee Parker from going from the house that I remember.

“Q. Did you hear Eddie Lee Parker make a protest, well this is not the place I thought it was, this is not the place for me, I am going to leave. And started to leave when she first got in? A. Not that I remember. Q. If she made any statement you did not hear her? A. Yes.. David Epps left a few minutes after Albert Yeary came in; Olive Hill left out through the front door, when myself and several others went up stairs we left Eddie Lee Parker and Albert Yeary down stairs; Pauline Sandlin suggested we go up stairs; I went in the south room when I got upstairs and stayed there possibly an hour; I don’t remember how long it was after I went up there until I turned off the lights; David Epps came in while I was up stairs; I went up stairs with Myrtle Hill, and Pauline Sandlin with David; I never heard a sound of wailing, crying, or screams while I was up stairs; the first time I saw Gaston Gordon was when Eddie Lee Parker and I were down stairs in the front room; he was in the bathroom; she was not on the bed with Albert Yeary; Gaston Gordon was not on the bed with her; Gaston Gordon on that occasion did not assault her or lay his hands on her in any manner to ravish her; he went over and made Albert leave her alone and told her he would let her out; that is the last time I saw them; I had taken her hat and coat; I don’t remember whether she or Gaston Gordon followed for her hat and coat; I did not see Gaston hold her in the bathroom.”

The defendant called several doctors, who were asked hypothetical questions as to the probability of forced cohabitation with a young woman pressed against a wall in a standing position, and they answered it would be difficult, but there were certain conditions that would have to be understood before they could give definite answers. The defendant did not take the witness stand.

We have set out all the testimony that it is deemed necessary in order to arrive at a correct decision.

The defendant has assigned 13 errors alleged to have been committed by the tidal court. The defendant in his brief has grouped his assignments of errors and argues in one group assignments 1 and 2. These assignments relate to the misconduct of the county attorney and the assistant county attorney in their opening argument; the alleged misconduct is as follows:

“Mr. Cornels: I believe I said there was no denial that there was intercourse between the defendant and Miss Parker, or that there was intercourse between the defendant and Miss Parker willingly. Mr. Ivaster: By the defense. Mr. Cornels: Did I say by the defense? Mr. Ivaster: Certainly. Mr. Cornels: All right. Mr. Ivaster: The defendant objected to the remarks of the assistant county attorney.”

Section 3068 of the Okla. Stats. 1931, is as follows:

“In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of a crime, offense or misdemeanor before any court or committing magistrate in this state, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to' make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel, it shall be ground for a new trial.”

Defendant’s counsel in his argument urges that the remarks of the assistant county attorney, wherein he referred to' the fact that there was no denial by the defense that there was intercourse between the defendant and Miss Parker or that there was intercourse between the defendant and Miss Parker willingly, is sufficient to warrant the court in reversing the judgment, and cites in support- of his argument Nowlin v. State, 7 Okla. Cr. 27, 115 Pac. 625, 121 Pac. 791; and Weinberger v. State, 8 Okla. Cr. 441, 128 Pac. 160.

Upon examination of the cases cited by the defendant we find the county attorney in his argument to the jury, in 7 Okla. Cr. 27, 115 Pac. 625, 121 Pac. 791, 792, supra, said:

“If appellant bad not left tbe barn as testified to by tbe state’s witness, be (appellant) would have been tbe best witness as to .that fact.”

This statement clearly shows that the county attorney made a direct reference to tbe defendant Nowlin not having testified in bis own behalf, or not having controverted tbe state’s witness. Tbe statute quoted, supra, is mandatory and must not be violated directly or indirectly, either in tbe letter or spirit. Tbe statement of the county attorney complained of in tbe case at bar is noi the same as the statement of tbe county attorney complained of in the decisions cited by tbe defendant. In those eases tbe county attorney made a direct reference to tbe defendant not having disputed tbe state’s testimony.

In this case tbe defendant called several witnesses who were in tbe bouse tbe day of tbe alleged offense, and tbe record shows they were in tbe bouse at the time the prosecuting witness testifies tbe defendant forcibly attacked and bad intercourse with her, and neither of tbe witnesses called by tbe defendant deny tbe fact that the defendant did have forcible intercourse with tbe prosecuting witness. Tbe argument of tbe county attorney did not directly or indirectly refer to tbe defendant having failed to take tbe witness stand, but was a comment upon tbe testimony of tbe witnesses called by tbe defense, and an argument that, notwithstanding the record shows that some of tbe witnesses called by tbe defense were in the bouse at' tbe túne of tbe alleged rape, neither of them disputes tbe state’s testimony that the defendant committed a forcible act of intercourse with the prosecuting witness, Eddie Lee Parker.

The county attorney was within the facts when he made the statement he did, and is sustained by the following decisions of this court: Murrell v. State, 34 Okla. Cr. 414, 246 Pac. 644; McDaniel v. State, 35 Okla. Cr. 425, 250 Pac. 804.

In Keith v. State, 43 Okla. Cr. 229, 277 Pac. 1037, 1038, this court said:

“It is also contended that the county attorney was guilty of misconduct prejudicial to the rights of the defendant, by making statements by innuendo and otherwise of the failure of the defendant to take the witness stand in his own behalf. With this contention we cannot agree. The only statement made by the county attorney was that the testimony of the state was undisputed. It is not shown by the record that the county attorney made any reference whatever to the failure of the defendant to testify. Where a case is tried and the defendant offers no testimony, the county attorney has the right to comment upon the fact that the evidence of the state is not disputed, and in doing so it cannot be said that he is commenting upon the failure of the defendant to take the witness stand.”

The county attorney was within the facts in this case, and his statement cannot be construed as referring directly or indirectly to the fact that'the defendant had not taken the witness stand. The county attorney did not commit reversible error in making the statement to the jury complained of by the defendant.

The defendant has argued assignments 3, 4, 5, and 8, together. In presenting this assignment the defendant contends the trial court erred in. permitting the state to prove by witnesses certain acts and statements of other parties immediately before and after the alleged act of sexual intercourse committed by the defendant.

The theory upon which the evidence complained of 'by the defendant was admitted was that other parties entered into a general conspiracy with the defendant to persuade the prosecuting witness to go to the home of the defendant, and there to have sexual intercourse with her, and in presenting its case to the court and jury the state presented it on the theory that a conspiracy had been formed, and that conspiracy was supported by circumstantial evidence. The evidence presented was proper and competent to prove that a crime had been committed as the result of a conspiracy to commit it. A conspiracy may be proved by circumstantial evidence. What are the circumstances? The prosecuting witness was met on the streets of Erick‘by Walter White, who asked her to go riding; later on other parties who are shown to have been in the house, where the doors were locked, persuaded the prosecuting witness to go with them to the Bonefield Apartment, which was the home of defendant. The defendant was a married man. Wayne Jones, David Epps, the Hill girls, and Pauline Sandlin, and others were there in the house at the time the prosecuting witness arrived, or came shortly thereafter. It is shown that immediately after Albert Yeary arrived at the house he began to try to take liberties with the prosecuting witness; all admit this young girl had been fighting and doing all she could to cause Yeary to leave her alone, and to' protect herself from his advances; later on the defendant appears in the room and takes the prosecuting witness away from Yeary, out through the bathroom, where no one but the defendant and prosecuting witness knew what took place.

It is further shown that after the defendant had by force and in a brutal manner cohabited with the prosecuting witness, she was taken upstairs by Walter White on the theory that he would let her out of the house by a back stairway, but the moment he got her in a room he locked the door and proceeded by force to have intercourse with her; a knock was heard on the door and when the door was opened it was Albert Yeary, who at the point of a knife forced Walter White to leave the room, and Yeary assaulted the prosecuting witness and by force had sexual intercourse with her.

In Brown v. State, 42 Okla. Cr. 11, 273 Pac. 1018, 1019, this court held:

“The least degree of concert of action or collusion makes the act of one conspirator the act of all, and each conspirator is liable for the act of each other conspirator done in pursuance of such conspiracy.” Elliott v. State, 45 Okla. Cr. 5, 281 Pac. 305; Sherill et al. v. State, 47 Okla. Cr. 275, 287 Pac. 747.

In Mathews v. State, 19 Okla. Cr. 153, 198 Pac. 112, 113, in the eleventh paragraph of the syllabus, the court said:

“It is immaterial in what order testimony predicated upon a conspiracy is introduced, if the series of facts and circumstances shown in evidence ultimately make a prima facie case of conspiracy. A conspiracy may, and generally must, be proved by a number of independent acts, conditions, and circumstances tending to show an unlawful common purpose of the conspirators.”

In Hendrix v. State, 22 Okla. Cr. 230, 210 Pac. 734, this court, in the second paragraph of the syllabus, said:

“A conspiracy ordinarily is established largely by circumstantial evidence of the acts and declarations of the parties, indicative of a common design to do an unlawful act.”

In Mathews v. State, supra, it is held:

“It is a general rule that upon the trial of one accused of a crime evidence is admissible to prove a conspiracy to commit the crime charged, although the conspiracy is not charged in the indictment.”

It has been repeatedly held by this court that slight evidence of collusion is all the law requires to admit the acts and declarations of the conspirator in evidence against a coconspirator. Starr v. State, 5 Okla. Cr. 440, 115 Pac. 356; Blanck v. State, 14 Okla. Cr. 339, 169 Pac. 1130.

The court did not err, in admitting, over the objection of the defendant, the testimony complained of.

It is further argued by the defendant that the evidence is insufficient to support the judgment. With this contention we cannot agree. The record in this case discloses one of the most diabolical, premeditated, disgraceful and immoral arranged plans to outrage forcibly, and against her will, the prosecuting witness in this case. It seemsi unreasonable and unbelievable that men who have ever known the word mother or sister could so far degrade themselves as to persuade this young girl to come down to the house and lock the doors and keep her confined for their pleasure, together with a number of other parties The conduct of the defendant sinks below human nature and reaches the low degree of brute.

The jury would have been justified in giving the defendant the maximum punishment. The defendant in this case was fortunate that he got the minimum punishment, under the testimony disclosed by the record. There are no errors in the record. The defendant was accorded a fair trial.

The judgment is affirmed.

CHAPPELL, J., concurs. EDWARDS, P. J., not participating.


text:
    OSCAR WINGFIELD v. STATE.
    No. A-8649.
    March 16, 1934.
    (30 Pac. [2d] 930.)
    Brown Moore and R. J. Shive, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of the crime of receiving stolen property and his penalty fixed at a fine of $25, and he appeals. The theory of the state is that the defendant, for a consideration, received from one Gaston Van Ross a trailer which had been stolen from R. G. Pearce; that the defendant bought the trailer knowing at the time he purchased the same it had been stolen. The state relied principally upon circumstantial evidence and the statements alleged to have been made by the defendant to the officers while under arrest.

The defendant testified that he did not know the trailer had been stolen; that he purchased the same from Gaston Van Ross, paying him $10 for it, and called several witnesses who were at the home of the defendant at the time the trailer was purchased by the defendant. The testimony of the defendant further shows that he used the trailer around the farm, put additional boards on the box of the trailer, painted and made other repairs; that it was left in the open where it could be seen by any one coming to his place, and he used it in hauling corn, and the day it was discovered in Gushing he had driven it to town with a load of corn.

The defendant has assigned ten errors alleged to have been committed by the trial court, on which he relies for reversal. There is only one error necessary for this court to consider in order to arrive at a proper decision. The tenth assignment of error is as follows:

“The court erred in overruling the motion of the plaintiff in error for a new trial.”

This assignment raises all of the questions in the other assignments, and specifically directs the court’s attention to what took place in the trial of the case.

The record discloses that there had been a previous trial in this case and the jury failed to agree; that the court delivered an abusive reprimand because they could not agree, discharged them from the trial of the case and from further service as jurors in his court.

In view of what took place in the first trial and the abuse heaped on the jury by the court, the defendant went to' trial knowing how the court felt toward him. We are going to set out a few of the remarks and threats the court made in the presence of the jury during the trial of the case, while the testimony was being taken. The attorney for the defendant, while cross-examining Charles Griffin, propounded the following questions to the witness:

“Q. You got up between his legs and tried to brow beat him into confessing he stole this trailer? By the Court: Wait a minute now, this isn’t a trial for assault and battery. By Mr. Moore: No, I haven’t accused him of it. By the Court: Well, that is enough of that. By Mr. Moore: Exceptions.”

Again, when the attorney for the defendant was cross-examining L. D. Gault, a state witness, he propounded the following questions:

“Q. Who did you tell this? By the Court: Now both of you gentlemen be courteous to each other. By Mr. Moore: Who did you first tell about this? By the Court: Wait a minute. You are going to show some respect to this court, or you are going to‘ pay for it. By Mr. Moore: I have got lots of respect for you and I am trying to try this lawsuit. By the Court: Well, you had better show some of it sometime. You may have a lot, but you don’t show it in here. Q. Who is the first party you told about it? A. I don’t know. Q. You don’t know who the first person was? A. No, I don’t. Q. You don’t know? A. No. Mr. Brown: That is all. Witness: I thought so. By the Court: I don’t know why lawyers can’t treat witnesses with courtesy. By Mr. Moore: Why can’t witnesses do the same thing ? By the Court: They do if they are permitted.”

During the examination of the jurors on their voir dire the court asked the jurors collectively if there were any of them there for the purpose of hanging the jury, to which the defendant excepted.

The trial judge, while the defendant was on the stand, over the objection of the defendant, asked the defendant the following questions:

“By the Court: How long did you say you had been acquainted with Gaston Van Boss? A. I think about since 1918, I believe. By the Court: How well were you acquainted with him? A. No more than any day laborer. I worked lots of men, chopping cotton and picking cotton. By the Court: Did you know he had been in trouble with the law quite a bit? A. No, sir. By the Court: Did you know he had been arrested on a narcotic charge with Eli West and a lot of those fellows? A. No, sir. By the Court: In both this court and federal court? A. No, sir.

It is clearly shown by the questions the court propounded to the jurors as they were being examined on their voir dire, and questions propounded by the court to the defendant while on the witness stand, and other remarks of the court, that the court was prejudiced against the defendant and his counsel.

Every person charged with crime, whether guilty or innocent, is entitled to a fair and impartial trial according to the due and orderly course of law, and it is a duty resting upon the courts to see that 'the guaranty of such a trial, conferred by the laws upon every citizen, shall be upheld and sustained. Sutton v. State, 35 Okla. Cr. 263, 250 Pac. 930; Bramble v. State, 37 Okla. Cr. 35, 255 Pac. 1104; Clark v. State, 12 Okla. Cr. 263, 154 Pac. 1005; Popp v. State, 44 Okla. Cr. 220, 280 Pac. 478.

Attorneys for a defendant are entitled to, and must receive, absolutely fair treatment at the hands of the trial court, and, when this is not accorded them, and the error is of such a character that it may have influenced the jury in finding a verdict, a conviction will be reversed. MeSpadden v. State, 8 Okla. Cr. 489, 129 Pac. 72; Melton v. State, 53 Okla. Cr. 360, 12 Pac. (2d) 251.

It is the duty of the trial judges and prosecuting attorneys to treat the defendant with courtesy and fairness, and allow him a reasonable time to prepare for trial. It is unfortunate that the judge in this case so far forgot himself as to make the remarks he addressed to the attorney for the defendant in the presence of the jury. There is nothing in the record justifying the remarks made by the trial court in this case.

It is further disclosed by the record that there had been a mistrial, and, when the jury reported it could not agree, the court expressed itself in vitriolic and abusive terms to the jury, discharging them from the case, and from further jury service in his court.

The remarks of the court in the trial of this case clearly show that the court was not only unfriendly to the defendant but to the counsel who was defending him. A court may dislike an attorney who is defending in a criminal trial, yet it is not its province to wreak its vengeance upon the attorney in open court, in the presence of the jury sworn to render a fair and impartial trial. The remarks of the trial judge in this case, in the presence of the jury, deprived the defendant of a fair and impartial trial, and the remarks addressed to the defendant’s attorney were such as to prejudice the rights of the defendant before the jury, and. are reversible error.

It is urged by the defendant that the court erred in his instruction No. 7, which is as follows:

“You are instructed that as to' the defendant knowing that the trailer was stolen, it is not necessary that somebody should have told him that it was stolen, but it is necessary that he must have actually known that it was stolen, or that he knew such facts as made him believe that in all probability it was stolen. And in ascertaining whether or not he had such guilty .knowledge, you will take into consideration all of the facts and circumstances which have been introduced in evidence bearing upon that matter, and in that connection you will consider the time and manner of receiving the trailer, his explanation thereof, and the reasonableness or unreasonableness, and the truthfulness or untruthfulness thereof, the person from whom he received it, his conduct with it afterwards, and his disposal of it, the price paid for the same, and all other facts and circumstances; and if after such consideration you find beyond a reasonable doubt that he knew that the truck was stolen at the time he received the same, or that he knew such facts as made him believe that in all probability it was stolen, and he received it under those circumstances, that is sufficient as to his knowledge of its being stolen. And if you find these facts beyond a reasonable doubt, and also find the other facts necessary to constitute the crime charged, then it will be your duty to convict the defendant.”

Under the foregoing instruction, the jury is permitted to return a verdict against the accused that is not warranted by the law. Analyzing the foregoing instruction, the jury is told in substance that, if the defendant knew such facts as would lead him to believe the trailer was stolen, or if he knew such facts that made him believe that in all probability it was stolen, that is sufficient as to his knowledge of its being stolen. This is not the quantum of proof the law requires to establish guilty knowledge. It is essential that guilty knowledge be proven by either direct evidence or by proof of facts and circumstances connected with the transaction. This instruction did not correctly state the law applicable to the facts in this case. Weaver v. State, 30 Okla. Cr. 309, 235 Pac. 635, and cases therein cited.

It is contended by the defendant that there is no competent evidence to sustain the judgment. With this contention we agree. There is no positive or circumstantial evidence sufficient to show that at the time the defendant bought the trailer he had any knowledge it was stolen.

For the reasons herein stated, this case is reversed and remanded, with directions that, if the state has no further testimony than that presented to the jury in the trial of this case, the same be dismissed.

CHAPPELL, J., concurs. EDWARDS, P. J., not participating.


author: PER CURIAM.

text:
    Ex parte A. B. C. DAYIS.
    No. A-8710.
    March 30, 1934.
    (31 Pac. [2d] 623.)
    A. B. C. Davis, pro se.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

This, is an original proceeding in habeas corpus filed by petitioner in which he alleges, in substance, that he is unlawfully restrained by the state penitentiary. That he was convicted on a charge of murder caused by a criminal operation. That he appealed from such conviction to this court and the judgment was affirmed. Davis v. State, 30 Okla. Cr. 61, 234 Pac. 787. Petitioner alleges he is not guilty of the offense charged. He makes no claim that the trial court was without jurisdiction or that there was any lack of due process of law.

The office of the writ of habeas corpus is not to determine the guilt or innocence of a prisoner but the purpose is to determine if the prisoner is restrained by due process of law. If this were not so, then a criminal case would never end, bnt after trial and conviction the court would be called upon to again try the issues by habeas corpus. Since no question is presented which may be raised in an action of this kind, the writ is denied.


text:
    In re OPINION OF THE JUDGES. In re FRANK CLARK.
    No. A-8712.
    March 30, 1934.
    (31 Pac. [2d] 159.)
   DAVENPORT, J.

The record submitted, to which is attached your request above mentioned, discloses that the said Frank Clark was charged with murder by information in the district court of McCurtain county, and that said information was filed in said court on the 28th day of February, 1934; that on the -said day testimony was taken and the defendant entered his plea of guilty. The court fixed March 5, 1934, as the date of sentence for the defendant, and on the said 5th day of March, 1934, defendant was sentenced to death by electrocution on the 18th day of May, 1934.

Under the Constitution and the laws of this state, any person convicted of a felony may appeal within six months from the date the judgment is rendered. Under the provisions of section 3192, Oklahoma Statutes 1931, the defendant, if he takes proper steps, may perfect his appeal to this court. This court has uniformly held that the provisions of section 2786, C. O. S. 1921, now section 3172, Okla. Stats. 1931, contemplate an advisory opinion where the appeal has not been taken from the judgment and sentence of death. To render an advisory opinion where the time given for appeal has not expired, and where an appeal may be perfected, would be to prejudge the case upon an ex parte proceeding, which might be brought before the court upon an appeal. This court cannot assume that the defendant will not appeal until the time for such an. appeal shall have expired, or the right to appeal shall have been expressly waived. In order that the defendant shall not be deprived of his right to appeal within six months, the execution of the sentence of death should be postponed to' some date after the 5th of September, 1934. If in the meantime the appeal is perfected and filed in this court, such appeal will automatically give the accused the right to a further suspension of the execution of the sentence until the appeal shall be determined upon its merits.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    CLAUD LAND v. STATE.
    No. A-8656.
    March 30, 1934.
    (31 Pac. [2d] 158.)
    Long & Martin, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State,
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of disturbing the peace, and was sentenced to pay a fine of $50 and costs.

The testimony on behalf of the state shows the defendant was the landlord of W. McElroy, and on or about the 1st of July, 1933, the defendant went to the home of McElroy and there abused, cursed, and called him names, and disturbed the peace of McElroy and his family. The defendant denies he cursed, abused, or used any language in the presence of the defendant and his wife calculated to arouse to anger or disturb the McElroys. The evidence is conflicting. The jury, after hearing the evidence and instructions of the court, returned a verdict finding the defendant guilty as charged in the information.

This court has repeatedly held that, where there is any competent evidence, though conflicting, to sustain the verdict of the jury, it would not disturb it.

The only question to be considered in this case is, Was the defendant accorded a fair and impartial trial, and was there any error committed by the trial court sufficient to justify a reversal? It is urged by the defendant that the court erred in his fifth instruction when he told the jury to disregard and ignore the question of the relation of landlord and tenant existing between McElroy and the defendant. The record has been carefully examined, and, after due consideration, the court holds that the question of landlord and tenant was properly excluded. The only question involved is the question whether or not the defendant went to' the home of the prosecuting witness and there used language calculated to arouse the anger or to cause a breach of the peace, and by so doing disturbed the peace of the prosecuting witness and his family. The court did not err in excluding the question of landlord and tenant from the jury.

It is next urged by the defendant that the court erred in admitting the information, wherein the defendant, prior to the trial of this case, had entered his plea of guilty and had been sentenced by the court. This evidence was introduced for the purpose of affecting the credibility of the witness^ and the court did not err in permitting it to be introduced. It was only cumulative of the testimony of the defendant wherein he admitted a conviction and sentence. The defendant was accorded a fair and impartial trial, and this court will not disturb the verdict of the jury.

The judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


author: DAVENPOBT, J.

text:
    L. E. WILLIAMS v. STATE.
    No. A-8628.
    Feb. 2, 1934.
    Rehearing Denied March 30, 1934.
    (30 Pac. [2d] 932.)
    Joe Adwon, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPOBT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of maintaining a public nuisance and sentenced to pay a fine of $500 and to be imprisoned in the county jail for six months. Motion for new trial was filed, considered, overruled, and defendant appeals.

The testimony on behalf of the state shows that on July 5, 1930, the officers searched 15% West California avenue, Oklahoma City, Okla. In rooms occupied by the defendant they found no whisky. In a big room on the same floor when they entered there were several colored men who- had been shooting craps. In searching the rooms they removed some electric light fixtures and found several pints of whisky, and in another room, they found a few pints of whisky. These rooms were locked, and the defendant stated to the officers he had rented them to Henry Spencer and Art Mitchell. One of the officers stated when they called the defendant from the lower floor of the building, after they found the whisky behind the electric light fixtures, he stated if it had not been for the snitching negro they would not have found the whisky.

The defendant denies he owned the whisky or that he had anything to do with it, or that he knew anything about the whisky being in the rooms, as he was not in possession or control of them at the time. There is some testimony that the defendant’s place had been searched on previous occasions. The testimony is indefinite and uncertain, and does not give the date or state specifically that the search made of defendant’s premises on previous occasions was of the premises he was occupying on July 5, 1930.

In the trial of the case, and before the defendant had testified, the county attorney went into the reputation of the defendant for truth and veracity and proved it was bad. Just before the state closed its testimony the county attorney stated to the court: “There was two questions asked by the state as to the general reputation of the defendant, L. E. Williams, and I want to withdraw these questions, and parts of the questions relative to the person of L. E. Williams.” The court, over the objection of the defendant, granted the county attorney permission to withdraw the questions, and directed the jury to disregard the questions asked and answers given as to the reputation of the person of defendant. The testimony as to the reputation of the defendant for truth and veracity had been presented to the jury and throughout the trial until almost its close was before them as evidence. Even though the court granted the request of the county attorney to withdraw the questions and answers, the evidence had been in the minds of the jurors during the trial, and we are satisfied the testimony prejudiced the defendant in the minds of the jurors, and had great weight with the jury when it fixed the punishment.

The state recalled George Kerr, who had previously testified in the case, who testified he knew the general reputation on July 5, 1930, of the place at 15% West California avenue, Oklahoma City, Okla., as being a place where various persons unknown Avere permitted to congregate for the purpose of buying, receiving, and drinking intoxicating liquor, and that its reputation was bad.

The defendant denied any knowledge of the whisky and testified he had the rooms in which the whisky was found rented to Henry Spencer and Art Mitchell. On cross-examination he admitted he had been convicted, or had pleaded guilty and paid a fine, and when asked about another conviction stated he had been convicted in the trial court; that he appealed to the Criminal Court of Appeals and the case was reversed. This is in substance the testimony.

The defendant complains of the action of the court in permitting the county attorney to go into his reputation for truth and veracity before he had put his reputation in issue. This complaint cannot be considered by this court, as there was no objection interposed to the questions propounded by the county attorney, or the answers given by the witness.

However, we feel justified in saying that in criminal prosecutions it is the duty of the county attorney to refrain from asking improper questions. The county attorney should not have asked this question until the defendant had first put his reputation in issue. The record is full of questions and answers which are immaterial to the issue as to whether or not the defendant is guilty of maintaining a public nuisance. In the brief of the Attorney General he discusses many of the questions raised by the defendant in the record and insists that the evidence is sufficient to sustain a conviction, but does not discuss the sufficiency of the evidence to sustain a conviction of maintaining a public nuisance. If the defendant had been charged with possession of whisky, with intent to sell, barter, give away, or otherwise furnish to others, the case of the state would have been much stronger. In the brief of the Attorney General he suggests that if the court should hold that there was evidence prematurely admitted which biased or prejudiced the jury against the defendant that the most the court should do would be a modification of the judgment.

There is sufficient testimony to. justify the court in submitting the case to the jury. After considering all of the facts and circumstances, and in view of the manner in which the testimony was. presented, we hold the judgment should be modified to a fine of $100 and imprisonment in the county jail for 60 days, and as .modified the judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    O. B. (BUDDY) O’NEAL v. STATE.
    No. A-8621.
    April 6, 1934.
    (31 Pao. [2d] 886.)

      Moss & Powell, for plaintiff in error.
    J. Berry Bang, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county, and was sentenced to serve a term of 99 years in the state penitentiary.

The evidence discloses that defendant, a white man, 22 years of age, a laborer in the oil field, shot and killed one Charley Williams, aged about 54 years, a negro- porter, at the Liberty Hotel. Defendant roomed at the hotel; he came in from the oil field about midnight; deceased was in charge of the desk in the lobby. Defendant in substance asked to buy a package of cigarettes, on credit; deceased in substance informed him he was not permitted to extend credit. Defendant insisted, and deceased continued to refuse. Defendant then went to his room o-n the second floor, got a pistol and returned to the lobby and again asked for the cigarettes. Deceased put them on the counter and asked defendant to pay for them. Defendant grabbed the package, and deceased tried to' recover it. Defendant then pulled the pistol from his pocket and ordered deceased to' go up stairs after his pay, and forced him a distance of some 15 or 20 feet while he was protesting, then fired a single shot, inflicting a wound from which deceased died late in the day. Defendant then went to his room and fled by the fire escape. He was captured some months later in New Mexico'. He interposed a plea of self-defense. The state made out a case of murder. It is not contended that the evidence is insufficient.

It is first argued the court erred in permitting witness Cauthron to testify, in rebuttal, to matters which should have been introduced in chief, for the reason defendant had not been served with the name of this witness as required by article 2, § 20, Constitution. In capital cases the names of witnesses used in rebuttal are not required to be served, but this exception does not permit the state to withhold the name of a witness whose testimony is in chief, and, by using him in rebuttal, avoid the force of the constitutional requirement. That a part of his testimony might have been used in chief does not preclude the state from using the witness in rebuttal where that portion of the testimony which might have been used in chief is merely cumulative or incidental to the rebuttal feature of his testimony. The introduction of such evidence is discretionary with the trial court, and its admission is not a ground for reversal, unless an abuse of discretion is shown. In the instant case there was no abuse of discretion. Hampton v. State, 7 Okla. Cr. 291, 123 Pac. 571, 40 L. R. A. (N. S.) 43.

Defendant next contends the prosecution persistently attempted to introduce evidente of bad reputation of defendant when he had not put his reputation in issue. This assignment is directed to various questions touching defendant’s conduct on the evening of the homicide as tending to show ill will toward the, negro porters at the hotel and that he was in a bellicose state of mind. Certainly the state cannot attack the reputation of a defendant in the first instance, and evidence of reputation is admissible on the part of the state only after a defendant has introduced evidence on this point. Whitlow v. State, 24 Okla. Cr. 307, 218 Pac. 162. The questions propounded and the evidence introduced and sought to be introduced here complained of do not constitute an attack on defendant’s reputation. They are directed rather to matters connected with the homicide and tending to throw light upon the motives and intent of defendant and to refute the plea of self-defense. There is no' material error on this point. Williams v. State, 4 Okla. Cr. 523, 114 Pac. 1114.

Also complaint is made that the court erred in his instructions, particularly No. 26, in which the court in substance told the jury that, in case they entertain a reasonable doubt whether defendant is guilty of murder or manslaughter in the first degree, they must give him the benefit of the doubt and find him guilty of the lower degree. This is in conformity to section 3091, Okla. Stat. 1931. No exception was taken to any of the instructions, nor was any request made for additional instructions. Construed as a, whole, the instructions fairly and fully cover the law of murder, manslaughter in the first degree, and justifiable homicide in self-defense.

Also it is urged the court erred in receiving a verdict of manslaughter in the first degree without requiring the jury to assess tbe punishment. The record does not disclose the circumstances under which the verdict was returned. In the motion for a new trial, it is assigned as error that the court received the verdict in open court in the presence of defendant, but, in the absence of defendant’s counsel; that defendant was thereby deprived of his right to have his punishment assessed by the jury. No stipulation upon this point was made, nor was any evidence in support of the motion for new trial offered. No request was made that the court require the jury to assess the punishment. The court instructed the jury in case they should find the defendant guilty of an offense less than murder, or if they should fail to agree on the punishment, they might leave the same to be assessed by the court. The instruction on this point conforms to the requirement of section 3108, Oída. Stat. 1931. Some other errors are assigned in the brief, but none of them are of sufficient importance to require special discussion. They have not been overlooked, but have had the consideration of the court. We find no substantial error.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: CHAPPELL, J.

text:
    JOE T. BEHNE v. STATE.
    No. A-8645.
    April 6, 1934.
    (31 Pac. [2d] 621.)
    Clifford Ferguson and Hughes & Dickson, for plaintiff in error.

      J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Joe T. Behne, plaintiff in error, was convicted in the district court of Texas county of the crime of forgery in the second degree, and, the jury failing to agree upon the punishment, the court fixed the same at imprisonment in the state reformatory at Granite for a period of two years.

It is first contended the trial court erred in overruling defendant’s motion for an instructed verdict because the evidence of the state was insufficient to take the case to the jury.

The evidence of the state was that the forging and passing of the check in question was the result of a conspiracy entered into between Cecil McMillin, an eighteen year old boy, and this defendant, who was a married man, twenty-eight years of age; that McMillin came to defendant’s home and stayed several days in the absence of defendant’s wife and children; and that while there the scheme to procure a blank check and forge and pass the same was suggested by defendant and planned by him and McMillin.

Under this assignment defendant’s principal contention is that since McMillin is an accomplice, his testimony was not sufficiently corroborated.

McMillin is corroborated first by the testimony of Temple McQuirt, who was manager of the Oklahoma Wheat Pool Elevator located at Hough, Okla., from which place the blank check or draft which was forged and passed by defendant in connection with McMillin was taken. McQuirt testified defendant had transacted business there Avith the elevator and had been given checks of this kind and knew where the checks were kept, but that McMillin had never been there except on the day in question, when he .came with defend an c, and that it was after the discovery of the forgery that the blank check was missed. McMillan testified that while he and defendant were on the way to the elevator that day, defendant told him where he could find the blank check and persuaded him to get it; that defendant had McQuirt accompany him to the elevator, some 75 yards distant from the office whore the checks were kept, to help him unload his wheat, leaving McMillin in the office; and that, while they were unloading the wheat he obtained the blank check.

McMillin is also corroborated by the testimony of Dewey Costner, a confessed bootlegger, who at the time of defendant’s trial had an appeal, pending in this court from a conviction for selling the liquor purchased with the proceeds of this forged check to McMillin, a minor, which case was later affirmed by this court. Costner testified defendant brought McMillin, in defendant’s car, to his place to purchase some liquor, introducing him as Mr. Joe Henson, a brother of H. H. Henson, to whom the forged check was made payable and by whom it was purported to have been indorsed, telling Costner that Henson was a middle aged man; that this check was tendered to Costner in the purchase of the whisky, and when he refused to take it he was urged by defendant on the statement that it was all right. That later defendant and McMillin returned to his place of business and defendant paid him $15 in cash for a keg of whisky.

McMillin had testified that he succeeded in cashing this check at a filling station and had received more than $15 in cash, which he turned over to defendant; that they then returned to Costner’s place and procured the whisky. It is not essential that the corroborating evidence shall cover every material point testified to by the accomplice, or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to some material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to all. Such corroborating evidence, however, must show more than the mere commission of the offense or the circumstances thereof.

McMillin is corroborated by McQuirt as to when and how he obtained the' blank check upon which the forgery was committed, and is corroborated by Costner as to the uttering of the same and the disposition of the proceeds, which was sufficient corroboration of McMillin to take the case to the jury and to support its verdict.

It is next contended the court erred in submitting the case to' the jury upon the theory that defendant directly forged and passed the check, rather than aided and abetted.

Under this assignment defendant directs our attention to instruction No-. 8, which if standing alone might support the contention. But when considered with No. 2, No. 2-A, and No. 3, wherein the court defined an accomplice, it is apparent these instructions were sufficient to present this question of law to the jury.

It is next contended the trial court erred in refusing to permit defendant in rebuttal to prove his good reputation in the community in which he lived for truth and veracity, after his reputation for truth and veracity had been brought into question by the state.

There might be some merit in this contention if it were not for the fact that the court later permitted the evidence complained of to gO' to the jury.

In sustaining the state’s objection to the introduction of this evidence, the court held that it was not proper at that time, but should have been introduced in chief; later permitting defendant to reopen his case and introduce the evidence.

The ruling of the court in rejecting the evidence in the first instance was wrong; but the error, if any, was cured by its later admission, although the court gave an erroneous reason for its admission.

The only question before this court is: Did the ruling of the trial court in the light of the record deprive defendant of any substantial right, to his prejudice? This evidence all having gone to the jury, defendant was not injured by reason of the fact that the court gave an erroneous reason for its admission.

No substantial error appearing, ihe cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J„ concur.


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    JASPER HAWKINS v. STATE.
    No. A-8590.
    Feb. 27, 1934.
    Rehearing Denied April 6, 1934.
    (32 Pac. [2d] 101.)

      H. J. Mackey and Clark & Gilbreath, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, Jasper Hawkins, hereinafter referred to as defendant, was convicted in the district court of Oklahoma county of the crime of obtaining property by false pretenses, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of three years.

It was the contention of the state that the' $3,000 of building and loan stock and the two city lots involved in the purchase of the last one-half of the property were obtained by the false pretenses of defendant that he had applied the $2,000 received when the first half was purchased to' reduce the indebtedness to- $4,600, and in support of this charge the evidence is:

That in January, 1932, defendant, who had resided in Oklahoma for about 25 years, was a contractor and real estate dealer or speculator; that there lived at Springdale, Ark., Albert Price, another real estate dealer; that H. W. Gripple was the owner of 80 acres of land about six miles west of Rogers, Ark., and two miles southwest of Benton-ville, known as the Gripple farm; that Gripple had owned this farm for 36 years and disposed of it about 1930; that the title to the farm had changed. hands several times through real estate deals and trades engineered by Price; that Price himself had a deed to this property, but had never put it of record; that there were two mortgages on the place, one for $4,000 and one for $2,250; that the $2,250 note had been overdue since November, 1930, and the $4,000 note would be due December 1, 1932, and that the interest on both mortgages^ was past due and taxes for 1930 and 1931 unpaid and the place sold for taxes; that B. D. Pilley, complaining witness, had been engaged in the grocery business in Oklahoma City for a number of years and had known defendant; that defendant induced Pilley to go with him and look at the place and, through Price, sold him an undivided half interest in the place for $2,0.00 cash, subject to an incumbrance of $4,600, of which Pilley and defendant were each to become liable for one-half; that defendant represented to Pilley that he would pay the mortgage down to that amount, and that he had to have the $2,000 in cash and would immediately apply the same to' paying off the second mortgage, which was about to be foreclosed. Pilley is corroborated in this by a statement in the contract of purchase that the amount due was $4,600; a short while after Pilley purchased the undivided half interest, Price and defendant began negotiations to sell him the other half, and did succeed in making the deal with him, he giving defendant a $3,000 certificate of stock in the Local Building & Loan Association and two lots in Oklahoma City; that defendant had Pilley assign the stock to his brother and cashed it the day the deal was made; that this second deal was consummated in Oklahoma City; that the deed from Hawkins to Pilley also stated the unpaid balance of the indebtedness was $4,600, when in truth and in fact defendant had paid no part of either of the mortgages; that they were both in default and foreclosure proceedings started shortly after Pilley completed the deal. It is apparent from the record that this inexperienced grocer fell into- the hands of a couple of real estate sharks who' not only obtained the $2,000 cash, but also' obtained $350 more cash, $3,000 building and loan stock, and two Oklahoma City lots for their equity in a farm which evidently was not worth the amount of the mortgages, and that this deal was consummated because of the false pretenses and overreaching of defendant, assisted by Price.

The first error complained of is that the court erred in admitting incompetent, irrelevant, and immaterial testimony offered by the state and objected to' by defendant.

The particular objection is directed to the fact that, while the information alleged B. D. Pilley was the owner of the building and loan stock, yet the exhibit showed it was in the joint names of B. D. Pilley and Minnie Pilley, his wife, as joint tenants, that the assignment appearing on the stock showed that Minnie Pilley was still living, and that therefore there was a fatal variance between the proof and the crime charged, and did not tend to prove the crime charged for the reason the information charged B. I). Pilley was the owner of the building and loan stock.

The contention of defendant seems to be that the state must prove ownership as alleged, and to admit in evidence building and loan stock after proof that it was jointly owned by Pilley and his wife, when the information charged ownership in Pilley alone, constituted a material variance between the allegations and the proof and was prejudicial to defendant.

In a prosecution for obtaining money by false pretenses the allegation of ownership is material only where such allegation is relied on solely to identify the criminal act. In this information the property obtained is identified by the allegation “Local Building and Loan Association fully paid stock Certificate No. 21606 of the value of |3,000.00.”

In Ireton v. State, 29 Okla. Cr. 266, 233 Pac. 771, this court said:

“When an offense is charged in an information with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured is not material.”

Section 2560, C. O. S. 1921, provides:

“Where an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to' identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.”

Thus it appears that this court, in construing section 2560, supra, has already decided a like question raised in the case of Ireton v. State, supra, adversely to the position here taken by defendant.

It is next contended the court erred in overruling the demurrer to the evidence at the close of the state’s case. This contention is based upon two grounds:

First. That the evidence disclosed Pilley had in his possession an abstract delivered to him by defendant, showing the entire indebtedness against the property, and that this abstract was introduced in evidence.

It appears from the record the abstract was brought down to February 20, 1932, at 2 o’clock p. m., while the false pretenses here relied on were not made until the 15th day of March, 1932, and the very substance of the pretenses is that on March 15, 1932, defendant had reduced the indebtedness against the farm to $4,600, like he had promised to do on February 20, 1932', with the $2,000 given him by Pilley. Of course, what the abstract would disclose as the condition of the indebtedness on February 20, 1932, would cast no light upon the truth or falsity of defendant’s statement as to what the indebtedness was on March 15, 1932.

The material inquiry in the trial was, Did defendant make this statement of an existing fact on March 15, 1932? Was such statement false? Hid Pilley rely on it as being true, and was Pilley, by reason of such statement, induced to- part with his property? If so, defendant is guilty, and the conviction should stand irrespective of any notice Pilley may be charged with as to the condition of the indebtedness on February 20, 1932.

The second contention under this assignment of error is that by the terms of section 3072, O. ,S. 1931, the evidence of a complaining witness must be corroborated by two witnesses, unless the pretense or some note or memorandum thereof be in writing, either subscribed by or in the handwriting of the defendant.

It appears from the record that on March 15, 1932, when the false pretenses complained of were made and relied on, defendant executed a warranty deed and duly signed and acknowledged the same, which deed recites the transaction was made “subject to two mortgages totaling $4,600.” This evidence meets the requirements of section 3072, supra, and was sufficient to take the case to the jury.

Finally, it is contended the judgment should be set aside because the trial judge failed to instruct on the provisions of section 3072, O. S. 1931.

It is admitted that no request was made for such an instruction; neither was any exception taken to any instruction given by the trial judge. The attorney who represented defendant in the trial court evidently believed the requirements of section 3072, supra, were fully met as far as the evidence was concerned, and therefore saw no good reason to request an instruction on that theory of the law.

In Roberts v. State, 36 Okla. Cr. 28, 251 Pac. 612, 614, this court said:

“The defendant complains that the court failed to instruct the jury on certain conclusions that might be inferred from the evidence. It is the duty of the court, without request, to instruct the jury upon all of the essential issues raised by the evidence, but, where no' omission is pointed out, the trial judge need not submit an instruction on every question of law that might be involved, or touching upon every remote deduction that might be drawn from the evidence. Often too many instructions tend to make the instructions, as a whole, confusing, instead of elucidating the pertinent issues involved. Hopkins v. State, 28 Okla. Cr. 405, 231 Pac. 97; Coker v. State, 26 Okla. Cr. 230, 223 Pac. 711; Newcomb v. State, 23 Okla. Cr. 172, 213 Pac. 900; Thompson v. State, 26 Okla. Or. 121, 222 Pac. 568; Horn v. State, 31 Okla. Cr. 347, 238 Pac. 966.”

Certainly in the absence of any request for such an instruction this court would not hold that the defendant was prejudiced by the trial court’s failure to instruct under section 3072, supra, where the evidence on the part the state fully complies with the requirements of said section and it is apparent that defendant could not have been prejudiced by the same.

A careful examination of the record discloses no substantial error.

The evidence being sufficient to support the verdict of the jury, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


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    HENRY HINKLE, Jr., v. STATE.
    No. A-8620.
    March 16, 1934.
    Withdrawn, Corrected, and Refiled April 14, 1934.
    (32 Pac. [2d] 96.)

      Ben P. Williams, Homer Cowan, and T. R. Benedum, for plaintiff in error.
    J. Berry King, Atty. Gen., and Sam Lattimore, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, referred to hereafter as defendant, was convicted in the district court of Garvin county of the crime of robbery with firearms, in the robbery of the First National Bank of Lindsay, and his punishment fixed by the jury at imprisonment at hard labor in the state penitentiary for a period of 20 years.

It is first contended there was noi competent legal evidence to corroborate the admitted participants in the alleged robbery, which tended to connect defendant with the commission of the crime.

The evidence of the state was that the robbery was committed by E'. L. Warden, Joe Warden, Ewell Brook-shire, Bnster Murphy, and Pete Baxter, with defendant aiding*, abetting, and assisting them; that the car in which the robbers traveled to commit the offense was owned and furnished by Homer Bramble and driven by E. L. Warden; that Warden got the Bramble car off the streets of Lindsay and drove it out west of town; that defendant took those who- entered the bank toi commit the offense in his car to the appointed rendezvous; that they left his car at that point and entered the Homer Bramble car, which was driven immediately back to Lindsay by Warden, where Murphy, Brookshire, Warden, and Etheridge entered the bank, and by force of arms and through fear of the bank officials obtained’ f5,500 in currency and a large amount of negotiable notes and bonds; that those entering the bank forced two of the bank officers and two mechanics who> happened to be in the bank to accompany them as a shield to' protect them in their escape; that the robbery was planned by the defendant at his home, and that all the parties participating in the robbery were induced by defendant to engage therein; that defendant not only furnished his car, but furnished the weapons used in the commission of the offense, concealed the robbers at his home after the crime was committed, received the proceeds of the robbery from the robbers, and otherwise generally engaged in the commission of the crime.

That two days before the robbery, Claude Roberts, E. L. Warden, Pete Baxter, Robert Etheridge, and defendant made a trip to Oklahoma City* and visited the home of M'oman Pruiett, where defendant discussed the robbery of the two banks at Blanchard and the one at Lindsay with Pruiett, and that they obtained one of the guns used in the robbery and introduced in evidence by the state from Pruiett.

That the money received from the Lindsay bank was later hid in the home of George Hinkle, a brother of Henry Hinkle, who lived about two miles from Lindsay.

Joe Warden testified that after they brought the money to defendant’s house, defendant and Floyd Garrett left with it; that the next time he saw the money was in Oklahoma City, at the home of Jimmie Mathers, attorney, where it had been delivered; that the one dollar bills were in bundles containing $100, held together by paper bands; that the five dollar bills were held together by little stickers and were in $100 bundles; that the ten and twenty dollar bills were held together by little envelope clamps; that there was $2,100 in currency; that Mr. Mathers gave him $22 out of the money, which he used to buy himself a suit of clothes, shoes, cap, and tie.

That there was a pair of black gloves used in the robbery that were later identified as belonging to defendant.

The state admits its witnesses Floyd Garrett, Robert Etheridge, E. L. Warden, Ewell Brookshire, Joe Warden, and Claude Roberts were accomplices who actually participated in the robbery or aided and abetted the same, and that therefore their testimonv must be corroborated by other independent evidence tending to connect defendant with the commission of the crime.

All of these witnesses testified the robbery was planned at defendant’s home, and was carried out by them under his leadership and direction. If there was no' other evidence in the record tending to connect defendant with the commission of the offense, his contention would be good.

E. L. Warden testified he accompanied defendant to Oklahoma City, where defendant purchased a 32-20 Winchester rifle and a .34 caliber pistol from one Anderson, who conducted a pawn broker business in Oklahoma City. Anderson, though he would not undertake to identify any one as the purchaser, stated he sold the guns to a man giving the name of Henry Hinkle. Three disinterested witnesses testified that defendant was in Oklahoma City on the day these guns were purchased, and Edith Shafer testified the rifle looked like a gun defendant had in his car at her home about 30 days before the offense was committed. These guns were actually used in the robbery, and were later found by the officers where they were hidden by one of the robbers. The state’s Exhibit No. 4 was a .38 caliber Colts police positive pistol; this gun was used by Ewell Brookshire in the actual robbery. Brook-shire testified he got the gun at defendant’s house and that night, after the robbery, delivered it back to Hinkle. This gun, a-few days later, was found in defendant’s brief case in his office. Defendant admitted in his testimony he owned this gun, but denied it was used with his consent in the robbery.

Joe Warden testified defendant told Pete Baxter to get all the bonds and notes, and Baxter carried out instructions and demanded of Costello, one of the officers of the bank, the notes and bonds. Costello' testified defendant had some personal notes in the bank at the time of the robbery.

Mrs. Clarence Burford testified she saw Roberts and Etheridge the day of the robbery, near the place of the rendezvous, in a car- like defendant’s. Defendant did not deny that his car was used on this trip, but explained it by saying he had loaned it to Etheridge to drive to the country.

Charley Denson testified defendant came to his garage just before noon, gave him a quarter, and asked him to buy some roofing nails; that he purchased the roofing nails and brought them back to his place of business and left them on a table; that no one was there but defendant; that immediately after his return some parties came in needing some work done on their car, and that he did not see defendant after that time nor know what became of the nails.

Garrett testified defendant told him there would be nails in the car ü> be thrown out on the road by the robbers as they fled, to hinder the officers, if they were followed. Nails of this description were actually thrown from the car after the robbery.

In Johnson v. State, 52 Okla. Or. 86, 2 Pac. (2d) 601, this court said:

“Evidence corroborating an accomplice and tending to connect the defendant with the commission of the crime need not be direct, but may be circumstantial.”

In Brown v. State, 52 Okla. Cr. 110, 3 Pac. (2d) 237, 238, this court said:

“Section 2701, C. O. S. 1921, while providing that a conviction cannot be had upon the testimony of an accomplice unless such testimony is corroborated, only requires such corroboration as tends to connect the defendant with the commission of the crime.”

In Underwood v. State, 36 Okla. Or. 21, 251 Pac. 507, 509, this court said:

“The law prescribes no> standard for the strength of the corroborating evidence, and there is a failure to' corroborate only if there be no evidence legitimately having that effect.”

In Key v. State, 38 Okla. Cr. 169, 259 Pac. 659, this court said:

“Where the sufficiency of the evidence to corroborate an accomplice is challenged, this court will take the strongest view of the corroborating testimony that such testimony will warrant, and, if it can say that there is corroborating evidence tending to connect the defendant with the commission of the offense, it will uphold the verdict.”

Measured by the rules laid down in these cases, there was an abundance of evidence to corroborate the accomplice and warrant the jury in convicting defendant.

Defendant next contends the state failed to prove the incorporation of the First National Bank of Lindsay, and that such failure was fatal to the state’s case.

In United States v. Amedy, 11 Wheat. 392, 409, 6 L. Ed. 502', the Supreme Court of the United States, in an opinion by Mr. Justice Story, said:

“This is not the case where a suit is brought by the corporation to enforce its rights, where, if the fact of its legal existence is put in controversy upon the issue, the corporation may be called upon to establish its existence. * * * The case here is of a public prosecution for a crime, where the corporation is no party, and is merely collaterally introduced as being intended to- be prejudiced by the commission of the crime. Under such circumstances, we think, nothing more was necessary for the government to prove, than that the company was de facto organized, and acting as an insurance company and corporation. The very procurement of a policy by the prisoner, to' be executed by the company, was of itself prima facie evidence for such a purpose. In cases of the murder of officers, it is not necessary to prove that they are officers, by producing their commissions. It is sufficient to show that they act de facto- as such. In cases of piracy, it has been held sufficient to establish the proprietary title to the ship, by evidence of actual possession of the party claiming to be owner.”

In Guthery v. State, 24 Okla. Cr. 183, 216 Pac. 948, tbis court said:

“Where in an information for burglary it is alleged that the building burglarized was the store building of the Farmers’ Supply Company, a corporation, specific proof that such supply company was duly incorporated was not essential where there is evidence inferen fially indicating such incorporation and there was no controversy on this issue.”

To the same effect are Stephens v. State, 24 Okla. Cr. 351, 217 Pac. 1063; Gunter v. State, 16 Okla. Cr. 476, 184 Pac. 797.

The evidence in the case at bar shows the First National Bank of Lindsay, Okla., was engaged in the business of a banking institution, and had been engaged in such business for several years; that James Charles was bookkeeper, John Costello, Jr., a teller, John Costello, Sr., cashier, W. J. Garrett, vice-president, and JEt. C. Wooten, president. This evidence of the state was sufficient to inferentially establish that the First National Bank of Lindsay was duly incorporated.

Some contention is made that the robbery may have been with the consent and approval of the officials of the bank. Some of the robbers testified defendant told them he had it fixed with the bank SO' they never would be identified, but there does not appear to be anything in the robbery itself, or any of the evidence connected with it, to indicate that the robbery was with the connivance of the men who were in the bank and held up at the point of guns, or that it was with the consent of any official connected with the bank. Though, even if that condition existed, the connivance of such officials would not have protected defendant.

It is next contended the court erred in permitting the state to introduce in rebuttal the testimony of three witnesses, who' stated they saw defendant in Oklahoma City on the night of December 19, 1932, which was the time Claude Roberts and Robert Etheridge testified they obtained the gun from Moman Pruiett. Defendant in his testimony denied he was in Oklahoma City at the time of the purchase of the rifle and pistol from Anderson, or the obtaining of the gun from Moman Pruiett. It was proper for the state in rebuttal to show, if it could by disinterested witnesses, that defendant was in Oklahoma City on December 19th, as tending to corroborate the testimony of the robbers as to where they procured some of the guns used in the commission of the offense.

Other errors are complained of, but they are not of sufficient merit to require a special discusson.

The evidence being sufficient to support the verdict of the jury, and no- error appearing sufficient to require a reversal, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.