text:
    Don McDonald v. State.
    No. A-1813.
    Opinion Filed October 4, 1916.
    (152 Pac. 610.)
    1. FORGERY — -Indians—Deed to Allotment — -Validity, (a) In order to constitute forgery under the statute in this state, it is not essential that the document alleged to have been forged is capable upon its face of deceiving a third party. It is sufficient if the instrument is or purports to be the act of another, by which any right or interest in real property is or purports to be transferred. (b.) De,eds conveying lands allotted to members of the Five Civilized Tribes are not void on their face because a recital is contained therein giving the roll number of the allottee, even though such allottee may in fact be a restricted member of the tribe, as that term is ordinarily used in Oklahoma.
    2. FORGERY — Sufficiency of Evidence — Testimony of Accomplice. A conviction cannot be based upon the uncorroborated testimony of an accomplice. For testimony sufficiently corroborative under the law of this state to support a conviction, see opinion.
    3. DOCUMENTARY EVIDENCE — Telegram. A telegram, the genuineness of which is admitted, is admissible in evidence, although it may not be in the handwriting of the accused.' Dunbar v. United States, 156 TT. S. 185, 15 Sup. Ct. 325, 39 L. Ed. 390.

      Appeal from District Court, Tulsa County; L. M. Poe, Judge.

    Don McDonald was convicted of forgery, and appeals.
    Affirmed.

      Rittenhouse & Rittenhouse, for plaintiff in error.

      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Don McDonald, was tried and convicted at the May, 1912, term of the District Court of Tulsa county, upon a charge of forgery in the first degree, and his punishment fixed at imprisonment in the state penitentiary for a term of seven years. The information in this case is as follows:

“Be It Remembered:
That Pat Malloy, the duly qualified and acting county attorney for Tulsa county, Oklahoma, who prosecuted in the name and by the authority of the state of Oklahoma, comes now into the District Court for Tulsa county, state of Oklahoma, on this the 7th day of March, A. D. 1912, and gives the court to understand and be informed that'M. F. Wheatley, Don McDonald, W. Pyeatt, and George Crawford, on the 11th day of November, 1911, in Tulsa county, state of Oklahoma, and within the jurisdiction of this court, did unlawfully, wilfully, and feloniously, and with the intent to defraud one George N. Sanger, and while acting together and in concert with each other, forge one certain warranty deed purporting to be the act of George N. Sanger, by which forged deed rights and interest in real property was then and there and thereby purported to be transferred and conveyed to the said M. F. Wheatley, in the real property described' in said forged deed. Said forged deed being in words and figures as follows, to-wit:
GENERAL WARRANTY DEED.
This Indenture, Made this 11th day of November, A. D. 1911, between George N. Sanger, a Creek Citizen, Roll No. 2546, a single man of lawful age, Tulsa County, in the State o'f Oklahoma, of the first part, and M. F. Wheatley of Creek County, Oklahoma, of the second part.
Witnesseth, The said party of the first part in consideration of the sum of Two Thousand ($2000.00) and No/100 Dollars, the receipt of which is hereby acknowledged, does by these presents grant, bargain, sell and convey unto said party of the second part, his heirs and assigns, all of the following described real estate situated in the county of Tulsa, state of Oklahoma, to-wit: The Southeast quarter (SE %) of Section twenty-one (21) township Seventeen (17) north of range thirteen (13) of the Indian base and meridian, containing One Hundred and Sixty (160) acres, according to U. S. Government survey thereof.
To Have and to Hold the same, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in any wise appertaining forever.
And said George N. Sanger for himself and for his heirs, executors or. administrators, do hereby covenant, 'pnmfise and agree to and with said party of the second part at the delivery of these presents he is lawfully seized in his own right of an absolute and indefeasible estate of inheritance in fee simple in and to all and singular the above granted and described premises, with the appurtenances; that the same are free, clear, and discharged and unincumbered of and from all former grants, titles, charges, estates, judgments, taxes, assessments and incumbrances, of what nature and kind soever_and that_he will warrant and forever defend the same unto said party of the second part, his heirs and assigns, against said party of the first part his their heirs and assigns, and all and every person whomsoever, lawfully claiming or to claim the same.
In WITNESS WhereoE, the said party of the first part has hereunto set his hand the day and year above written.
Sign here George N. SaNGEr
W. Pyeatt
State oe Oklahoma, Tulsa County, ss.
Before me, W. M. Fleetwood, a Notary Public in and'for said county and state, on this 11th day of November, 1911, personalty appeared George N. Sanger a single man to me known to be the identical person who executed the within and foregoing instrument, and acknowledged to me that he executed the same as his free and voluntary act and deed for the uses and purposes therein set forth.
■W. M. Fleetwood,
(Seal) " Notary Public.
My commission expires Mar 4, 1914
State of Oklahoma, jl ulsa County, ss8
This instrument was filed for record on the 15 day of November A.. D. 1911 at 1:40 o’clock p. m.
(Seal) ' H. C. Walkley,
109-388 ■ Register of Deeds.
Contrary to the form of the Statutes in such cases made and provided, and against the peace and dignity of the State.”

A demurrer was interposed to this information upon the ground that it failed to state factá sufficient to charge a public offense. The statute upon which the conviction is based, and which was in force at the time the prosecution was instituted, is Section 2560, Snyder’s Compiled Laws, and is as follows:

“Every person who, with intent to defraud* forges, counterfeits or falsely alters: 1st, Any will or codicil of real or personal property, or any deed or other instrument being or purporting to be the act of another, by which any right or interest in real property is, or purports to be, transferred, conveyed or in any way changed or affected; or, 2nd, Any certificate or indorsement of the acknowledgment by any person of any deed or other instru ment which by law may be recorded or given in evidence, made or purporting to have been made by any officer duly authorized to make such certificate or indorsement; or, 3rd, Any certificate of the proof of any deed, will, codicil or other instrument which by law may be recorded or given in evidence, made or purporting to have been made by any court or officer duly authorized to make such certificate, is guilty of forgery in the first degree.”

Counsel’s first assignment of error, and the one most strongly relied upon in the brief as well as in the oral argument is based upon the contention that the information does not state a public offense on account of the fact that the deed set out as part of the said information recites the following language: “George N. Sanger, a Creek Citizen, Roll No. 2546, a single man;” it being their contention that this recital renders said deed void, and the information insufficient, without additional averments in the information showing Sanger to be capable of conveying the land free from Federal restrictions. In other words, counsel contend that because there is a conveyance of allotted lands, by an allottee, this court should declare the law to be that all such conveyances are presumed to be void and no person can commit crime by forging deeds to lands of such person if in fact they belong, to the restricted class. We cannot agree to any such doctrine. Deeds which recite that the grantor is an Indian allottee of any well known tribe or otherwise are not void on their face, and such has never been the law. In addition, the statute upon which this prosecution is based does not require that the document 'must be such that upon its face it is capable of deceiving a third party. This statute says that “Every person who, with intent to defraud, forges, counterfeits or falsely alters,” etc. . . . “any deed or other instrument being or purporting to be the act of another, by which any right or interest in real property is, or purports to be. transferred, conveyed,” etc. . . . “is guilty of forg-erv in the first degree.”

It is the duty of the courts of this state, when such can be done without violating any of the established' rules or canons of construction, to so construe the laws of the land that the rights of the law abiding .public shall be protected. This statute fairly and reasonably construed would penalize any ¡person falsely altering or forging a deed in the name of another, and clearly is broad enough to cover the transaction at bar. ' Counsel have extensively briefed ancE argued the propositions and various phases of the laws of the United States concerning, the removal of restrictions upon certain classes of allottees of lands in the Five Civilized Tribes, and have cited and discussed a large line •of authorities which tend^ to support the doctrine that a deed or document void upon its face cannot be the subject of forgery. Neither of these propositions is involved in this prosecution. In Roode v. The State, 5 Neb. 174, 25 Am. Rep. 475, the Supreme Court of Nebraska is quoted as supporting the doctrine contended for by counsel. In that case, the court held' that the document in question was void upon its face, and was not considering any question based upon the conditions presented here. 'That court, in discussion of the question before it, among other things — quoting from another authority — uses the following language:. “It (meaning the law) was made to protect men .in the enjoyment of their property, and if the instrument can by no possibility prejudice anyone in relation to his estate, it will iiot be an offense within the • statute.” . That is not the question here. The record clearly shows that Sanger was prejudiced by this forgery. So it is with a long line of authorities urged and considered by counsel. None of them supports the proposition that this deed was upon its face void. We have already said it was not void. To hold that the deed was void on its face would be in effect to say that every conveyance of land heretofore made, and most conveyánces which are hereafter made, are void upon their face, and therefore presumed to be fraudulent. Such contention is without merit wholly. It is a matter of common knowledge that one-half of the area embraced in the state of Oklahoma, and probably more, is comprised .of what was once and still is in a great measure Indian allotments and reservations. This court cannot say that a deed containing a recital that the grantor was an Indian allottee, is upon its face void and that facts aliunde must be pleaded to overcome the presumption. . All deeds to lands in this country are presumed to be valid.

The only other error argued in the brief or presented in the oral argument which it is necessary to consider is based upon the proposition that the conviction stands upon the uncorroborated testimony of the accomplice Wheatley. We are of opinion that this assignment is also untenable. The accomplice, Wheatley, testified minutely and in great detail to all the facts and circumstances leading up to the forgery of the deed. A Mrs. Raspberry, it seems, was the instigator of this criminal conspiracy. She first enlisted the co-operation of one Wheatley. and one McKellop, assuring them that it would require only $250.00 to secure a man to forge the name of Sanger and another man to witness the signature. Wheatley furnished money to her for the purpose of securing a man in Missouri to come down and sign the deed. As an encouragement and perhaps to relieve them of any fear of Sanger, she told them that Sanger was a fugitive from justice and lived in California and could not return to Oklahoma, because of having killed his brother here. McKellop and Wheatley went to see the land, and after a few days returned to Tulsa, and were met at the depot by Mrs. Raspberry and the defendant, McDonald. The following day, Mrs. Raspberry, McDonald, McKellop and Wheatley went to the Harris rooms for the purpose of signing the deed, but Wheatley did not like the appearance of the man be'fore whom the deed was to be signed and acknowledged, and refused to go further. The next day, Wheatley and McKellop again met Mrs. Raspberry and the defendant. Mrs. Raspberry told them the man from Missouri had not come, but she had a man in town who would sign the deed and another who would witness the deed. She said it would cost $75.00 to get the deed signed and witnessed. Wheatley gave her $75.00, and then returned to his home again. The following day they came to Tulsa again, and were met at'the depot by Mrs. Raspberry and McDonald. The four went up town; McDonald left them for a few minutes and returned again' having with him W. C. Pyeatt and George Crawford, and stated that these men would sign the deed. Pyeatt said he knew a notary before whom the acknowledgment could be taken. McDonald, Wheatley, Pyeatt and Crawford then walked up to the Turner building, and on reaching the stairway, McDonald asked one of them if the notary was upstairs and received an affirmative reply. McDonald then said to his co-conspirators: “I will wait at the foot of the stairs; they know me up there and I will not go up.” Wheatley, Crawford and Pyeatt went upstairs; someone showed them where the office of Fleetwood, the notary, was. They went in. Wheat-ley handed him the deed, Fleetwood filled • out the acknowledgment, put his) seal thereon, and said to Crawford: “Do you know what you are doing?” Crawford replied that he did. Fleetwood said: “You are selling a piece of land.” Crawford said he understood it. Fleetwood then turned to Pyeatt and said “Pyeatt, you know this man?” Pyeatt said he did; Fleetwood then asked Pyeatt to witness the deed. He did so. They then came out and found defendant waiting in the stairway, half way up. From here'they went to the Fountain Drug store where Mrs. Raspberry was waiting. Wheatley started to the depot, accompanied by McDonald. While waiting at the depot, Mrs. Raspberry, Pyeatt and Crawford came in. Mrs. Raspberry said she had left her purse at home, and requested Wheatley to pay Crawford and Pyeatt for signing and witnessing the deed. Wheatley gave Crawford a check for $15.00 and gave Pyeatt a check for $5.00. He also gave Crawford $2.00 in silver and $5.00 in currency. Wheatley, during the early negotiations, gave McDonald a check for $10.00. He wanted some money and Wheatley gave it to him with the understanding that it would be repaid out of his part of the proceeds from the sale of the land covered by the deed in question. It was agreed between all the parties that the money advanced by Wheatley1 should be paid first, and that the balance should be equally divided between McKellop, Wheatley, McDonald and Mrs. Raspberry. The testimony of Wheatley is so minutely definite that it carries with it every element of truthful and convincing narrative. The record abounds with circumstances which tend conclusively to establish that everything he says is true.

The rule by which to determine the sufficiency of corroborating evidence is stated in the syllabi of the opinion in Alderman v. Territory, 1 Okla. Cr. 562, 98 Pac. 1026, to be:

“1. To test the legality of a verdict in a case of larceny, where the jury has convicted a defendant upon the testimony of an accomplice, with independent evidence tending to connect the defendant with the commission of the offense, this court will take the strongest view of the corroborating evidence against the defendant that the evidence would warrant the jury in arriving at.
“2.,. Where a defendant is convicted on accomplice testimony, and the evidence is clear • and direct, this court will not reverse the judgment of the lower court, unless it is able to say that the record does not contain any evidence, independent of the testimony of the accomplice, which tends to connect the defendant with the commission of the offense.”

In People v. Martin (Cal. App. 295) 125 Pac. 219, the Supreme Court states the doctrine as follows:

“The statute does not require that the evidence necessary to corroborate the testimony of an accomplice shall tend to establish the precise facts testified to by the accomplice; and strong corroborative (evidence is not (necessary to support a judgment of conviction founded upon the testimony of an accomplice. Even though the circumstances (constituting the evidence offered and received in corroboration of the testimony of ad* accomplice be slight, such evidence is nevertheless sufficient to meet the requirements of the law, if, in and of itself, it tends to connect the accused with the commission of the offense'. People v. Barker, 114 Cal. 620, 46 Pac. 601; People v. Cleveland, 49 Cal. 577; People v. Clough, 73 Cal. 348, 15 Pac. 5.”

The record is replete with circumstances tending to show McDonald’s guilty connection with the forgery, outside' of the accomplice’s testimopy. Wheatley’s testimony is corroborated by William Lynch in all he said with reference to meeting a man who showed them Fleetwood’s office and as to defendant’s remaining on the outside. Lynch says that on November 11th his office was in the Turner building; that Fleetwood’s office was in the same building; that he knows the defendant, and that he saw him on the 11th of November. He further testified:

“Q. Tell the jury how you saw him and where you saw him; the circumstances attending it? A. Well, there were some gentlemen come to the office and wanted to know if I was a notary, and I told them I was not, and there was a notary on the floor. I taken them around to his room. I taken them around to his room and as I came back out I seen Don McDonald out in the hall there. ' '
“Q. To Fleetwood’s room? A. Yes, sir, I taken them around to Fleetwood’s room.” '

Further he testified:

"Q. Where did you see Don McDonald? A. Well, he was in the hallway, between Fleetwood’s office and'my office.
“Q. Did you walk by him? A. Yes, sir, I walked by him.
“Q. With these other people? -A. I didn’t see him as I went in with them.
“Q. You saw him after you came back? A. Yes, sir.
“Q. What was he doing, if .anything? A. Just standing there.”

Lynch was in no way interested in this transaction, and was not an accomplice. His testimony entirely corroborates that of the accomplice Wheatley and shows that McDonald was in the building, and that he, was waiting on the outside of Fleetwood’s door for the return of Wheatley, Crawford and Pyeatt. The deed- was forged in Fleetwood’s office. McDonald’s presence-there at that time can be accounted for upon no other' theory than that he was implicated in’the conspiracy formerly entered into by which the deed to this Indian’s land was to b'e forged and was forged. It shows that the plans- formerly made were then being carried into effect. In Alderman v. Territory, supra, where the corroborating evidence of the accomplice in a larceny case was the presence of the defendant near the place where the larceny was committed, this court said:

“While this evidence does not directly connect- the defendant with the offense, yet this court cannot say that it does not have this tendency, and in view of the clear and direct testimony of the accomplices we feel that the jury was authorized to convict the defendant.”

The accused, if it were true that he, as he stated, was not in the Turner building at that time, might well have furnished evidence as to his whereabouts elsewhere, but he chose simply to deny his presence there.

Wheatley also testified that he gave a check for $10.00 to the defendant on account of the Sanger land transaction, and that it was an advancement on that deal, and Wheatley was to be paid this amount out of the defendant’s portion of /the proceeds from the sale of the land. The check was made to A. J. Dabis at McDonald’s request, he stating that he could cash it better if it were made out in some other name. The check appears on page 53 of the record. He did receive this check. Although he denies this fact, George T. Brown testified that he received it from him; that McDonald handed the check to him, Brown, with $15.00 in money to pay on a collection against Betty Raspberry. That he, McDonald, had been to see Brown several times with -reference to the collection against Betty Raspberry.

The evidence of Partridge with reference to the execution of the oil and gas lease by Wheatley to him and the facts in connection therewith, are strong circumstances connecting the defendant with the forgery of the deed. Partridge says that he had looked up the record with reference to this land, and had found it was in the name of Welch, and was talking -to Welch about it. McDonald was in his office, and stated that the man from whom they were to secure the lease was down on the street, and that he would go and get him. Pie went down and saw Wheatley, who went to Sapulpa. McDonald put in a call for him and had him come back and they met at Partridge’s office that night when the oil lease was executed. No satisfactory explanation is made as to how he became possessed of such intimate knowledge with reference to the transaction. In Partridge’s office he was very anxious to have the trade carried through. This shows that he had more than a friendly interest in the matter. It appears throughout the evidence that he was continually calling Wheatley over the telephone and Wheatley says it was with reference to what disposition should be made of the Sanger'land. ITis’explanation of various telephone conversations is that they were with reference to the Hilly Bear case, but it does not appear wherein either Wheatley or the defendant were financially or otherwise interested in that matter. Wheatley testifies that before he left Oklahoma to go to Tennessee he told the accused that he would wire the latter as to his address so that he could keep him posted with reference to the Sanger land. The accused in his testimony admitted the receipt by him of a’ telegram from Wheatley, and the fact that he had sent one to Wheatley saying that everything was clear. He testified:

“Q. Do you know how many telegrams you sent him while he was in Tennessee? How many telegrams did you receive from him? A. Just one.
“Q. And you answered one? A. Yes, sir.
“Q. And told him everything was clear? A. Yes, sir.
“Q. And that that meant that the Hilly Bear case would come up at the time it was set? A. That they were not going to try the Hilly Bear case as they expected, is what it meant.”

It thus appears that only one telegram was sent by the defendant to Wheatley while he was in Tennessee, and he says he answered it. In his testimony he gives the substance of the telegram.

Counsel in the brief argue that this evidence is incompetent, but their position is not tenable. The accused admitted the- sending and receiving of the telegrams, but testified that they were not in reference to the Sanger land deal. In Dunbar v. United States, 156 U. S. 185, at page 196, 15 Sup. Ct. 325, at page 329 (39 L. Ed. 390), speaking with reference to a similar objection, the court said:

“Again, error is alleged in respect to'the admission in evidence of a certain telegram. The facts in respect to this matter are as follows: The witness Blum was stating that defendant telegraphed certain things to him. An objection being raised, he produced a typewritten telegram, and said that he received it from the defendant. It was further objected that it was not the original — the one prepared and signed by the defendant; whereupon the witness testified that it was delivered to him by the telegraph company, and that he afterwards .talked to the defendant about it, who confirmed it and admitted that he had sent it. Thereupon the court permitted the telegram to be read in evidence. In this there was no error. Whatever may be the rule in other cases, an admission by defendant that the writing which is offered is the message which he sent, is sufficient to justify its" introduction in evidence. An admission as to a writing is like an admission of any other fact, and when a competent witness testifies that a certain writing, which he produces, was received by him, and that the defendant admitted that he sent it to him, he has laid the foundation for the introduction of the writing, and this though it be not in the handwriting of the defendant.”

The telegram from Wheatley to the accused reads as follows: “Am in Knoxville tonight. Closed a small deal yesterday. Start home tomorrow. Keep this to yourself. Wire me at Nashville, Tenn., tomorrow how things are going.” And the accused answered: “Things are clear here. Wire me what day arrive home.” Accused says that these telegrams had reference to when the Hilly Bear case would be set, but there is nothing in the telegrams which could possibly have any connection with the Hilly Bear case. It would hardly be probable that if McDonald were wiring to Wheatley as to when a case would be set that he would say “Things are clear here.” More likely he would say that the case had been set for a certain time. These telegrams are strong evidence corroborating the witness Wheatley as to McDonald’s connection with the forgery of the deed.

There are many other circumstances and facts in this record which show the guilt of the accused beyond any doubt. The court expressly instructed the jury that they could not convict McDonald on the testimony of Wheatley unless Wheatley was corroborated by other evidence which in itself and without the aid of the testimony of the accomplice connected the defendant with the commission of the ofíense. When a case is thus properly submitted to a jury upon evidence so strong and convincing as that of Wheatley, and where other facts and circumstances in the case tend conclusively to connect the accused with the commission of the crime, the sufficiency of that evidence is ordinarily to be left, to the determination of the jury.

In Jinks McGill v. State, 6 Okla. Cr., 512, this court said that if there is evidence .which corroborates the accomplice and tends to connect the defendant with the commission of the crime, its sufficiency is for the determination of the jury, and in a case where the defendant is convicted on accomplice testimony and the accomplice's testimony is) clear and direct, this court will not reverse the judgment of the lower court, unless it is able to see that the record does not contain any evidence in corroboration of the testimony of the accomplice which tends to connect the defendant with the commission of the crime.

The testimony in this case overwhelmingly points to the guilt of the defendant, and nothing short of fundamental error would justify a reversal of the judgment. No such error is presented. The judgment is affirmed.

DOYLE, P. J., concurs; FURMAN, J., absent.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    DAWSON BEAL v. STATE.
    No. A-2406.
    Opinion Filed November 20, 1915.
    (152 Pac. 808.)
    1. INSTRUCTIONS — Proof. It is error for the trial, court to instruct the jury that, where the state makes out a prima facie ease, the defendant must prove the facts upon which he relies for an acquital by a preponderance of the evidence. It is only nee'essary for the defendant to raise a reasonable doubt of his guilt..
    2. GROUND FOR REVERSAL — Instructions. If, in the course of the trial, the court submits to the jury an instruction which has the effect of requiring the accused to establish his innocence or any other material fact beyond a reasonable doubt, and a conviction is had, a reversal will follow on appeal.
    3. INTOXICATING LIQUOR — Prosecution—Unlawful Intent — Prima Facie Evidence — Probative Effect. Under a provision of the act of 1913, eh. 26, declaring that the keeping in excess of a certain amount of intoxicating liquors shall be “prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquors," evidence of such possession is sufficient to establish the unlawful intent, unless rebutted, or the contrary proved, yet it does not make it obligatory upon the jury to convict after the presentation of such proof, but such evidence is competent and sufficient to justify a jury in finding a defendant guilty, provided it does in effect satisfy them of his guilt beyond a reasonable doubt.

      Appeal from County Court, Bilis County; A. L- Squire, Judge.

    Dawson Beal was convicted of a violation of the prohibitory law and appeals.
    Reversed.

      C. B. Beedy, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error was convicted on a charge that he did have the possession of five quarts of whisky with intent to sell the same, and his punishment was fixed at a fine of fifty dollars, and confinement in the county jail for thirty days. From the judgment following, rendered on the 19th day of December, 1914, an appeal was perfected by filing in this court'on February 22, 1915, a petition in error with case-made. Upon the.trial the court instructed the jury in part as follows:

“No. 2. If in this case you believe from the evidence that the defendant at the time and place alleged in the information had possession of more than four quarts of whisky, then it is your duty to find the defendant guilty as* charged in the information, unless you -further find that there has been shown by the evidéñce in this case facts or circumstances proving that the defendant had possession of such liquor for a lawful purpose.”
“No. 6. In this case, as in other criminal cases, the defendant is' presumed to be innocent until he is proved guilty by the state beyond a reasonable doubt, and before you can find the defendant guilty you must find from the evidence that the state has proven him guilty beyond a reasonable doubt, but you are further instructed that if the state has proven to your satisfaction beyond a reasonable doubt that the defendant had possession of more than four quarts of whisky at the time and place alleged in the information, then the state has furnished the degree of proof that is necessary, and all the proof that is necessary; unless it is shown by the evidence that such possession of more than four quarts on the part of the defendant was for some lawful purpose.”

The record shows the following objections made and exceptions taken:

“At this time and before the giving of the instructions to the jury the defendant objects to'the giving of instruction number two for the reason that the same invades the province of the jury; casts the burden upon the defendant to prove his innocence of the crime charged or the material elements thereof, and assumes the facts proven which are not in the evidence, or warranted by it, and that" said instruction is not the law as defined by the Criminal Court of Appeals regarding prima facie evidence.”
“And objects to the giving of instruction number six for the reason that said instruction casts the burden upon the defendant to show his innocence of the crime charged, and to prove to the satisfaction of the jury that he is not guilty of the crime charged in the information against him; that said instruction invades, the province of the jury, is prejudicial to the rights of the defendant, and denies the defendant a fair and impartial trial by invading the province of the jury.”

The attorney general has filed a confession of error, conceding that the objections made were well taken, citing Sellars v. The State, 11 Okla. Cr. 588 ,149 Pac. 1071; Caffee v. The State, 11 Okla. Cr. 485, 148 Pac. 680; Havill v. The State, 11 Okla. Cr. 483, 148 Pac. 683; Cowherd v. The State, 7 Okla. Cr. 1, 121 Pac. 1021.

There can be no doubt that the confession of error should be sustained. In the Caffee case it is held that:

“Under a provision of the act of 1913, chapter 26, declaring that the keeping in excess of a certain amount of intoxicating liquors shall be ‘prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquors/ evidence of such possession is sufficient to establish the unlawful intent, unless rebutted, or the contrary proved, yet it does not make it obligatory upon the jury to convict after the presentation of such proof, but such evidence is competent and sufficient to justify a jury in finding a defendant guilty, provided it does in effect satisfy them of his guilt beyond a reasonable doubt.”

In the Havill case it is held that:

“If, in the course of the trial, the court submits to the jury an instruction which has the effect of requiring the accused to establish his innocence or any other material fact beyond a reasonable doubt, and a conviction is had, a reversal will follow on appeal.”

In the Cowherd case it is held that:

“It is error for the trial court to instruct the jury that, wher'e the state makes out a prima facie case, the defendant must prove the facts upon which he relies for an acquittal bya preponderance of the evidence. It is only necessary for the defendant to raise a reasonable doubt of his guilt.”

The confession of error is sustained. The judgment is therefore reversed.

FURMAN and ARMSTRONG, JJ., concur.


text:
    JOHN BOND v. STATE.
    No. A-2422.
    Opinion Filed November 20, 1915.
    (152 Pac. 809.)
    RAPE ■ — ■ Attempt to Commit — Information—Elements of Offense. To • constitute a good charge of attempt to commit the crime of rape under section 2803, Rev. Laws 1910, some act done towards the commission of the crime and the failure must be alleged, and it is also necessary to allege an intent to feloniously have sexual < intercourse by committing a rape as defined by section 2414, Rev. Laws 1910.
    (Syllabus by the Court.)

      Appeal from Superior Court, Tulsa County; M. A. Breckinridge, Judge.

    John Bond was convicted of an attempt to commit rape and appeals.
    Reversed.

      T. L. Wallace, for plaintiff in error.

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

Plaintiff in error, John Bond, was tried, convicted and-sentenced to imprisonment in the penitentiary for the term of seven years. To reverse the judgment an appeal was taken by filing in this court on March 17, 1915, a petition in error with case-made.

The charging part of the information is as follows:

“that John Bond on the 9th day of March, A. D. 3914, in Tulsa County, State of Oklahoma, and within the jurisdiction of this court, did unlawfully, wilfully, and feloniously attempt to commit the crime of rape, by then and there attempting to have sexual intercourse with a female person, not the wife of the said defendant, John Bond, to-wit, Maurine Dawson, a female under the age of sixteen years, with the intent then .and there upon the part of the said defendant to have unlawful’ sexual intercourse -with the said Maurine Dawson,- contrary to, etc.”

Upon arraignment the defendant demurred’ to the information on the ground, “That the facts stated do not constitute a public offense.” The demurrer was overruled and .exception taken. The attorney general has filed the following confession of error:

“This is an information for attempted rape. Stripped of verbiage it simply charges that the defendant John Bond ‘attempted to commit a rape’ by ‘attempting to have sexual intercourse with Maurine Dawson.’ No facts constituting tire offense are set forth so that the defendant and the court may know with what proof the allegations of the information are to be met.
. An attempt is a trial, or endeavor, or an effort to gain a point; particularly applied to an unsuccessful endeavor. See Webster’s Dictionary. Bishop says, 1, section 728, ‘An attempt is an intent to do a particular thing which the law has declared to be a crime, coupled with an act toward the doing.’
All our authorities hold that this act, or these acts, must be plead.
See Williams v. State, Okla. Cr. 10 335, 136 Pac. 599;
Hogan v. State 50 Fla. 86, 39 S. 39-465;
Yarbrow v. State, N. C. 77-524;
Thompson v. People, Ill. 96-161;
Frazier v. State (53 Kans. 87, Pac. 36-58, 42 Am. St. Rep. 274;
State v. Russell (64 Kans. 798), Pac. 68-615;
Kinningham, S. Ind. 119-332, 21 N. E. 911;
State v. Wilson, 30 Conn. 30-500;
P. & P., 3-98; 17-663;
Wharton’d Criminal Law, section 227;
Kelly’s Crim. Prac., section 5;
3 Bishop’s New Crim. Prac., section 81;
Chitty’s Crim. Law, section 815.
While there is some little discord in the authorities the rule, we think, is well established that in all classes of ‘attempted crimes’ the facts and elemeiits constituting that attempt must be set forth in the pleading. We, therefore, confess error in the above cause.”

Our penal code provides:

“Any person'who attempts to commit any crime, and in such attempt does any act toward the commission of such crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the punishment of such attempt, as follows

Section 2803 Rev. Laws.

Construing this section in the case of Williams v. State, 10 Okla. Cr. 336, 136 Pac. 599, this court held:

“To constitute a good charge of attempt to commit the crime of rape under section 2803, Rev. Laws, some act done towards the commission of the crime and the failure must be alleged, and it is also necessary to allege an intent to feloniously have sexual intercourse by commiting a rape as defined by section 2414, Rev. Laws.”

We are of opinion that the confession of error is well founded and should be sustained. It also appears from an examination of the record that the evidence is not sufficient to support the verdict. The judgment is therefore reversed. '

FURMA Nand ARMSTRONG, JJ., concur.


author: ARMSTRONG, J.

text:
    NOAH SULLINS v. STATE.
    No. A-2393.
    Oinion Filed November 23, 1915.
    (152 Pac. 809.)
    APPEAL — .Affirmance. When an appeal is taken to this court from a judgment of conviction in a trial court, such appeal must be duly and diligently prosecuted, otherwise, a motion to affirm for failure to prosecute will be sustained.

      Appeal from County Court, Pottawatomie County; Pial Johnson, Judge.

    Noah Sullins was convicted of violating the prohibitory law, and appeals.
    Affirmed.

      G. A. Outcelt, for plaintiff in error.

      R. McMillan, Asst. Atty Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Noah Sullins, was convicted at the November,-1914, term of the County Court of Pottawatomie county, on a charge of unlawfully conveying intoxicating liquor from one place in said county to another place therein, and his punishment fixed at a fine of $100.00 and imprisonment in the county jail for a period of thirty days. The appeal .was duly lodged in this court upon the 10th day of February, 1915, and the cause properly assigned for- submission on the 3rd day of November, 1915.

No briefs were filed upon behalf of the plaintiff in error and no appearance made for oral argument. Upon motion of the attorney general, the judgment of the trial court is affirmed on the ground that the appeal has been abandoned, and no effort made on behalf of plaintiff in error to prosecute diligently as required by law. Mandate is ordered forthwith.

DOYLE, P. J., concurs; EURMAN, J., absent.


text:
    GEORGE WOODLAND v. STATE.
    No. A-2386.
    Opinion Filed November 23, 1915.
    (152 Pac. 810.)
    DISMISSAL OF APPEAL — Grounds — Pardon. When the pardoning power extends clemency in the form of permanent parole or pardon, subsequent to the appeal being perfected in this court, the appeal should be dismissed without consideration, upon motion of the Attorney General, in the absence of good- cause shown to the contrary. ' •

      Appeal from District Court, Payne County; A. H. Huston, Judge.

    George Woodland was convicted of a felony, and appeals.
    Dismissed.

      McAdams & Haskell and D. W. Weldon, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the-'State.
   ARMSTRONG, J.

The plaintiff in error, George Woodland, was convicted at the May, 1914, adjourned term of the District Court of Payne county on a charge of maintaining a place wherein intoxicating liquors were kept for sale, and his punishment fixed at a fine of $700.00 .and imprisonment in the state penitentiary -for a term of five years. No briefs have been filed on behalf of the plaintiff in error. It is suggested by counsel that the acting Governor granted a pardon to plaintiff in error subsequent to the filing of the appeal in this court, and that the appeal had been abandoned. There being no further reason why the cause should receive further consideration at the hands of this court, the appeal is dismissed.

DOYLE, P. J., concurs; FURMAN, J., absent.


text:
    CHARLES CARTER v. STATE.
    No. A-2095.
    Opinion Filed December 1, 1915.
    (152 Pac. 1132.)
    1. INSTRUCTIONS — Burden of Proof, (a.) Instructions wliieli tend to shift the burden of proof by requiring the defendpit to establish his defense by a preponderance of the evideneé should not be given in any criminal ease.
    (b.) For an instruction condemned on account of the fact that it tends to place such burden upon the defendant, see opinion.
    .2 INSTRUCTIONS — Intimation of Opinion. Instructions submitted by a trial court to the jury should be clear and absolutely free from any suggestion as to tho verdict the court expects: Any instruction which has the effect of intimating to the jury that the court expects a verdict of guilty, or expects the jury to go into the realm of possibilities for. the purpose of finding* a verdict of guilty is fundamentally wrong.
    3. FAIR TRIAL — Duty, of Court. It is the duty of a trial court to see that a fair and impartial trial is accorded to every man that is brought before it on a firiminal charge.

      Appeal from District Court, Stephens County; Prank M. Bailey, Judge.

      Charles Carter was convicted of assault with intent' to kill, and appeals.
    Reversed.
    /. B. Wilkinson, Robert Burns and Gilbert & Bond, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

Charles Carter was convicted at the January, 1913, term of the District Court of Stephens county, on a charge of assault with intent to kill, and his punishment fixed at imprisonment for the term of one year and one day in the state penitentiary.

Among many assignments of error urged, those based upon the giving of the following instructions by the court are the only features we deem necessary to review:

“Instruction No. 5. You are further instructed that a criminal intent is necessary to constitute the crime charged against the defendant. The statute uses the words ‘every person who commits an assault upon another by means of any deadly weapon or by such other means and force as is ligely to produce death with the intent to kill any person.’ The acts charged against the defendant, if you find beyond a reasonable doubt that the same were performed, must be found to have been intentionally and wrongfully done, in order to justify a conviction; that is, that they were intentional and unjustifiable and likely to produce death.
“You are further instructed that for the acts charged in the information to be justifiable they must have been performed in this case in the lawful defense of the defendant against an unlawful assault upon him by the complaining witness. If the jury believe from the evidence that the defendant and the complaining witness met at the time and place stated in the information and there held a conversation in a peaceable and lawful manner and the said complaining witness without just reason or excuse became enraged at the defendant and thereupon assaulted the defendant in such a manner as to induce in the mind of the defendant a reasonable and well-grounded belief that he, the defendant, was actually in danger of losing his life, or suffering great bodily harm at the hands of the said complaining witness, then he was justified in defending himself and so doing might use such force as was reasonably necessary under the circumstances to protect himself against such threatened danger, even to the extent of performing the act complained of in the information and it would be justifiable.”
“Instruction No. 10. You are further instructed that if in the consideration of the evidence in this case under the instructions of the court, you do not find the defendant guilty of an attempt to kill and are also unable to find him guilty of an assault with intent to do bodily harm, you should then consider the evidence under the instruction of the court to determine whether or not the defendant was guilty of an assault and battery upon the complaining witnes.s, and if in the consideration of the evidence you find beyond a reasonable doubt that the defendant at the time and place stated in the information did assault and beat the said complaining witness in the manner charged in the information without intent to kill or commit any great bodily harm upon him and that such assaulting and beating was of a character not likely to produce great bodily harm and was done without intent to kill or to do great bodily harm, you should in such case find the defendant guilty of an assault and battery unless you find that such assault and battery as performed was justifiable in which case you should find the defendant not guilty.”

The first instruction quoted was condemned by this court in Nichols v. The State, 10 Okla. Cr. 247, 135 Pac. 1071. In the opinion we said: “We thing this instruction tends to shift the burden of proof by requiring the defendant to establish his defense by a-preponderance of the evidence. All that is necessary in criminal cases is that the evidence, or the want of evidence, as a whole, raises a reasonable doubt as to the guilt of the person charged. If the jury had any reasonable doubt as to whether the defendant was justified in defending himself against the assault made upon him by the complaining witness, it was their duty to return a verdict of not guilty. It was not incumbent upon the jury to find affirmatively that the defendant acted in self-defense before they could acquit him.”

The principal enunciated in instruction No. 10 was also considered in the Nichols case, supra, wherein we say: “It will be observed that the language of the court is, ‘if you are unable to find the defendant guilty of the crime of attempt to kill, as charged in the information, and you are also unable to find him guilty of an assault with intent to do bodily harm.’ In the case of Bauer v. State, 3 Okla. Cr. 529, 107 Pac. 525, similar language is condemned. The court said: ‘This might have been understood by the jury that the court expected a verdict of guilty, or construed as an intimation that it was the duty of the jury under the evidence to find the defendant guilty. The jury 'should have been told if, after a fair and impartial consideration of all of the evidence in the case, they were not convinced beyond a reasonable doubt of the defendant’s guilt, as charged in the indictment, then it would be their duty to consider as to whether he was guilty of the next lower offense embraced in the charge. It is never the duty of the jury to convict the defendant until, after a fair and impartial consideration of all the evidence and circumstances, they are convinced beyond a reasonable doubt of his guilt.’ ”

It is conceded by the assistant attorney general in his brief that these instructions present erroneous propositions of law. It is suggested, however, that a new trial would probably result , in another conviction, although it is further conceded that there is a conflict in the testimony.

From a careful examination of the record, we are of opinion that this judgment should not be permitted to stand, and that the doctrine of harmless error cannot be invoked to uphold the same. The instructions are wholly unfair. There is no indication in the record that the trial court used any particular effort to see that all the rights of the accused were duly safeguarded. Instructions identical in principle and language were condemned long before this trial, by well written opinions of this court, and should have been followed by the trial court. The judgment is reversed and the cause remanded with direction to grant a new trial.

DOYLE, P. J., concurs; FURMAN, J., absent.


author: PER CURIAM.

text:
    M. B. STEPHENS v. STATE.
    No. A-2410.
    Opinion Filed December 2, 1915.
    (152 Pac. 1134.)
    1. INTOXICATING- LIQUORS — Illegal Sales — Evidence. Evidence held sufficient to warrant a conviction of selling intoxicating liquors in violation of the prohibitory law.
    2. APPEAL — Verdict. Where there is testimony in the record clearly tending to support the verdict, it will not be disturbed on appeal, on ground of insufficiency of the evidence.

      Appeal from County Court, Canadian County; W. H. Maurer, Judge.

    M. B. Stephens, convicted of a violation of the prohibitory 'law, appeals.
    Affirmed.

      I. H. Lookebaugh and /. N. Roberson, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was tried, convicted and sentenced to be confined in the county jail for sixty days, and to pay a fine of one hundred dollars on an information charging that he did sell whisky to one Elmer Sweezy.

The only question presented is the sufficiency of the evidence to support the verdict.

Elmer Sweezy, a Cheyenne Indian, testified that the defendant sold him a bottle of whisky in the town of Calumet; that he paid him a‘dollar and a quarter for the whisky, and that he was arrested by W. M. Roscum, a deputy sheriff who took the bottle of whisky from him.

W. M. Roscum testified that he was a deputy sheriff and followed the defendant and Sweezy from a pool-hall to an out house, and heard the defendant say, “Dollar and a half,” that he opened the door and Sweezy was putting the whisky into his pocket.

There was no testimony offered by the defendant. It is well settled that this court will not reverse the judgment of the trial court upon the ground that the evidence is insufficient to support the verdict when there is testimony in the record tending clearly to support the verdict of the jury. In our opinion the verdict of the jury is fully supported by the testimony taken on the trial. The judgment is therefore affirmed.


text:
    LAURA COURTNEY v. STATE.
    No. A-2385.
    Opinion Filed December 1, 1915.
    (152 Pac. 1134.)
    1. INSTRUCTIONS — Burden of Proof. Instructions which place upon the accused the burden of proving any issue in a criminal case by a preponderance of the testimony, are fundamentally erroneous.
    2. INSTRUCTIONS — Issue. Instructions should be clear cut and concisely state the rule of law applicable to the issue under the proof.

      Appeal from County Court, Garfield County; Winfield Scott, Judge.

    Laura Courtney was convicted of violating the prohibitory law, and appeals.
    Reversed.
    /. W. Steen and L. C. McLean, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Laura Courtney, was convicted at the November, 1914, term of the County Court of Garfield county on a charge of selling intoxicating liquor, and her punishment fixed at imprisonment in the county jail for thirty days, and a fine of fifty dollars. The only assignment of error founded in merit is based upon the contention that the court erred in giving the following instruction to the jury:

“You are further instructed, that the testimony of the defendant is that she was not at the place said alleged violation of the law took place and did not know anything about it and had nothing to do with the violation alleged. That is what in law is called an alibi, and the defendant is not required to establish that defense beyond a reasonable doubt but may establish it by a preponderance of the testimony, and in this connection before you can find a verdict against the defendant you must be satisfied beyond a reasonable doubt that she was at the place where the violation is alleged to have occurred by the state.
“The state must establish beyond a reasonable doubt that the defendant was present and committed or participated as alleged in the commission of the violation alleged, and if the proof leaves it doubtful in the minds of the jury whether the defendant was present at or absent from the place where the crime was alleged to have been committed, the defendant should be acquitted.”

We do not feel that a lengthy discussion of the error contained in the foregoing instruction is warranted. It is not the law in this jurisdiction and never has been that an accused has to establish any particular fact in a criminal ca^e by a preponderance of the testimony. Alibi is a defense recognized by the law of the land. The burden in a criminal prosecution is always upon the state and is never placed upon one accused of crime. It is only necessary in any criminal trial, in order to warrant an acquittal, that the whole testimony or lack of testimony shall be sufficient to raise a reasonable doubt asl to guilt. To say that an accused has to establish his defense by a preponderance of the testimony would be to repeal the law which guarantees every man a fair and impartial trial, and clothes him with the presumption of innocence until his guilt is established beyond a reasonable doubt. Just what prompted the trial court to insert the Second paragraph of this instruction is not clear; it is evident that sufficient consideration was not given the same before it was submitted to the jury.

It is the duty of trial courts to give instructions to the jury which, are clear and concise. The foregoing instruction is contradictory in material respects, and anything but clear when considered as a whole.

The judgment is reversed and the cause remanded with direction to grant a new trial, according to law.

DOYLE, P. J., concurs!; FURMAN, J., absent.


text:
    JEWEL WILLIAMS v. STATE.
    No. A-2405.
    Opinion Filed December 2, 1915.
    (152 Pac. 1135.)
    1. RAPE — Information—Sufficiency Against General Demurrer. An information which after alleging venue and time charges that the defendant did then and there com'mit the crime of statutory rape, in the manner and form as follows: “did wilfully, unlawfully, and feloniously have voluntary sexual intercourse with H. W., an unmarried female under thfe age of sixteen years and not the wife of the said J. W., he the said J. W. then and there being over the age of eighteen years at the time the alleged act of sexual intercourse was committed, contrary to, etc.,” sufficiently charges the crime of statutory rape and a demurrer thereto was properly overruled.
    2. SUFFICIENCY OF EVIDENCE. Evidence on a trial for statutory rape held sufficient to sustain the verdict and judgment of conviction, and that no material error was committed upon the trial.

      Appeal from District Court, Stephens County; Prank M. Bailey, Judge.

    Jewel Williams was convicted of statutory rape, and appeals.
    Affirmed.

      Womack & Brown, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error was tried and convicted on an information charging that he “did wilfully, unlawfully and feloniously have voluntary sexual intercourse with Rosa Williams, an unmarried female under the age of sixteen years, and not the wife of said Jewel Williams. He, the said Jewel Williams then and there being over the age of eighteen years* at the time the alleged act of sexual intercourse was committed, contrary to, etc.”

The'jury assessed the punishment at imprisonment in the penitentiary for one year and one and one-half months. In pursuance of the verdict the court rendered judgment on the 27th day of November, 1914.

From the judgment an appeal was taken by filing in' this court on February 26th, 1915, a petition in error with case-made.

From the evidence given upon the trial it appears that the prosecutrix, Rosa Williams, lived with her parents near the town of Doyle, in Stephens county, and at the time the offense charged is alleged to have been committed was in her fifteenth year; that the defendant William^ resided in the same community, and was in his twentieth year. She testified that he had been keeping “company” with her for more than two years. That he accomplished three acts of sexual intercourse with her by force and against her will; the first in May, the other two in June, 1913. That they were engaged to be married at the time. That the following 17th day of August, was her sixteenth birthday. That as the result of the defendant’s conduct, she became pregnant and gave birth to a child on the 24th day of March, 1914.

The defendant as a witness in hisl own behalf testified that his first and only act of sexual intercourse with the prosecutrix occurred on the 13th day of July, 1913, and was with her consent; that he was twenty years of age at the time; that two or three weeks before the baby was born he procured a marriage license and offered to marry her.

From the record it appears that no criminal complaint was filed against the defendant until March 21st, 1914.

The errors assigned are the usual ones, that the.verdict is contrary to law and to the evidence, and that the court erred in overruling the demurrer to the information.

We are of the- opinion that the information is a good one and the demurrer thereto was very properly overruled. The record discloses that the testimony of the defendant in his own behalf is in effect a plea of guilty as charged. The evidence was submitted to the jury under an unexceptional charge and no ground for reversal of the judgment rendered on the verdict as disclosed by the record. We therefore conclude that the judgment of conviction should be and the same is hereby affirmed.

FURMAN and ARMSTRONG, JJ., concur.


text:
    JOE McCLATCHEY v. STATE.
    No. A-2464.
    Opinion Filed December 2, 1915.
    (152 Pac. 1136.)
    1. HOMICIDE — 'Evidence—Instructions—Defenses. In a homicide ease the defendant testified that the deceased came to his home armed with a pistol and commenced the difficulty; that he took the pistol from him, and that the deceased then assaulted him with a knife cutting his clothes and he then shot the deceased in self-defense. Exception was taken to the following instruction: “You are also instructed that there is no evidence in this ease to show that the homicide was justifiable or excusable within the meaning of those terms as used in the statutes of the state of Oklahoma, therefore I will not undertake to define those terms to you.” Held, prejudicial error.
    .2 BURDEN OF PROOF — Reasonable Doubt — Degree of Offense. The burden does not rest upon the defendant, to establish even to a reasonable probability, the truth of an affirmative defense; if, upon the evidence both for the state and the defendant a reasonable doubt is created as to the guilt of the defendant, he is entitled to the benefit of it, and where the crime charged is distinguished into degrees the defendant is entitled to the benefit of that doubt, as well with respect to the degree of the crime as to every essential element of that degree, and in these respects the burden never shifts from the state to the defendant.
    (Syllabus by the Court.)

      Appeal from District Court, Haskell County; W. H. Brozvn, Judge.

    Joe McClatchey, was convicted of murder and appeals.
    Reversed.

      Henry Carr and A. L. Beckett, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, herein referred to as the defendant, was informed against for the crime of murder alleged to have been committed by killing one Columbus I-Iess by shooting him with a pistol. Upon the trial the jury found the defendant guilty of murder assessing the punishment at imprispnment in the penitentiary for. the term of his natural life. A motion for a new trial was duly filed, overruled and judgment was rendered in pursuance of the verdict on the 22nd day of December, 1914. To reverse the judgment an appeal was perfected by filing in this court on May 19, 1915, a petition in error with case-made.

■It appears from the testimony of C. N. Wilson, Warren Culver, O. E. Nance, and Jack Stansell, the witnesses for the state, that they and the defendant, McClatchey and the deceased, Columbus Hess, were together at the home of the witness Wilson which was three miles west of Tamaha, in Haskell county, and went from there to the home of the defendant. That all the parties were drinking alcohol and all became more or less intoxicated ; that witness Wilson and the' deceased had a difficulty and drew their knives and the defendant told them to give him their knives. Wilson gave him hid knife and the deceased refused. The defendant with a pistol in his hand advanced on the deceased who was backing away from him and fired one shot into the ground. The deceased said, “that don’t scare me a damn bit,” and the defendant fired the fatal shot. Death resulted in a few minutes. As a witness in his own behalf the defendant testified that when the difficulty started he took the pistol from the deceased and shortly after the deceased assaulted Wilson with a knife. That he asked the deceased to give him his knife and the deceased threatened to cut him and said, “I will give it to you but it will be in the guts,” and he reached out and struck at him with a knife, cutting his clothes and he then shot him in self-defense.

The principal question in the case is whether the jury were properly instructed by the court with respect to the aspects introduced into the case by the testimony of the defendant.

The court gave the following instruction to which an exception, was taken:

“You are also instructed that there is no evidence in this case to show that the homicide was justifiable or excusable within the meaning of those terms as used in the statutes of the state of Oklahoma, therefore I will not undertake to define those termd to you.”

The attorney general has filed a confession of error in part as follows:

“The instructions of the. .court usurp the province of the jury and take from them the right to pass on the degree of the crime and as a fact tells them that there is no self-defense, or justifiable or excusable homicide in this cade. We think this was error and confess the same to the court.”

We are of the opinion that the confession of error is well founded and should be sustained. On a trial of an indictment or information, questions of law are to be decided by the court and questions of fact are to be decided by the jury, and the jury must be left entirely free to determine the facts, the weight of the testimony and the credit to be given the witnesses. It also appears that the effect of instructions numbered six and seven, given by the court, was to place the burden of proof of justifiable homicide in self-defense on the defendant. These instructions were not objected to, or exceptions taken thereto, however, as this case must be tried' again, we think it is proper to remark that the rule id well settled that the burden does not rest upon the defendant, to establish even to a reasonable probability the truth of an affirmative defense; if upon the evidence'both for the state and the defendant, a'reasonable doubt is created as to the guilt of the defendant, he is entitled to the benefit of it, and where the crime charged is distinguished into degrees, the defendant is entitled to the benefit of that doubt, as well with respect to the degree of the crime charged and with reference to every essential element of that degree, and in all these respects! the burden never shifts from the state to the defendant. We are of the opinion that the defendant has not had that fair and impartial trial which 'the law guarantees to one accused of crime. It follows that the conviction and judgment should be reversed, and a - new trial ordered.

The warden of the penitentiary will surrender the plaintiff in error to the sheriff óf Haskell county, who will hold him in custody until otherwise ordered according to law.

. FURMAN and ARMSTRONG, JJ„ concur.


text:
    ED ALEXANDER v. KINGFISHER.
    No. A-2502.
    Opinion Filed December 14, 1915.
    (153 Pac. 209.)
    APPEAL — Dismissal. An appeal will not be considered by this court when the plaintiff in error is a fugitive from justice and cannot be made to respond to any judgment or order which may be made in the case, and on proper motion and proof, the appeal will be dismissed.

      Appeal from County Court, Kingfisher County; R. P. Shutter, Judge.

    Ed Alexander was convicted in the County Court on appeal from a judgment of the police court of tlie city of Kingfisher.
    Appeal dismissed.

      Bradley & Bradley, for plaintiff in error.

      John T. Bradley, Jr., City Atty., for defendant in error.
   PER CURIAM.

Ed Alexander,. plaintiff in error, was convicted in the County Court of -Kingfisher county, upon his appeal from a conviction in the .police court, upon a complaint charging the sale of a quart of whisky, contrary to the provisions of section 1, of Ordinance No. 182 of said city. In pursuance of the verdict of the jury, the judgment of the County Court was rendered on the 12th day of May,- 1915, and he was sentenced to pay a fine of fifty dollars and to be confined in the city jail of the city of Kingfisher for thirty' days. From the judgment an appeal was taken by filing in this court on July 15, 1915, a petition in error, with case-made.

No briefs have been filed and the city attorney has filed a motion to dismiss the said appeal. Which motion omitting formal parts and exhibits thereto- attached is’ as follows: ....

“MotioN to Dismiss Appeal.
Comes now the above named defendant in error, City of Kingfisher, and moves the Court to dismiss the appeal in the above entitled action for the reason that the plaintiff in error, Ed Alexander, is now and has been since the 22nd day of November, 1915, a fugitive from justice from the State of Oklahoma, whose whereabouts is now unknown. That on November 22nd, 1915, said Ed. Alexander was the defendant in three other criminal actions pending in the County Court and District Court and also was the defendant in an action pending in the Police Court of said city. That on November 22nd, 1915, the bondsmen of said Alexander in three of the actions against him surrendered the said Ed. Alexander in open Court and were discharged from liability on his appearance bonds in said three criminal cases. 'That oii said 22nd day of November, 1915, after said bondsmen had surrendered said Alexander and after they had been released from liability on his said appearance bonds and after a commitment had been duly issued to the Sheriff of said County of Kingfisher, commanding said sheriff to confine said Alexander in jail in default of bond, he, said Ed Alexander, escaped from said Sheriff. That since said November 22nd, 1915, said sheriff and his deputies have made diligent search for said Ed Alexander but have been unable to find said Alexander in the State of Oklahoma and have been and are now unable to ascertain the whereabouts of said Ed. Alexander. That on November 19th, 1915, a warrant was issued by the Police Court of the City of Kingfisher on a complaint charging said Ed. Alexander with the unlawful possession of intoxicating liquors. That said warrant was duly delivered to the Chief of Police of said City. That said Chief of Police has been unable to arrest said Alexander as commanded in said warrant for the reason that he, said Chief of Police, after diligent search has) been and is now unable to find said Alexander or ascertain his whereabouts.
That the facts stated in this motion are shown to be true by the affidavits of W. B. Blair, County Attorney, W. M. Rutherford, Under Sheriff, and L. E. Werner, Chief of Police and the certified copies of the Commitment and warrant hereinbefore mentioned, all of which are hereto attached and made a part hereof.
John T. Bradley, Jr.,
City Attorney.”

By., numerous decisions of this court it has been held that an appeal will not be considered by this court, when the plaintiff in error is a fugitive from justice and cannot be made to respond to any judgment or order which may be rendered in the case; and, on proper motion and proof the appeal which such conditions are disclosed, will be dismissed.

Tyler v. State, 3 Okla. Cr. 179, 104 Pac. 919, 26 L. R. A. (N. S.) 921;

Jacobs v. State, 3 Okla. Cr. 648, 108 Pac. 429, 139 Am. St. Rep. 985;

Tydings 1. State, 4 Okla. Cr. 659, 112 Pac. 759;

Tanner v. State, 5 Okla. Cr. 298, 114 Pac. 360;

Morey v. State, 6 Okla. Cr. 166, 117 Pac. 724;

McGraw v. State, 7 Okla. Cr. 105, 122 Pac. 242.

From the failure to file briefs, it is evident that the appeal in this case has been abandoned.

Following the rule laid down in, the cases cited, the motion to dismiste the appeal is sustained, and the cause remanded to the County Court of Kingfisher county.


text:
    DOTSON WALKER v. STATE.
    No. A-2255.
    Opinion Filed December 11, 1915.
    (153 Pac. 209.)
    1. WITNESSES — Discretionary Killing — Competency of Witness. When objection is made to a witness, on the ground of incom-peteney by reason of nonage, the competency of the witness is a mixed question of law and fact to be determined by the trial court upon an examination of the witness, and only a manifest abuse of judicial discretion in deciding that a child is competent to testify, will warrant interference with such decision on appeal.
    2. WITNESS — Competency of Child. There is no precise age fixed at which children are excluded from giving evidence. Under the statute (section 5050, Kev. Laws), intelligence and not age is the proper test by which the competency of a child as a witness must be determined, and where it appears that a child witness had sufficient intelligence to receive just impressions of the facts respecting which she is to testify, and the capacity to relate them truly, and has received sufficient instruction to appreciate'. the difference between right and wrong, and a proper consciousness of the punishment of false swearing, an objection on the ground of incapacity and ineompeteney was properly overruled. , . .
    3. RAPE — Physical Examination — Discretion. In a prosecution for rape the prosecutrix being a child seven years old, the defendant demanded that the court order a physical examination of thp prosecutrix by a competent physician, which demand was denied by the court. Held, that under the peculiar circumstances of the case it was a manifest abuse of discretion on the part of the trial court to refuse to make the order.
    4. RAPE — Ground for Reversal — Evidence. Any legal evidence from which the jury may legitimately adduce guilt or innocence is admissible, if when taken with other evidence in the case its relevaney appears, and the rejection in a criminal case of proper testimony offered by the defendant constitutes prejudicial error.

      Appeal from District Court, Wagoner County; R. C. Allen, Judge.

    Dotson Walker, was convicted of rape and appeals.
    Reversed.
    An indictment, charging plaintiff in error ;with the crime of rape upon one Bessie Burgess, was presented in the District 'Court of Wagoner county, August 15, 1913. The crime of rape in the first degree is therein charged to have been committed by the defendant on the 15th day of September, 1911.’
    A statement of the case and the material testimony id as follows:
    “Q. How old are you, Bessie? A. . Nine.
    “Q. Where do you live, Bessie? A. With Mr. Cole.
    “Q. Where were you. brought from yesterday ? A. Brought from home ?
    “Q. The orphans home? A. Yes, sir.
    “Q. At Pryor? A. Yes, sir.
    “Q. Bessie, when you came in here awhile ago and held up your hand did you know what was meant when he asked you, told you that he was swearing you, did you know that he wad swearing you to tell the truth? A. Yes.
    “Q. Sis, now, don’t be scared, just answer the question. Did you ever go to Sunday school?- A. Yes, sir.
    “Q. You have gone to Sunday school, what do they teach you there at Sunday school? About who?
    “Objection overruled.
    “Q. Who do they teach you about? A. About God.
    “Q. And do they teach you about where you would go if you are a bad girl and tell stories? .A. Yes, sir.
    “Q. What would become of you if you would tell a story here and be a bad girl, where would you go when you died? A. Go to the Boogerman.
    “Q.. If you are a good girl and always tell the truth and be a good little girl, then when you die where will you go ? A. Go to God.
    “Mr. Robertson: I think she is qualified.
    “Mr. Reed: The defendant objects. Objection overruled.

      “EXAMINATION BY COUNSEE FOR DEFENDANT.
    “Mr. Reed:
    “Q. Bessie, did you know the meaning of an oath when you held up your hand and swore to tell the truth, do you know the meaning of that oath, do you know what it means? A. No, sir.
    “Q. Do you have any idea what it means, Bessie? A. No, sir.
    “Re-Direct Examination.
    “Mr. Dickey:
    “Q. You know that you should tell the truth, don’t you, when you hold up your hand? A. Yes, sir.
    “Mr. Reed: We object as being incompetent evidence.
    “The Court: I think she has qualified.
    “Q. Now, Bessie, do you know Dotson Walker? A. Yes, dir.
    “Q. How long have you known him? A. A long time.
    “Q. Did you ever live at his house ? A. Yes, sir.
    “Q. What did you call him when you lived there with him, what did you call Dotson Walker when you lived there; by what name? A. Daddy.
    “Q. Now, Bessie, do you remember any time that Dotson Walker ever did anything bad with you ?
    “Objection made and overruled.
    “Q. Do you know when he did bad things with you ? Just answer the question, you don’t want to be scared, you just want to answer those questions and tell the truth. Do you remember when Dotson Walker did bad things with you?
    “Same objection overruled.
    “Q. Judt answer that now? A. Yes, sir.
    “Q. Now tell us what he did? Where was that Bessie that he did these bad things with you ?
    “Objection overruled.
    “Q. Where was that Bessie? A. In the crib.

      “Q. In the crib there where he lived at his house? A. Yes, sir.
    “Q. Now when he did these bad things with you what would he do, just tell the jury now what did he do when he would take you down there to the crib, you just go on ahead and 'tell the jury what he would do when he would take you down there to the crib.
    “The Court: Don’t be afraid, just talk to the jury there and tell them what he would do.
    “Q. What would he do? A. Get on top of me.
    . “Q. Would he make you pull your clothes! up ? Just answer that. A. Yes, sir.
    “Q. He would and then after he would make you pull up your clothes what would he do, what would he do after he would make you pull up your clothes?
    “The Court: Just talk right out like you were at home. ,
    “A.' He would get on top of me.
    “Q. ■ He would get on top of you, would he unbutton his pants? A. Yes, sir.
    “Q. And then what would he do after he- got on top of you ?
    “The Court: Just answer it, what would he do then, just tell the man what he would do.
    “Q. You just talk right out now, don’t be afraid, all of these people here are your friends and they just want you to tell the truth, just tell what would he do after he would pull up your dress and after he would unbutton his) pants, he would get on you then would he?
    “Objection overruled and exception taken.
    “Q. And then would he put anything in you?< A. Yes, sir.
    “Q. Did that thing that he put in you go in you Honey? A. Yes, sir.”
    It is agreed that the defendant objects to every question and has his exceptions so as not to interfere with the witness here.

      “Q. When he put that in you and when he took that thing out of his pants did he put it in you? A. Yes, sir.
    “Q. Did it go clear in you? Did he make you bleed? A. Yesi, sir.
    “Q. Do you remember one day when you were down there in the crib? A. Yes, sir.
    “Q. And you were laying there and he was on top of you and you cried out to him not to do it? A. Yes, sir.
    “Q. Why did you do that Bessie, was it because he was hurting you? A. Yes, sir.
    “Q. When you cried out to him that way and told him not to do that, was that thing in you then? A. Yes, sir.
    “Q. You could feel it in there? A. Yes, sir.
    “Q. And then when you got up you were bleeding?
    “The Court: I think the objection ought to be'sustained to that, it is a little leading. The last three answers are stricken.
    “Q. When he was on top of you Honey what was he doing? Just tell these men what he was doing? A. I don’t know.
    “Q. You don’t know, was he hurting you? A. Yes, sir.
    “Q. And when you got through how were you then, did you look at yourself? A. Yes, sir.
    “Q. What did you see, did you see anything on yourself? A. Yed, sir.
    “Q. What was it Honey? A. Blood.
    “Q. What did you tell him? A. I told him to quit.
    “Q. Did you tell him anything else? A. No, sir.
    “Q. Did you hollar out, were you crying? A. Yes, sir.
    “Cross EXAMINATION.
    “Mr. Reed.:
    . “Q. Who told you to tell this story — tell this jury who told you to tell this story, tell it. A. This man right there.

      This man right here? Do you know Bill Brady? A. “Q. Yes, sir.
    You know Uncle Bill don’t you? A. Yes, sir. “Q.
    Did you know Uncle Ollie Walker? A, Yes, sir. "Q-
    Did Uncle Ollie Walker, tell you to tell this, story ? A. “Q- . Yed, sir.
    Did Bill Brady tell you to tell this story ? A. Yes, sir. “Q-
    “Q. Did Ollie Walker tell you he would buy you some new shoes if you would tell this story? A. Yes, sir. ,
    “Q. He did? A. Yes, sir.

      “Q. Did Bill Brady tell you he would buy you a new dress if you would tell this story? A. Yes, sir.
    “Re-Direct Examination.
    “Mr. Dickey:
    “Q. Everything you have told today is the truth, isfa’t it? A. . Yes, sir.
    “Q. And I never told you to tell anything, I just told you I wanted you to tell the truth, isn’t that right? A. Yes, sir.
    “Q. Then what you have told here is' the truth? A. Yes, •sir.
    “Re-Cross Examination.
    “Mr. Reed:
    “Q. You know Ollie Walker and you know Bill Brady? A. Yes, sir.
    “Q. Did you have a talk with either one or both of them Bessie when you came down here to testify before that body of men they'called the Grand Jury up stairs, did you see them then? A. Yes, sir.
    “Q. And you talked with both of them didn’t you?' A. When ?
    “Q. When you came down here from Pryor Creek to tell thigl story they told you to tell up stairs there to the Grand Jury to that body of men called the Grand Jury you talked to them then, didn’t you? A. Yes, sir.

      “Q. And they told you again that they would get you a new dress and a pair of shoes if you would tell the story on Daddy, didn’t they? A. Yes, sir.”
    William_ Brady, the second witness for the state testified that he was a citizen of the Creek Tribe of Indians, and had known Dotson Walker for twenty years; that he lived about a mile from him, and that he knew Bessie Burgesis since she was a little child. His further testimony was as follows:
    “Q. Do you remember the occasion of riding by Mr. Walker’s house in the fall of 1911 and hearing screams? A. Yes, sir.
    “Q. How were you riding? A. I was riding along the road, and I heard some one hollaring, says: ‘O, Daddy, you are killing me, Daddy you are hurting me.’ And I got it located, it was right in the old house and I got off my pony and 'peeped through the crack and he was* on top of her.
    “Q. Who was? A. Mr. Walker.
    “Q. All right, how was he dressed? A. Why I could not see on account of his overcoat.
    “Q. What were their positions? A. Why it seems to me like that he was on top of her and there was about that much of her legs sticking out on that side.
    “Q. I believe you stated that you peeped through the crack ? A. Yes, sir.
    “Q. Then what happened Mr. Brady? A. I then went back and got on my horse and rode up to the house, that was about a 120 steps, I suppose about that far, and got down and was sitting on the. end of a log — and the little girl came along with a little corn in her arms and I says, ‘What is the matter Bessie?’ and she says, ‘Daddy was doing it.’
    “Q. What else did she slay? A. I says, ‘Did he hurt you?’ She says, ‘Yes, made me bleed.’ I says, ‘Now go on be a good girl and try and not go with him down there.’ That is all I said.
    “Q. What county and state was that in? A. Wagoner County, Oklahoma.

      “Q. About what month was that Mr. Brady? A. I don’t exactly know the date of the month but it was either in September or October.
    “Q. Of what year? A. 1911.
    “Cross ExamiNation.
    "Mr. Reed:
    “Q. You talked to this little girl about this since that date? A. No, sir, I didn’t talk with her at all, I told her to' go on and be a good little girl.
    “Q. You didn’t talk with her Uncle Bill when she came down here and went before the grand jury? A. No, sir, I never seen her.
    “Q. If the little girl testifies that you told her you would buy her a new dress if she would tell this jury.on her daddy she is mistaken ain’t she, she is wrong about it, you didn’t promise her anything? A. No, sir, I never even talked with her, I never seen her.
    “Q. How does it come that you waited here two years after that time before you ever told anybody about this? A. Why, I didn’t know exactly how to get at it but the next thing I was afraid of the lynching.
    A Juror: Why didn’t you interfere when you saw that man with this little girl under him down in that crib, why didn’t you interfere right there and sftop it? A. Why I don’t know, I was afraid that I might get into trouble over it.
    “The state rests.
    “The defendant demurs to the evidence as not being sufficient to make a case.
    The Court: Demurrer overruled.
    “The Court: I think it is well to announce now Mr. Reed so that you will know how to meet the ruling of the court by the evidence in the case that it will be the holding of the court in this case, in view of the evidence that has been introduced, that the state is not confined to any particular day but that any day or date within three years) prior to the date the Grand Jury returned this indictment fixes this offense.

      “Mr. Reed: To which remarks of the Court and ruling of the Court and notice served on counsel for the defendant the defendant excepts.”
    Mrs. Sarah Walker called by the defendant testified as follows:
    “Q. Are you Grandmother Walker? A. Yes, sir.
    “Q. Is Dotson Walker, the defendant in this case, your son? A. Yes, dir.
    “Q. Grandmother, tell this jury where you live? A. I live out here about five miles west of the river.
    “Q. Do you know Bill Brady? A. Yes, sir.
    “Q. How long have you known him? A. O, I expect I have known him twenty odd years.
    “Q. You may tell the jury whether or not he has up until recently been a frequent visitor and friend of your family? A. He has.
    “Q. You may tell the jury whether or not he is such at this time and if not why not? A. Well, he stayed around our house and I got tired of him staying there, I was not able to feed him, and it made him mad and he don’t stay there now.
    “Q. Do you remember where you were on the 15th day of September, 1911 ?
    “Mr. Dickey: Objected to ad incompetent, irrelevant and immaterial.
    “The Court: Objection sustained.
    “Mr. Reed: If the court please, now I don’t want to be—
    “The Court: I have passed on it, and I don’t care to hear argument.
    “Mr. Reed: The defendant excepts for the reason it is denying the defendant a constitutional right of a fair and impartial trial.
    “The Court: T know what the law- is on this subject.
    “Mr. Reed: Does the Court hold that the .evidence of the defendant in a transaction of this kind without proving any time whatever or if having proved a different time from the time alleged in this indictment the State does not elect to take any specific time, that you could just generally vary from the indictment so that you could convict the defendant.
    “The Court: The State had announced that it rested its case upon the incident occurring the day that Brady testified that he was at the house.
    “Mr. Reed: That is the problem Your Honor what day?
    “The Court: Now he has not fixed the day, the girl has not fixed the day, the Grand Jury didn’t fix the day.
    “Mr. Reed: I submit the indictment.
    “The Court: The Grand Jury simply said it was on or about and that is the way all informations read and the law'holds that you can prove it was any day within the statutory period. That is the holding of the Court and where this witness was on the 15th is incompetent, irrelevant and immaterial, to any issue in this case.
    “Mr. Reed: I submit to the Court with all courtesy that it is the theory of the defendant at this time that if the court holds that we can’t prove where this prosecutrix was on the day as alleged in the indictment that the defendant is being denied the right of a trial by jury.
    “The Court: I do not want to hear any statements of that kind or argument of that character.
    “Mr. Reed: I can’t introduce evidence here in the behalf of the defendant then at all, I am forced to just quit in the case if the Court holds that is the law.
    “Mr. Reed: We will excuse this witness as far as we are concerned then. I will ask that Bill Brady be recalled to ask him one question.
    “Q. Are you the Bill Brady who testified in this case a moment ago? A. Yes, sir.
    “Q. Uncle Bill did you have a conversation with Sarah Watkins about a year ago this time in which you told her that you had promised this little girl a new dress to tell this story against her father. A. A year ago ?
    “Q. Yes, just about this time a year ago ? A. No, sir.”

      Sarah Watkins testified that about a year ago she lived out on Billy Creek on the same farm that Dotson AValker and his mother lived on and at that time Bill Brady told her that he had promised to get the. little girl, Bessie Burgests, a new dress and clothes if she would tell the story that her father had criminal intercourse with her.
    As a witness in his own behalf, the defendant Dotson Walker, testified that he had lived near Wagoner, in Wagoner county for about twenty-five years, and had known Bessie Burgess since she wad about a week old; that he married her mother when Bessie was about two years old; that his wife, Bessie’s mother died September 21, 1911; that at that time they were living with his mother Sarah Walker, and after her mother died Bessie remained with his mother. He denied all acts of improper conduct with the prosecutrix; that he supported his mother and his two1 children born of the marriage with Bessie’s mother, a boy now about seven years old and a girl four years' old. That Mr. Cole wanted Bessie and kept after him for her; that he told him that he could not do anything with her, and he said he would take her and try her a week and so he gave her to him; and then after-wards sent her off to the orphan’s home.
    The record shows that when the case was called for trial the defendant demanded a physical examination of the prosecutrix by a competent physician, which demand was denied by the court.
    P. E. Reed and E. L. Bolin,

      For -plaintiff in error.

    Chas. West, Atty. Gen., and
    Smith C. Matson, Asst. Atty. Gen.;

      For the State.

   DOYLE, P. J.

This was an indictment presented in the District Court of Wagoner county, August 15, 1913, against Dotson Walker, plaintiff in error, for rape, alleged to have been committed on or about the 15th day of September, 1911, upon the person of Bessie Burgess, a female child under the age of fourteen years. On a trial before a jury the defendant was found guilty of rape in the first degree as charged in the indictment and his term of imprisonment in the penitentiary was fixed at ten years. The court overruled a motion for a new trial and rendered judgment on the verdict, to reverse which the defendant appealed by filing in this court May 2, 1914, a petition in error with case-made.

Of the various) errors complained of it is only necessary to note those based upon the rulings of the court on the admission and exclusion of evidence, and the sufficiency of the evidence to sustain the verdict.

The first question presented is, did the court err in holding the child Bessie Burgess competent as a witness?

Our statute provides:

“The following persons shall be incompetent to testify:
“First. Persons'who are of unsound mind at the time of their production for examination.
“Second. • Children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly.”

Section 5050 Rev. Laws.

Under the statute when a witness is objected to, on the ground of incompetency by r.easton of nonage, or want of intelligence, it is the province of the trial court to determine the witness’ competency, and its decision will not -be reviewed unless there is a clear abuse of discretion, or the court admits or rejects the witness upon an erroneous view of a legal principle.

Adams v. State, 5th Okla. Cr. 347, 114 Pac. 347.

The examination of the witness, Bessie Burgeste, shows that she was nine years old; that she knew When she held up her hand she was swearing to tell the truth; that she had attended Sunday school and had learned about God, and if she was a good girl and always tell the truth she would go to God; that if she would tell a story she would go to the Boogerman.

Counsel for the defendant then asked her if she knew, “the meaning of an oath.” She, answered, “No, sir.” It is contended that this answer of the witness shows incapacity arid incompetency, and therefore, “The court committed an abuse of discretion in permitting her to be sworn and to testify as a witness.”

There id no precise age fixed at which children are excluded from giving evidence. Under the statute the competency of children is to be determined not by their age, but by the degree of understanding which they appear to possess. As a general rule the child should appear capable of distinguishing between good and evil and should be of sufficient intelligence to have a just appreciation of the difference between right and wrong, and a proper consciousness of the punishment of false slwearing.

In this case no question seems to have been made as to the witness’ capacity to receive just impressions respecting the facts upon which sflie was to be examined. While she stated that she did not understand the nature of an oath, as possibly many an adult might do if required to define the nature of the crime of perjury,, we are satisfied that she understood the difference between right and wrong and the danger of false swearing, and that she was of sufficient intelligence to appreciate the conditions in which she was placed. Courts of justice should regard substance, not words, and a child that has an adequate sense of the impropriety of falsehood does understand the nature of an oath in the proper sense of the term, even though she may not know the meaning of the word oath, and may never have heard that word used.

Williams v. United States, 3 App. D. C. 335.

In this case it does not appear by the preliminary examination of the witness that she was incapable of receiving just impressions of the facts) about which she was to testify or of relating them truly. For the reasons given we are of opinion that this witness was properly permitted to testify.

It appears from the record that when the case was called for trial the defendant demanded that a physical examination of the prosecutrix by a competent physician should be made. Which demand was denied by the court and exception allowed.

It will be seen from, the statement of the testimony that the evidence adduced to establish the corpus delicti is of a very doubtful and inconclusive character; it consists exclusively of monosyllable answers by the child to leading and suggestive questions propounded by the county attorney and on her cross-examination sfce unhesitatingly states that her uncle Oliver Walker promised to buy her new shoes and her uncle Bill Brady promised to buy her a new dress if she would tell this story to the grand jury, and that before the trial they told her again they would get her a new dress and shoes if she would tell this story. In view of the unsatisfactory character of the testimony of the child witness) and the fact that there is a direct conflict in her testimony, and that of the only other witness produced by the state, we think that the cour.t erred in refusing the defendant’s demand, that a physical examination of the child be made by a competent physician. While, “any sexual penetration however slight, is sufficient to complete the crime.” Section 2416 Rev. Laws, there must be proof of some degree of entrance of the female organ, and the practice seems to be not to permit a conviction in those cases in which it is alleged violence was done, without medical proof of the fact, whenever such proof is attainable. If the private parts of the defendant entered those of the child, then only seven years of age, as the testimony of the state tends to show, the marks of penetration would be permanent and would be the best evidence of the actual commission of the crime charged.

It appears that when the state rested the court announced “that it will be the holding of the court in this case, in view of the evidence that has been introduced, that the state is not confined to any particular day but that any day or date within three years prior to the date the grand jury returned this indictment fixes this offense.” And when the. defendant’s mother, the first witness for the defense was called, the court upon the objection of the county attorney refused to permit the witness to testify where she was or where the prostecutrix was on the day alleged in the indictment on the ground that such testimony "is incompetent, irrelevant and immaterial to any issue in this case.”

While the announcement of the court may be a correct general statement of law as applied to a variance between the time fixed in an indictment and that proven upon a trial, it was not a fair and explicit statement of the rule as it should have been applied to the facts in evidence in this case. The only testimony tending to dhow the time of the commission of the offense was that of the witness Brady, who stated that “it was either in September or October of the year 1911.” The defendant was entitled to know the particular offense that he was called upon to defend against and to know approximately the time when it was committed, and we think that under the peculiar circumstances of this case, the tmcalled for announcement of the court was prejudicial to the substantial rights of the defendant. We also think that the evidence rejected by the court was relevant, and competent as a preliminary inquiry, and that the remarks! of the court excluding the same, could not have been otherwise than prejudicial to the defendant. A brief reference to a few facts of the case is all that is necessary to show the materiality of the evidence offered on the part of the defendant and rejected by the court. The evidence on the trial showed that the wife of the defendant, the mother of the prosecutrix died within a week from the date alleged in the indictment, and that the defendant’s mother made her home with the defendant at the time the evidence for the state tends to show the alleged crime was committed.

The fact that no complaint was made until about two years after the alleged outrage, and that this delay isi unexplained are circumstances which should be considered in connection with the utterly improbable statement of the despicable wretch who would have it inferred from his testimony that he' witnessed the commission of a most revolting and atrocious crime committed upon a helpless child without protest on his part, or the manhood to attempt to protect her or to at least make his* presence known so as to prevent further abuse and outrage. A defendant in a criminal prosecution is entitled to a legal trial, conducted in accordance with the rules of law; and the question of his guilt or innocence should be determined upon legal evidence. Where material evidence has been offered on the part of the defendant, and erroneously rejected by the court, we are not at liberty to say that the error is merely technical, or that the substantial rights of the defendant have not been prejudiced. The defendant has the right to submit evidence of such character to the jury in order that it may paste upon its weight and credibility, and if he be deprived of that right, it is a substantial one,' which, when properly presented to this court by exceptions reserved will require a reversal of his conviction.

Other questions are raised but we forbear from.further discussion of this case. Enough has been said to indicate’ that we are of the opinion that the defendant did not have such a fair and impartial trial as he was entitled to under the law. If the unnatural -and revolting crime charged has been committed, and if the defendant be guilty, it can be proven on another trial con-1 ducted more in accordance with the rules of law than the one under consideration.

The judgment of conviction is reversed and a new trial awarded.

FURMAN and ARMSTRONG, JJ., concur.