text:
    BILL LUCAS et al. v. STATE.
    No. A-4869.
    Opinion Filed Jan. 14, 1924.
    (221 Pac. 798.)
    (Syllabus.)
    1. Evidence — Confessions Induced by Promise or Threat Inadmissible. Confessions induced by a promise of benefit or a threat of harm made to a defendant by a prosecuting attorney or an officer having him in custody will be deemed involuntary, and will be inadmissible in evidence.
    2.' Same — Competency of Confession Determined by Court in Absence of Jury — Right to Have Evidence Regarding Confession to Jury. Where the competency of a confession is challenged on the ground that it was not voluntary, its admissibility as evidence is primarily a question for the court, which should be determined by the court in the absence of the jury; but the defendant is entitled to have the evidence in regard to the facts and circumstances under which the confession was made given anew to the jury — not for the purpose of permitting the jury to pass upon its competency, but for the purpose of enabling it to judge what weight and value should be given to it as evidence. The jury may disregard it if they are not' satisfied that the confession was voluntarily made.
    3. Appeal and Error — Witnesses—Denial of Right of Cross-Examination of County Attorney Called as State’s Witness Erroneous —Error Cured by Accused Calling Him as Own Witness. When the state calls the county attorney as a witness, he is subject to the same rules as any other witness, including the right of the defendant to cross-examine. A denial of this privilege is error, but the error is cured by the defendants’ making the county attorney their own witness and interrogating him at length upon the question of whether the confession was voltary and going into all the details that might have been brought out upon cross-examination when he was the state’s witness.
    4. Evidence — Voluntary Confession not Rendered Inadmissible by Failure to Warn Accused Under Arrest nor by Fact that Questions ’ Propounded Assumed Guilt. The fact that the defendants were under arrest and were not warned that any statement made by them might be used against them would not ■ alone render any voluntary statement made by them inadmissible; neither would the fact that the questions propounded assumed that they were guilty, nor the fact that the officers told it would be better for them to tell the truth.
    5. Third Degree Methods Discussed. The practice of “sweating” the accused, or applying what is known as the “third degree," to procure confessions, is discussed in the opinion.
    Appeal from District Court, Texas. County; Arthur G. Sutton, Judge.
    Bill Lucas and another were convicted of conjoint robbery, and they appeal.
    Affirmed.'
    F. Hiner Dale and John L. Gilson, for' plaintiffs in error.
    The Attorney General and1 J. Roy Orr. Asst. Atty. Gen., for the State.
   BESSEY, J.

The plaintiffs in error above named, here referred to as the defendants, were by information' filed in the district court of Texas county on May 17, 1922, charged with the crime of conjoint robbery, in that they willfully and with force and threats took from the person of Otis Turner certain money and other property. They were found guilty as charged, and the punishment of each fixed at five years’ imprisonment in the state penitentiary. From the judgment of the trial court they appeal.

Texas county is one of the western counties of Oklahoma, being a part of what is known as the Panhandle, bounded on the south by Texas and on the north by Kansas, and traversed by the. Rock Island Railway from Texhoma on the Texas border, diagonally across the county to Liberal, Kan., just over the border, passing through Guymon, the county seat, located near the center of the county.

Otis Turner, the person alleged to have been robbed, was a resident of Liberal, Kan., and was a traveling salesman for Swift & Co. He visited various towns in Texas county, making his rounds by automobile and selling to the merchants meats, canned goods, and other products put out by Swift & Co.

On the 2d day of May, 1922, there was a public dance held at Texhoma, on the Texas side of the town, and Otis Turner attended this dance. At this time there resided in Guymon a woman whose name was Frances Smith and who was employed as a waitress in a cafe there. She occupied rooms in the same house with these defendants, both of whom were married men living with their wives in this house, along with other roomers. On the evening preceding the dance at Texhoma Frances Smith boarded the train and went to Texhoma, where she also attended the dance. During the progress of the dance, near midnight, Frances Smith inquired of Otis Turner whether he intended to drive through to Guymon after the dance, and, if so, whether he would permit her to ride with him. Turner replied that he would not know until the dance was over. After the dance, about 2 o’clock of the morning of May 3d, Turner went to a restaurant on the Oklahoma side of Texhoma, and as he came out he again met the Smith woman, who asked permission to ride with him to Guymon. Turner told her she might, provided she could drive the car. The Smith woman said she could do that, and they both got into the ear and with the woman driving proceeded along the Atlantic and Pacific Highway towards the town of Guymon. At a point about three-fourths of a mile from Texhoma two highwaymen appeared, stopped the car and at the point of a pistol forced Turner to get out of the car onto the ground and hold up his hands while the highwaymen took from him a bill-fold containing $5 in money, together with a ticket for a prize fight at Guymon and a check, issued to Turner by Swift & Co., of the amount of $94.52. Turner and the Smith woman then proceeded to Guymon, where they drove to the residence of the defendants, arriving there between 3 and 4 o’clock that morning.

Turner was probably in an intoxicated condition, and there was some disturbance at the home of the defendants. At the trial defendants offered to show that Turner was highly intoxicated and sick from overindulging in liquor and had to be assisted into his car.- After Turner left this place he drove on into Liberal, where he later notified the officers that he had been robbed. Turner was unable to identify the robbers, but for some reason the officers suspected the Smith woman and that the defendants were implicated. All three were taken to the county attorney’s office and were put through a process of “sweating.”

The Smith woman was given her liberty and she boarded a train for Kansas. After questioning the defendants together and separately, the county attorney and the sheriff both stated to them that they believed that they were guilty and that it would be better for them to confess and “come clean,” and that they could use their evidence in prosecuting the Smith woman whom they believed to have been the instigator of the crime. One of the defendants then made a confession, to the effect that the Smith woman had suggested that she should go to this dance and procure some one who appeared to have money to take her from Texhoma to Guymon after the dance, and that after making such arrangements she would communicate with the defendants and they could rob her victim on the way to Guymon; that the Smith woman boarded the train in the usual manner, and they rode the blind baggage from Guymon to Texhoma; that after the Smith woman made the arrangement with Turner she told them to proceed out along the Atlantic and Pacific Highway and that she and Turner would drive along a little later; that pursuant to this arrangement they did proceed along the highway toward Guymon until the Smith woman and Turner appeared, when they robbed Turner at the point of a pistol furnished them by the Smith woman. After they had recited these details the county attorney and the sheriff wanted to know what had become of the pistol and the billfold containing the money and the check. The defendants told the officers where these articles were, and at the suggestion of the officers went out and procured them and brought them back to the county attorney’s office. The articles were produced in evidence at the trial and identified by Turner.

The defendants claim that the confession made was not voluntary, made by them while they were in custody of the officers, and that the officers by their statements led them to believe that they would be used as witnesses in the prosecution of the Smith woman, and that the confession or statements made by them would not be used in evidence against these defendants. The prosecuting attorney and the sheriff both denied that any inducements were held out or promises of immunity made to the defendants to procure this confession.

The defendants objected to the introduction in evidence of the confession or statements made by them to the county attorney and other officers on the ground that whatever statements were made were induced by promises of immunity. The jury were thereupon excused,- and in the absence of the jury the county attorney and the officers were interrogated concerning the confessions, to ascertain whether or not they should be admitted as competent testimony. The examination of the county attorney at this time disclosed the following:

“I told them that if they would testify against Frances Smith in the case in the district court the state would continue their case over that term of court. * * * I don’t believe I ever would tell an individual that would ‘be lighter’ on them. The only thing I tried to convey to them was that it would be a whole lot better for them. I am quite sure I did not use the word ‘lighter.’ That it would be a whole lot better for them to tell the truth; that nobody would be willing to help them when they were convinced they were guilty and then for them to say they were not guilty — I told them that. I told them it would be better for them to tell the truth.”

The county attorney also stated that he presumed he had their confidence.

The court found, as a matter of law, that the confessions made were competent. The officers and the county attorney were then permitted to testify in the presence of the jury concerning the confessions made, and what defendants said concerning the crime. Counsel for defendants, in an effort to cross-examine the county attorney, brought on the following:

“Q. Now, Mr. Adams, when you obtained these statements from these young men what was the conversation you had with them before they made the statements relative to the — to this girl?
“By Mr. Sweet: We object, if the court please.
“By the Court: We have settled that issue.
“By Mr. Dale: I understand; I just wanted to bring out what the statement was, the preliminary statement.
“By the Court: All right, unless it touches that feature ' we have already settled.
“By Mr. Dale: I am objecting to the—
“The Court: You are not objecting, you are trying—
“By Mr. Dale (interrupting): I think we have a right for the jury to have the whole conversation.
“By the Court: Well, he can state the whole conversation that is pertinent to the matter he has just testified about, but not any issues that we have settled. You asked that the jury be excused so that we might settle that and they were excused.
*********
“Q. Now, did you make any statements as to what would be best for the boys—
“By Mr. Sweet (interrupting): We object, if the court please.
‘By the Court: Sustained.
“Q. Were any statements made to these boys, in regard to their evidence in another trial, as to them being witnesses in another trial by the state against Frances Smith?
“By Mr. Sweet: We renew our objection, if the court please.
“By the Court: You had better make a new one.
“By Mr. Sweet: We object to that on the same grounds.
“By the Court: Sustained.
“By Mr. Dale: Exception.”

It is well established in this jurisdiction that extrajudicial confessions, or those which are made by the defendant out of court, whether to an official or a nonoffieial person, in order to be admissible in evidence must be entirely free and voluntary. It was held in the case of Mays v. State, 19 Okla. Cr. 102, 197 Pac. 1064, that confessions induced by a promise of benefit or a threat of harm made to a defendant by a prosecuting attorney or an officer having him in custody will be deemed involuntary and will be inadmissible as evidence, and that where the competency of a confession is challenged on the ground that it was not voluntary, its admissibility as evidence is primarily a question for the court, which should be determined by the court in the absence of the jury, but that the defendant is entitled to' have the evidence in regard to the facts and circumstances under which the confession was made given anew to the jury — not for the purpose of permitting the jury to pass upon its competency, but for the purpose of enabling it to judge what weight and value should be given to it as evidence — ■ and the jury may disregard it if they are not satisfied that the confession was voluntarily made.

Applying these principles of law to the facts here, it will be seen that the court erred .in not permitting the defendant to cross-examine, the county attorney relative to the disputed question of whether or not the confession was voluntary. Where the facts on that issue are conflicting, it is primarily for the court to determine whether it is admissible, but ultimately it is a question for the jury to determine whether it is indeed and in fact voluntary or involuntary.

Further, when the state calls the county attorney as a witness, he is subject to same rules as any other witness, including the right of the defendant to cross-examine. However, in this case this error, grave as it was, was cured by the defendants’ making the county attorney their own witness and interrogating him at length upon the question of whether the confession was voluntary, going into all the details that might have been brought out upon cross-examination when he was the state’s witness.

The courts are not in entire accord as to statements made by persons accused of crime while in custody of officers. The practice of “sweating” suspects, or putting them through the “third degree,” is susceptible of grave abuses. The courts have regarded this practice from three points of view: First, those who consider the practice so reprehensible that any statement so obtained should not be given in evidence; second, those that hold that, while such practice of interrogating witnesses is undesirable and should not be encouraged, yet the answer so obtained cannot be rejected; and, third, those holding that such practice might be so conducted as to be useful and even desirable in the furtherance of justice. The practice in our courts is to avoid either extreme.

The fact that the defendants were under arrest and were not warned that any statement made by them might be used against them would not affect the admissibility of any voluntary statement made by them; neither would the fact that the questions propounded assumed that they were guilty, nor the fact that the officers told them it would be better for them to tell the truth. The policy of this court on this question is fully discussed, supported by many authorities, in the case of Mays v. State, supra; also in the case of Scribner v. State, 9 Okla. Cr. 465, 132 Pac. 933, Ann. Cas. 1915B, 381. See, also, Bouvier’s Law Dictionary, vol. 1, subject ‘ ‘ Confessions. ’ ’

Turner, the man who was robbed, testified that he could not identify the robbers, that he did not see their faces distinetly, but said that one of the defendants resembled one of the robbers in size and general appearance. He also testified in detail as to the manner of the robbery. The wives of the defendants testified that they were both at home that night and that they saw Turner and the Smith woman when they returned home at 3:30 that night, and defendants offered to show by these witnesses that Turner was so intoxicated that he could not have known just what did happen. This testimony was competent and should have been admitted. However, considered along with other evidence later introduced, the confessions of the defendants, and the recovery of the things stolen, the exclusion of this testimony was of littlq consequence. The defendants were undoubtedly guilty; otherwise how could they have produced the loot which they delivered to the county attorney?

Up to the time of this conviction these young men appear to have borne good, reputations for being industrious, well-behaved citizens, and it appears that they may have been influenced to commit this offense by a wicked, designing woman. The punishment assessed is severe, but it is the minimum punishment prescribed by law for the offense of which the defendants were convicted, and we have no authority to mitigate it. That is a matter that may be urged in an application for executive clemency.

Notwithstanding the errors committed, this conviction must be affirmed under the provisions of what is known as our harmless error statute. Section 2822, Comp. St. 1921. The judgment of the trial court is accordingly affirmed.

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    HARRISON HEAD v. STATE.
    No. A-3511.
    Opinion Filed Jan. 15, 1924.
    (221 Pac. 791.)
    (Syllabus.)
    1. Homicide — Error to Reject Evidence Supporting Plea of Defense of Son. In a trial for assault and battery with intent to kill, the theory and evidence of defendant being that he acted in defense of his son, and in self-defense, it was reversible error to reject evidence offered by defendant showing or tending to show that defendant coming upon the scene found the complaining witness and two others attacking his son.
    2. Homicide — Father's Right to Defend Son. Where, upon trial for assault and battery with intent to kill, the evidence showed that defendant intervened in an affray in defense of his son, and upon withdrawing was followed by the complaining witness, and a fight ensued, held, that defendant had the same right to defend his son that the son had to defend himself.
    3. Evidence — Res Gestae — Evidence of Affray in Which Father Interfered in Defense of Son. Where the evidence showed that defendant, arriving upon the scene, found three others attacking his son, held, that evidence of the affray was admissible as res gestae.
    4. Evidence — Admissibility if Relevant when Taken with Other Evidence — Rejection of Material Evidence Prejudicial Error. 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 relevancy appears, and the rejection in a criminal case of material testimony offered by defendant constitutes prejudicial error.
    Appeal from District Court, Hughes County; George C. Crump, Judge.
    Harrison Head was convicted of assault and battery, and he appeals.
    Reversed.
    Anglin & Hall, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, J.

Appellant, Harrison Head, was tried upon an information charging that he—

“did intentionally, wrongfully, and feloniously commit an assault and battery upon the person of E. L. Carson, by means, of a certain knife, the same being then and there a deadly weapon, with the felonious intent of him, the said Harrison Head, to kill the said E. L. Carson.”

The jury returned a verdict finding him guilty of “asr sault and battery as charged in the'information,” but failed to’ agree upon the punishment.

By the judgment of the court he was sentenced to be confined in the county jail for 30 days, and to pay a fine of $100 and the costs.

The facts disclosed by the record are that appellant and his family attended a school entertainment at the Gooch schoolhouse, the evening of the date alleged; he being a member of the school board.

When appellant came out of the school house the Carson brothers were fighting with his son, Claude, and had backed him down over the fender of an automobile. Appellant attempted to separate them and pulled. Sam Carson loose from his son. The complaining witness, E. L. Carson, turned and took hold of appellant’s arm, and appellant struck him.

E. L. (Bob) Carson testified:

“Mr. Head walked up to me and asked to please not have any trouble. When he said that he hit me and knocked me down with his fist, and when I got up stabbed me in the face and hit me again, and I went down on my all fours.”

Eight or nine other witnesses for the state testified that they saw appellant hit E. L. Carson with his fist, but none of them could swear that appellant cut him. Several of these witnesses testified that they saw a man whom they did not know strike Carson, and that this other man struck Carson over appellant’s shoulder.

As a witness in Ms own behalf, Harrison Head testified:

“Bob Carson came walking np to me and took hold of my shoulder; he gave me a good shaking and said, ‘Mr. Head what do you mean?’ I says: ‘Not anything, Bob, I was trying to separate the boys.’ I pulled away from him, and he came at me with his fist. I threw my left arm up to knock the lick off, and I hit him with my fist on the jaw; I did not strike him with a .knife. I had pulled Sam Carson off of my Son, Claude, just before Bob Carson grabbed me.”

Claude Head testified that—

“Sam Carson, Bob Carson, and Nick Sehorn were all fighting me, and some one cut me with a knife; then I pulled my knife and cut Bob Carson on the right side of the face; and I cut Sam Carson.”

Joe Hamilton testified:

“I saw Claude Head strike at Bob Carson with a knife.”

Jesse Jackson testified:

“I did not see any difficulty between Harrison Head and Bob Carson that night until after Mr. Head went up to separate the Carson boys and his son Claude. They were all fighting, and Mr. Head grabbed hold of Sam Carson and said, ‘Here boys, we don’t want anything like this.’ When he did that Bob Carson turned Claude loose and started over to Mr. Head, and struck at him, then dropped back and kinder ‘booed’ and growled at him, and Mr. Head hit him with his fist.”

The grounds for a new trial and assigned as error are that the evidence is insufficient to justify the verdict of the jury; improper remarks by the court during the trial prejudicial to the rights of the defendant; comments by the court in the presence of the jury upon the weight of the evidence on behalf of the state; and error in the rejection of competent, relevant, and material testimony offered by the defendant.

The record shows in his opening statement, before any evidence had been introduced, counsel for defense was interrupted by the court saying:

“Mr. Hall, I expect I can shorten your statement. The court will hold that these two fights were separate and distinct, and it' will be immaterial whether Claude Head was justifiable or not in the infliction of the wounds. We will not go into any justification of that wound, if Claude Head inflicted it. We will just eliminate all of that.
“By Mr. Hall: As to the part of the justification upon the part of the other fight?
“By the Court: Every bit of it, because the only question for the jury to decide, Did Mr. Head strike the lick? If he did was it in self-defense?”

During the cross-examination of the state’s witness Stewart, the record is as follows:

“Q. I just want to make the record, your honor, it is not to antagonize the court. As a matter of fact, it was your attitude there toward Emmitt Jones, just when you went out and got in your car, that caused the fight to begin there that night between the Heads and the Carsons, wasn’t it?
“By Mr. Skinner: We object as incompetent and immaterial.
“By the Court: Sustained.
“By Mr. Anglin: Give us an exception. May I dictate what I think the testimony will show ?
“By the Court: Yes.
“By Mr. Anglin: We expect the answer to be that he had taken a knife away from Emmitt Jones, and that caused Claude Head to intercede, and this got the father of Claude Head into the difficulty.
“By the Court: The objection will be sustained for the reason that the defendant disclaims that he cut R. L. Carson, and that his defense is that some one else cut him, and the only issue for the jury to try is this: At the time the defendant struck R. L. Carson with his fist, was it necessary for him to do so under the law to repel any threatened attack by Carson upon him, and that the defendant, Head, does not plead self-defense, but denies the charge that he cut R. L. Carson. And the court holds that the issues presented to the jury in the opening statement that what Mr. Head done and what Sam Carson did is immaterial and has no bearing in this case, for the reason that the defendant does not make the claim that he was protecting any one but himself when he made the lick with his fist, and disclaims that he did the cutting at all.
“By Mr. Anglin: Give us an exception.
“By the Court: I hold that, so far as this case is concerned that there was two separate and distinct fights — the fight between Claude Head and the others, and the fight between Mr. Harrison Head and Mr. R. L. Carson, and the question for this jury to decide is: Did Mr. Harrison Head strike R. L. Carson with his fist? If he did strike him with his fist was he justifiable under the instructions of the court. Second, that, if Mr. Head struck R. L. Carson with that knife and cut him, he is guilty, because he says he did not do it, Third, there is no defense in that; and the court holds that, if the jury have no reasonable doubts that Harrison Head cut R. L. Carson with a knife, that it would be their duty to convict him for the reason that he says he did not cut R. L. Carson.
“By Mr. Anglin: Give us an exception to the ruling of the court as well as the statement of the court. I hope we understand each other,
“By the Court: Let me ask you this: Did Harrison Head strike R. L. Carson for what he was doing to him?
“By Mr. Anglin: Our contention is that he went to the rescue of his boy, who was being cut by Sam Carson and Bob Carson and Nick Sehorn; that he pulled Sam Carson off of him and he got loose and went back.
“By the Court: No one after him. What did he strike R. L. Carson for? What is your defense? Why did he say he hit him?
“By Mr. Anglin: To protect himself and to protect his boy — keeping them off.
“By the Court: Now the issue is: Did he hit him? If he did hit him, did he have a right to hit him under the law? Now the further question is, Did he cut him?
“By Mr. Anglin: That is right, but we are trying to go into the fight there with Nick Sehorn and Bob Carson and Sam Carson and this defendant’s boy.
“By the Court: For what?
“By Mi\ Anglin: To show that he went into it to protect his boy and had pulled some of them off of his boy.
“By the Court: Did he pull R. L. Carson off?
“By Mr. Anglin: He pulled Sam off first.
“By the Court: The court will instruct the jury that if Mr. Head didn’t do the cutting to turn him loose. If he did cut him, to convict him.
“By Mr. Anglin: On that phase of the case?
“By the Court: Yes, sir; on the assault and battery phase. The court will instruct the jury that if Mr. Head struck Bob Carson with his fist and at the time he struck him he did so in order to keep from receiving any corporal hurt, at the hands of R. L. Carson, the prosecuting witness, he had a right to hit him, but if he did strike him without the right as defined as being self-defense, why he is guilty.
“By Mr. Anglin: Your honor, the testimony on the part of the defense will show this: That he pulled Sam Carson off. ‘
“By the Court: How could that testimony be admitted?
“By Mr. Anglin: and that Bob ran at him and struck him or tried to strike him. Doesn’t that show it grew out of the same transaction, the right to protect his boy and himself?”

The record further shows that defendant offered to prove by witness Claude Head that Sam Carson cut him and that witness then drew his knife and at the time Bob Carson, Sam Carson, and Nick Sehorn were all making an attack upon witness, and the defendant appeared upon the scene.

“By the Court: I would let him answer who cut him, if Mr. Harrison Head was pleading self-defense. I have held all the way through that the altercation between Claude Head and these other boys was not competent in this case, for the reason that the defendant says he did not strike the blow that inflicted the wound upon the body of Bob Carson.
“By Mr. Hall: Our contention,'your honor, is not only self-defense, but defense of this boy. We have been trying to make that clear all the way through this trial.
“By the Court: All I want to know is the truth in this matter. That is all the jury wants to know; we haven’t a bit of feeling in it at all.
“By Mr. Anglin: Save our exception to the remarks of the court.
“By the Court: What wrong did I make there?
“By Mr. Anglin: Your honor, we have the right to make our record.
“By the Court: I think you have when made in good faith, some bearing upon the case.
“By Mr. Anglin: We except.”

It is a well-recognized principle of law that the defendant under the evidence offered and rejected by the court would have the same right to act in defense of his son that he would have to act in his own defense. It is elementary law that the defendant had the same right to defend his son that the son had to defend himself.

Section. 3574, Comp. Stats. 1921, provides:

“Any necessary force may be used to protect from wrongful injury the person or property of one’s self or of a wife, husband, child, parent or other relative, or member of one’s family, or of a ward, servant, master or guest.”

Section 1762, Comp. Stats. 1921, provides:

“To use or to attempt to offer or to use force or violence upon or toward the person of another is not unlawful in the following cases: * * *
“Third. When committed either by the party about to be injured, or by any other person in his aid or defense, in preventing or attempting to prevent an offense against his person. * # * Provided, The force or violence used is not more than sufficient to prevent such offense.”

In Moore v. State, 25 Okla. Cr. 118, 218 Pac. 1102, we said :

“If one enters a conflict to defend a relative and after-wards abandons his plan to defend such relative and himself withdraws in good faith from such conflict and is thereafter pursued, his right to defend himself from the latter attack is complete, although the relative to whose aid he first entered the conflict has not withdrawn therefrom.”

In Moore v. State, 25 Okla. Cr. 151, 219 Pac. 175, we said:

“As a general rule a person has a right to use violence in defense of another only when the imperiled person would have been justified in using it in his own defense. Both must have been free from fault in bringing on the difficulty.”

It follows that the court erred in its rulings excluding the evidence offered on the part of the defendant. It should be said in passing that the evidence rejected was also admissible as a part of the res gestae.

A defendant in a criminal prosecution is entitled to a 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. And, where exceptions are reserved, such rulings require a reversal of conviction.

For the reasons indicated the judgment of the trial court is reversed.

MATSON, P. J., and BESSEY, J., concur.


author: MATSON, P. J.

text:
    In re OPINION OF THE JUDGES. In re RICHARD BIRKES.
    (221 Pac. 1041.)
    No. A-4977.
    Opinion Piled Jan. 15, 1924.
   Opinion of the Judges of the Criminal Court of Appeals in response to a request of the Governor relative to the conviction of Richard Birkes of the crime of murder.

Honorable M. E. Trapp, Governor of the State of Oklahoma — Sir: In response to your official communication of December 26, 1923, addressed to this court, asking for an opinion as provided in section 2786, Compiled Statutes Oklahoma 1921, in the matter of the conviction of Richard Birkes in the district court of Craig county on the 17th day of November, 1923, by judgment of said court sentenced to be put to death by electrocution on the 1st day of February, 1924, within the walls of the state penitentiary at McAlester, Okla., we hereby respectfully submit the following opinion of the Judges:

MATSON, P. J.

It appears from the record before us that Richard Birkes was, by information filed in the district court of Craig county, Okla., on September 15, 1923, charged with the murder of one Frank Pitts, alleged to have been committed in said county on the 9th day of August, 1923, by shooting said Pitts with a pistol.

After arraignment and plea, the trial commenced in said district court on the 5th day of November, 1923, and the defendant appeared in person and by attorney. A jury was impaneled, examined, and sworn according to law. The state, introduced its evidence in chief and rested; thereupon the defendant rested without the introduction of any evidence; thereupon, both sides having closed, the court proceeded and did instruct the jury on the law of the case, but said instructions do not appear in the record submitted by you. After such submission to the jury, the following verdict was returned into open court:

“We, the jury impaneled and sworn to try the above-.entitled cause, do, upon our oaths, find the defendant Richard Birkes guilty as charged in the information and assess his penalty at death.”

Thereafter, to wit, on the 17th day of November, 1923, said court being in session, the defendant Richard Birkes filed therein a motion for a new trial, which said motion was presented, heard, and overruled by the court. The court thereupon advised the defendant of his right to appeal said cause to the Criminal Court'of Appeals of the State of Oklahoma, and thereafter inquired of the defendant if he had any cause or reason why judgment and sentence should not be pronounced and imposed against him, and the defendant replied that he had no reason. Thereupon the court pronounced judgment in accordance with the verdict of the jury and sentenced the defendant to suffer death by electrocution within the walls of the Oklahoma state penitentiary on the 1st day of February, 1924. Whereupon a death warrant was issued by the judge presiding at the trial directing the sheriff of Craig county to convey the said defendant to said penitentiary within 10 days from said date, and directing the warden of the penitentiary to execute said judgment on the date designated.

The record before us is silent as to whether or not the defendant, after the overruling of the motion for a new trial and the rendition of the judgment and sentence of the court, gave notice of appeal to this court, or whether or not any order was made allowing the defendant any extension beyond the 15 days allowed by statute to prepare and serve a case-made. The record presented by you is neither a ease-made, nor a complete transcript of the proceedings in the lower court certified to by the court clerk; it is merely a transcript of that portion of the trial proceedings which may be designated “the trial proper,” beginning with the proceedings had on the day the cause was called for trial and extending up to and including the judgment rendered, together with the warrant for executing the same, excepting the instructions given.

Under the statutes of this state, the defendant has an option to take an appeal to this court by filing herein a duly certified case-made with petition in error attached, or by filing a duly authenticated transcript of the record with the petition in error attached, the latter of which may be done at . any time prior to the expiration of six months from the rendition of the judgment. While the defendant has allowed the statutory time within which to make and serve a case to expire, nevertheless, upon proper showing in case of accident or misfortune, which could not have reasonably been avoided by the defendant, by which he has been prevented from so doing, the trial court could make appropriate orders for making and serving a case-made. In any event, the defendant has until the 17th day of May, 1924, in which to take an appeal by filing herein a duly authenticated transcript of the record below, with petition in error attached.

The right of appeal is a constitutional right, and counsel representing a defendant sentenced to death fails to fulfill his duty as an attorney if he either neglects or refuses to take an appeal from such a judgment. Noel v. State, 17 Okla. Cr. 308, 188 Pac. 688.

After the delivery by the sheriff of the defendant to the warden of the penitentiary, pursuant to a judgment sentencing defendant to death, the trial court has no authority to extend the time of execution, and this court has no jurisdiction and will acquire no jurisdiction to suspend such sentence until the ease has been appealed and the appeal filed in this court. Opinion of the Judges, 18 Okla. Cr. 366, 195 Pac. 149.

For such réasons it is the advisory opinion of this court that the only way to preserve to the defendant his right of appeal for the full period of six months from the date of the rendition of the judgment will be for the Governor of this state to suspend the execution of said judgment until after the expiration of the six-month period, which expires on May 17, 1924. Section 2787, Compiled Statutes 1921.

According to section 2784, Compiled Statutes 1921, it is made mandatory upon the trial judge, when judgment of death is rendered, to appoint a day upon which such judgment is to be executed, which must not be less than 60 days nor more than 90 days from the date of the judgment. Such statutory provision renders it impossible for the trial judge to postpone the date, of execution beyond the period of 6 months allowed by statute for taking appeals in felony cases. An anomaly, therefore, exists in the statutes which would deprive a defendant convicted of a capital crime of the full period of 6 months within which to appeal unless the Governor under authority of section 2787, supra, exercises his right to suspend the judgment by fixing a date of execution later than 6 months from the date of the rendition of judgment.

We have examined the record transmitted by you, and, so far as is disclosed by it, we find the proceedings regular and the formalities of law properly complied with; but as the record is incomplete, what is here said must not be treated as such an opinion as would likely be rendered by this court on the merits of a conviction where the entire proceedings are before us.

In view of the incomplete nature of the record presented, and of the fact that the defendant yet has approximately four months within which to appeal to this court, we respectfully suggest that an appropriate order be made by you suspending the execution of this judgment until after the 17th day of May, 1924, on which date defendant’s right to appeal will expire.

BESSEY and DOYLE, JJ., concur.


author: PER CURIAM.

text:
    C. D. SHAWVER v. STATE.
    No. A-4326.
    Opinion Filed Jan. 19, 1924.
    (221 Pac. 1043.)
    Appeal from District Court, Oklahoma County; George W. Clark, Judge.
    C. D. Shawver was convicted of the larceny of an automobile, and he appeals.
    Appeal dismissed.
    E. C. Patton, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, C. D. Shawver, was convicted in the district court of Oklahoma county of the crime of larceny of an automobile, and sentenced to serve seven years imprisonment in the state penitentiary. The automobile was alleged to be the property of Walter W. Hawkins, and the larceny was alleged to have occurred on the 4th day of March, 1921. Judgment was'rendered on the 19th day of January, 1922, and petition in error and ease-made were filed in this court on May 4, 1922.

The attention of this court has been called to the fact that on the 8th day of January, 1923, this plaintiff in error was issued a parole for this identical offense by J. B. A. Robertson, then Governor of the State of Oklahoma, and accepted the same.

The uniform holding of this court is that when a parole is granted by the Governor and accepted by the plaintiff in error, and the matter is judicially called to the attention of this court, pending the determination of an appeal, the appeal will be ’dismissed.

It is therefore considered and adjudged thát the appeal be and the same is hereby dismissed, and the cause is remanded to the district court of Oklahoma county.


text:
    JUDE WILLIAMS v. STATE.
    No. A-4328.
    Opinion Filed Jan. 19, 1924.
    (221 Pac. 1043.)
    Appeal from County Court; Ottawa County; Q. P. McGhee, Judge.
    Jude Williams was convicted of the unlawful possession of intoxicating liquor, and he appeals.
    Affirmed.
    J. W. Stalcup, for plaintiff in error.

      The Attorney General, for the State.
   PER CURIAM.

This is an appeal from a judgment of conviction rendered in the county court of Ottawa county on the 14th day of January, 1922. The charge was the unlawful possession of whisky. The trial resulted in a verdict of guilty, with punishment assessed by the jury as above stated. Petition in error and ease-made were filed in this court on May 4, 1922. The cause was finally submitted November 6, 1923. No brief has been filed in behalf of plaintiff in error, nor was any appearance made to orally argue the cause on the day the same was submitted. This court has examined the record, including the transcript of the evidence, and finds no prejudicial error therefrom such as should result in reversal of the judgment. While the evidence of possession of liquor by plaintiff in error is to a large extent circumstantial, the plaintiff in error failed to take the witness stand and make any explanation of these incriminating circumstances which tended to prove such unlawful possession. For reasons stated the judgment is affirmed.


author: BESSEY, J.

text:
    W. H. SPELMAN v. STATE.
    No. A-4197.
    Opinion Filed Jan. 19, 1924.
    (221 Pac. 1044.)
    Appeal from County Court, Payne County; Raymond H. Moore, Judge.
    W. H. Spelman was convicted of the illegal possession of intoxicating liquor, and he appeals.
    Affirmed.
    John P. Plickam, Chester H. Lowry, and Brown Moore, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, J.

W. H. Spelman, plaintiff in error, was by information filed in the county court of Payne county September 29, 1921, charged with the unlawful possession of intoxicating liquors at his place of business in Stillwater. At the trial, December 1, 1921, he was found guilty as charged, and his punishment assessed at a fine of $50 and confinement in the county jail for a period of 30 days. From the judgment on this verdict he appeals.

The plaintiff in error in his brief and argument urges but one assignment of error, namely, that the proof is insufficient to support the verdict. ¥e have examined the testimony, and conclude that this assignment is not borne out by the record. The testimony is conflicting, but there is evidence, if believed by the jury, sufficient to support the verdict. The jury, under such circumstances, are the judges of the weight of the testimony and the credibility of the witnesses.

The judgment of the trial court is affirmed.

MATSON, P. J., concurs.

DOYLE, J., dissents.


text:
    J. C. MORROW v. STATE.
    No. A-4305.
    Opinion Filed Jan. 19, 1924.
    (221 Pac. 1118.)
    Appeal from District Court, Custer County; Thos. A. Edwards, Judge.
    J. C. Morrow was convicted of burglary in the second degree, and he appeals.
    Affirmed.
    A. J. Welch, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

This is a companion case to A-4388, A. D. Morrow v. State, 23 Okla. Cr. 98, 212 Pac. 1008, in which the conviction for burglary in the second degree was recently affirmed by this court. In the case here the crime charged, the time and place, are the same as in- ease A-4388. The evidence adduced, the instructions of the court, and the alleged errors are practically the same in the two cases, and it would serve no good purpose to reiterate the findings and conclusions made in the case previously decided. For the reasons therein given, the judgment of the trial court is affirmed.

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


text:
    IVAN BROWER v. STATE.
    No. A-4195.
    Opinion Filed Jan. 19, 1924.
    (221 Pac. 1050.)
    (Syllabus.)
    1. Prosecuting Attorneys — Representative of the Public and Quasi Judicial Officer. A prosecuting attorney in a criminal case represents the public; he is a quasi judicial officer, charged as much with the duty of seeing that no innocent man suffers as seeing that no guilty man escapes. It is his duty to see that nothing but competent evidence is submitted to the jury.
    2. Same — Grave Breach of Duty to Go Outside Record in Seeking Conviction. It is a grave breach of duty for a prosecuting attorney to seek by innuendo or artifice to procure a conviction by injecting into the case facts or conclusions not based upon the evidence adduced at the trial.
    3. Appeal and Error — Consideration of Extraneous Facts Harmful Where Case Doubtful on Legitimate Evidence. In a case of some doubt on the facts legitimately in evidence, the consideration of extraneous facts not in the record cannot be considered harmless.
    Appeal from District Court, Beckham County; T. P. Clay, Judge.
    Ivan Brower was convicted of larceny of live stock, and he appeals.
    Reversed and remanded.

      Tracy & Minton, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Ivan Brower, plaintiff in error, here designated the defendant, was by a verdict of a jury rendered August 3, 1921, found guilty of the larceny of a domestic animal, as charged in the information, without fixing the punishment. Subsequently the court, in rendering judgment upon the verdict, assessed the punishment at the minimum provided by law, confinement in the penitentiary for a term of five years. Just before Christmas preceding the trial the defendant had lost a horse and had borrowed another horse to search for the one he had lost. On the night before Christmas he claims he tied this borrowed horse to a hitching rack in Sayre. The prosecuting witness, Joe Montgomery, on this night rode his father’s mare into Sayre and tied it to the same hitching rack, then proceeded to a picture show. During the progress of the show he was informed that his mare was gone. A search was made about town, without results. Early the next morning, in company with his brothers, he renewed the search, and the mare was tracked to the home of the defendant, about 9 miles distant, where the searchers arrived at about 11 o’clock Christmas morning. As they approached the barn on defendant’s premises they discovered the mare with a saddle on, and the defendant standing by the animal’s side, doing something to the saddle. As the prosecuting witness and his brothers drew near in their ear, according to the testimony of the prosecuting witness, the following took place:

“He [the defendant] halloed out and asked if that was our horse. I told him it belonged to my father, and I walked out to where he was, and asked him what he drove it out for; and he said he didn’t drive it out. He said he got on it through a mistake at Doxey. I guess I said a few angry words.”

Sam Montgomery, a brother, testified:

“Joe asked him how come him to ride the mare out. He said he didn’t ride her out. Joe told him he needn’t tell that, as he tracked her out, and then Ivan said he got her through a mistake at Doxey; he guessed he got on the wrong horse. I told my brother to get on the mare, and Ivan got in our car and rode back part of the way with us, looking for the horse that he said had gotten away from him. As he got out of the car at Doxey he said he was sorry we had to come after the mare; that it was just through a drunken mistake; that the Bohannon boys must have got him on the wrong horse at Sayre.”

Defendant admitted taking the mare, and claimed it was a mistake; that he thought it was the horse he had borrowed to hunt for his own horse that had strayed away, and that he did not discover his mistake until the next morning.

The assignments of error seriously worthy of consideration are three:

First. That the evidence is insufficient to support the verdict.

Second. Misconduct of the county attorney and the court.

Third. That the court improperly permitted the. state to show that the accused had been convicted of other crimes and misdemeanors.

We will first notice the last-named assignment. The record shows that proof of other offenses was admitted only for the purpose of reflecting upon the credibility of the accused as a witness, and the jury were advised that they should consider it only for that purpose, both when such evidence was introduced and in the court’s instructions to the jury. In this there was no error. This practice is authorized by statute in this state. Section 585, Comp. St. 1921 (Code of Civil Procedure) is as follows:

“No person shall be disqualified as a witness in any civil aetion or proceeding, by reason of his interest in the event of the same, as a party or otherwise, or by reason of his conviction of a crime; but such interest or conviction may be shown for the purpose of affecting his credibility.”

Section 2699, Id., provides:

“Except as otherwise provided in this and the following chapter, the rules of evidence in civil cases are applicable also in- criminal cases, ’ ’ etc.

A misdemeanor is a crime within the meaning of our statutes. Section 1502, Comp. St. 1921:

“Crimes are divided into: First. Felonies. Second. Misdemeanors.”

A strict adherence to the former rule of this court, that only such crimes as involve moral turpitude may be shown as affecting the credibility of a witness, has been since modified, because the original rule has been enlarged by statute. Hendricks v. State, 23 Okla. Cr. 18, 212 Pac. 330; Queen v. State, 23 Okla. Cr. 146, 212 Pac. 1021; Whitlow v. State, 24 Okla. Cr. 307, 218 Pac. 162.

From the part of the testimony herein recited, and from other portions of the record, it appears that this was a close ease on the facts; that the jury might have consistently found from the evidence that the defendant took the animal through mistake, without any criminal intent. This makes the assignment of error concerning the alleged misconduct of the court and county attorney all the more important. In the cross-examination of the accused the following appears:

“Q. What did. you mean by telling me in the office later that you didn’t ride that mare out there? A. I didn’t tell you that, I don’t think, Mr. Speed.
“Q. Yes; you did.
“The Court: Don’t argue with the witness.
“Q. Do you mean to tell me that you didn’t say that? A. I don’t see no cause to tell you that. I wasn’t at no trial or no preliminary. Why should I tell you that? I was just making a bond. I didn’t have no cause to tell you anything.
“Q. You remember that you told me something? A. I don’t remember telling you nothing like that.
“Q. Do you remember saying something about going down into your pasture on your mount, and this mare with the saddle on was down there with your mules ? A. I said I went down in my pasture -on my mount.
“Q. On another horse? A. No, sir; I didn’t tell you that.
“Q. And your two mules were down there, and this mare was with them? A. Didn’t I tell you Bell had got the mules out of the field?
“Q. No, sir. You don’t remember saying that? A. I did not say that to you.
“Q. You didn’t? A. No, sir.
“Q. You don’t remember anything of that statement you made about trying to excuse yourself about taking the mare? A. I never made no statement to you to excuse myself.”

In the county attorney’s argument to the jury this appears :

“Take this testimony about getting the horse at Doxey and about Sayre; about where he got this animal, and who put him on'the wrong animal — these Bohannon boys. He did-n’t bring them up here to show that was true. Gentlemen, I don’t believe a word of it, and I have my reasons, and I have better reasons, probably, than you have (interrupted)—
“Mr. Minton: We object to the remarks of the County attorney in which he informs the jury he has better reasons to believe he is guilty than they have.
‘ ‘ The Court: Overruled; he may have better reasons, for all I know.
“Mr. Minton: The defendant excepts and objects to the remarks of the court and asks that the jury be instructed to disregard it.
“The Court: Overruled. Oo ahead.
“Mr. Mint on: Exception.”

It is well established in this and other courts that a prosecuting attorney in a criminal case represents the public; that he is a quasi judicial officer, charged as much with the -duty of seeing that no innocent man suffers as of seeing that no guilty man escapes. It is his duty to see that nothing but competent evidence is submitted to the jury, and it is a grave breach of duty to seek by innuendo or artifice to procure a conviction by injecting into the ease any material facts or conclusions not based upon the evidence .adduced at the trial. Ewing v. State, 17 Okla. Cr. 690, 190 Pac. 274; Childs v. State, 13 Okla. Cr. 461, 165 Pac. 622; Gamblin v. State, 12 Okla. Cr. 381, 157 Pac. 367; Watson v. State, 7 Okla. Cr. 590, 124 Pac. 1101; Mulkey v. State, 5 Okla. Cr. 76, 113 Pac. 532; 22 R. C. L. 104.

The county attorney, in his cross-examination of the defendant, led the jury to believe that the defendant had made conflicting statements to him after his arrest, although there was no evidence introduced supporting that fact. In his. argument to the jury he again forcibly emphasized that statement by saying, “I have my reasons and I have better reasons probably than you have” (for believing the defendant guilty). The court, inadvertently perhaps, further emphasized this incompetent deduction by stating: “Overruled; he may have- better reasons, for all I know.” Being a case of some doubt on the facts, this damaging insinuation may have turned the scale against the defendant, and was manifestly prejudicial to the defendant, particularly when considered in connection with the fact that the evidence concerning other crimes showed that the defendant may have been a “bad actor” and an undesirable citizen. All of this may have caused the jury to render their verdict against the defendant on general principles.

In view of these conclusions, it will be unnecessary to further analyze the question of the sufficiency of the evidence.

The judgment of the trial court is reversed, and the cause remanded.

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


text:
    GUS KEY v. STATE.
    No. A-4353.
    Opinion Filed Jan. 19, 1924.
    (221 Pac. 1048.)
    (Syllabus.)
    Intoxicating Liquors — Evidence Insufficient to Sustain Conviction for Unlawful Possession. Evidence, on a prosecution for having possession of one pint of whisky with unlawful intent, held insufficient to sustain a conviction.
    Appeal from County Court, Carter County; M. F. Winfrey, Judge.
    Gus Key was convicted of a violation of the prohibitory liquor law, and he appeals.
    Reversed.
    Charles A. Coaldey and Thos. Norman, for plaintiff in error.

      George F. Short, Atty. Gen., and J. Roy Orr and N. W. Gore, Asst. Attys. Gen., for the State.
   DOYLE, J.

Appellant, Gus Key, was tried upon an information charging that he did have in his possession one pint of whisky with the unlawful intent to sell the same. The jury returned a verdict finding him guilty and fixing his punishment at a fine of $100 and confinement in the county jail for 60 days. He has appealed from the judgment rendered upon such conviction.

The first contention is that the evidence is insufficient to sustain the verdict.

W. R. Highnight, chief of police, testifies:

“I had Mr. Simms go upstairs in the Moose Hall; Mr. Hathcock to go across the street; and I told Mr. Fraley to call Mr. Key; I witnessed the call, and answers the best I could; Mr. Fraley called, he said, ‘Is this six,’ so Fraley just told him that this was ‘six at the Moose Hall.’ In a few minutes Mr. Sims came up with the whisky. Mr. Sims is dead. I did not see Mr. Key at any time between the phone call until he came and made bond.”

Creed Fraley testifies:

“I did. the calling. Called number six and talked to somebody. I did not talk to Mr. Key; I think it was Carry Smithers. The Moose Lodge is a couple of doors down from the Diamond drug store; I was in _ the police station; Mr. Sims came first; in a few minutes Mr. Key came, and put up bond.”

Charley Hathcock testifies:

“We had it fixed to watch him; Mr. Sims was to go upstairs; Creed Fraley to call him. I was standing across the street. Key came out of the drug store and went upstairs; I stayed where I was. In four or five minutes-both came down; Mr. Sims went to the police station. Mr. Key went to get Ms coat; I did not see Mm with anything. To the best of my knowledge, a four-ounce bottle was brought to the police station. Mr. Simms is now dead. I heard Mr. Key’s statement in the police court. I don’t remember his testimony; I believe he said Sims poked his gun in his ribs, and told him to stick them up, and pulled a bottle out of his bosom. He said he did not know what it was; he made some remark that Mr. Sims put this whisky on him; that he did not have the whisky. He said that he was not iguilty.”

On cross-examination:

“He made some kind of a statement around there in the city court. All I know is what Sims told me; that’s all.”

The state rested, and defendant demurred to the testimony on the ground that the same is insufficient to prove the commission of any offense, and asked the court to instruct the jury to return a verdict of acquittal, which the court refused to do. Exception reserved.

As a witness in his own behalf, defendant testified: •

“I did not testify or make any statement about this transaction in the police court or the federal court. A phone call came; some one answered. I started to the Moose Hall in my shirtsleeves. I was about half way up the stairs when Officer C. J. Simms said, ‘Stick ’em up.’ I said, ‘What do you want?’ He reached in his pocket and pulled out this bottle; I said, ‘Sims, this is the dirtiest deal you ever done in your life.’ I went around to the station about 15 minutes afterwards. They had me charged with being drunk and disturbing the peace; I did not 'carry any whisky or anything of an intoxicating nature when I left the drug store; I did not see anybody except Sims. I deliver soda fountain drinks to any place that orders. I did not make a statement anywhere that Sims took this off of my person. He did not get it off me.”

It is insisted that “there is absolutely no proof of the corpus delicti, which in this case would be the actual possession by defendant of whisky; that neither of the three witnesses testified that they saw any whisky, much less any whisky in defendant’s possession, or that Sims took any whisky off of Key.”

To warrant or sustain a conviction there must be evidence sufficient to prove that the offense was committed. This court has held that in a criminal ease a conviction cannot be had on the extrajudicial confessions of the defendant, without evidence aliunde of the corpus delicti, but direct and positive proof of the corpus delicti is not indispensable; like any other fact the subject of judicial investigation, it may be proved by circumstantial evidence. Shires v. State, 2 Okla. Cr. 89, 99 Pac. 1100; Choate v. State, 12 Okla. Cr. 560, 160 Pac. 34, L. R. A. 1917A, 1287.

It is made the duty of the trial court, where it deems the evidence insufficient tq warrant a conviction, to advise the jury to acquit. Section 2713, Comp. Stats. 1921.

Under this section the defendant may present to the court his right to an acquittal as a matter of law for its ruling and decision, whether the evidence is of such a character or quality as to warrant a conviction. If this was not the rule, the jury would in all cases be the sole judge of the question.

Carefully considering the state’s testimony in this case, we think the court erred in overruling the demurrer to the evidence, and in refusing to advise the jury to return a verdict of acquittal. Because of the insufficiency of the evidence, the judgment is reversed.

MATSON, P. J., and BESSEY, J., concur.


text:
    PRINCE CASTLEBERRY v. STATE.
    No. A-4130.
    Opinion Filed Jan. 19, 1924.
    (221 Pac. 1044.)
    1. Assault and Battery — Assault with Dangerous Weapon Included Within Assault with Deadly Weapon. The offense defined by section 1764, Comp. St. 1921, an assault with a dangerous weapon, is a lesser degree of assault and included in the offense defined by section 1756, Id.
    2. Same — Undescribed Pocketknife. not Deadly or Dangerous Weapon per Se — Question for Jury. An undescribed pocketknife is not a deadly weapon, or a sharp or dangerous weapon, per se. In this case it was a question for the jury, and there was proof sufficient to warrant the jury to find the knife was dangerous.
    Appeal from District Court, Pittsburg County; E. P. Lester, Judge.
    Prince Castleberry was convicted of assault with a dangerous weapon, and he appeals.
    Modified and affirmed.
    Guy L. Andrews, for plaintiff in error.
    The Attorney General and John Barry, Asst. Atty. Gen., for the State.
   BESSEY, J.

Prince Castleberry, defendant below, was by information filed April 1, 1921, charged jointly with Wesley Payne with an assault upon the person of Minnie Hoyle with a knife or dagger, with the intent to kill Minnie Hoyle. At the trial, May 19, 1921, defendant Castleberry was by a verdict of the jury found guilty of “an assault with a dangerous weapon as charged in the information,” and his punishment was assessed at imprisonment in the penitentiary for a term of three years. From the judgment on this verdict he appeals.

The charging part of the information is as follows:

“Then and there with a certain knife or dagger which said knife or dagger the said Prince Castleberry and the said Wesley Payne in their hands then and there had and held, in and upon one Minnie Hoyle unlawfully and feloniously make an assault, and did then and there with- the knife aforesaid attempt to kill the said Minnie Hoyle, with the unlawful intent then and there on the part of him, the said Prince Castleberry, and on the part of him, the said Wesley Payne, to kill the said Minnie Hoyle, contrary to the form of the statutes in such cases made and provided and against the peace and .dignity of the state.”

From the opening statement of counsel, the examination of the witnesses, and the instructions of the court, we assume that this prosecution was predicated upon the latter part of section 1756, Comp. St. 1921, which reads as follows:

“Any person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of firearm, airgun or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death or in resisting the execution of any legal process, is punishable • by imprisonment in the penitentiary not exceeding ten years. ’ ’

The information based upon this section of the statutes is defective, in that there was no allegation setting out that the knife or weapon was a deadly weapon and because it does not state that a battery was committed. However, no objection was made to the sufficiency of the information by demurrer.

An assault and battery by means of a deadly weapon, in a manner likely Jto produce' death, includes the lesser offense of felonious assault with a dangerous weapon, as defined by section 1764, Comp. St. 1921, which is as follows:

“Any person who, with intent to do bodily harm, and without justifiable or exeusasble cause commits any assault upon the person of. another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to sboot at another, with any kind of firearm or airgnn, or other means whatever, with.intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding one year.”

The court, after instructing the jury upon the law of assault with a deadly weapon, in a manner likely to produce death (section 1765, supra), then instructed them upon the lesser degree of the crime charged, and included in the greater, known as assault with a dangerous weapon, as defined in section 1764, supra. This instruction was as follows:

“You are instructed that there is contained in the information a lesser degree of crime charged, known as assault with a dangerous weapon. The statute of the state of Oklahoma, so far as applies to the law of this case, is as follows: 'Any person who, with intent to do bodily harm and without justifiable and excusable cause, commits any assault upon the person of another with any sharp or dangerous weapon is guilty of a felony known as assault with a dangerous weapon.’ ”

The procedure so followed by the court was in accordance with the holding of this court in the case of Clemons v. State, 8 Okla. Cr. 452, 128 Pac. 739. The statute first above quoted includes the lesser degree of assault defined by the latter and also simple assault and battery, and the latter statute also includes simple assault.

In order to determine which of the offenses was supported by the evidence, it will be necessary to analyze the major part of the evidence, as it appears in the record:

Minnie Hoyle was in charge of the local telephone exchange at the Busby Hotel at McAlester, where she was employed until 10:30 p. m. every alternate night. On the night of this assault she left the hotel at that hour to walk to her home. On her way home she went into a cafe for something to eat, and after coming out of the cafe she proceeded a short distance towards home, when some one behind her shouted at her. Thinking it was her brother, who sometimes came to meet her, she stopped and was approached by the two defendants. Defendant Castleberry, according to her testimony, seized her roughly by the arm and in an abusive manner asked her where she was going. Continuing her statement as she gave it, we quote:

“I told him what my name was, and that I was going home, and I told him to turn me loose because he didn’t know me, and he just kept on cursing. Then a closed car drove up near the curbing, and the Payne boy went to the car and was gone a few seconds and came back, and when he came back I had jerked loose from this Castleberry boy and started to run back to the Doss House, and when I started to run he started after me, and we both fell right in the middle of the street. We both got up about the same time, and he caught me by the hair and took me back to the corner where I met them. * * * He held on to my arm and got his knife out and says: ‘See this knife? I’ll cut your damn head off if you holler or try to get away.’ Wesley Payne was laughing all the time at what the other one was saying, and when the Castleberry boy took his knife out and said he would cut my head off if I hollered or tried to get away, he put his hand on my arm and said: ‘Don’t try to get away; he will cut you.’ And the street ear conductor came down there to his car, and I hollered at him to make them turn me loose, and he came to me, and they turned me loose. The Castleberry boy started to fight at the conductor. # * * I met two policemen, and I told them that I wished they would arrest those two boys or something, and the policemen then went on up there to where the boys were. Mr. McCully, the policeman, called me back. He asked me if I wanted them arrested. I told him what they did, or tried to, and then I began crying, so I went on; and they just arrested the Castleberry boy and left the other one standing there.”

Mrs. Hoyle testified further that the accused said to her, “See this lmife,” and that she glanced at his hand and saw the handle only; did not see the blade or whether the knife was open; that she did not look particularly to see if she could see the blade, as she was so frightened she just took him at his word. Witness told the prosecuting attorney that she thought the boys were drunk from the way they acted. She made no complaint to the officers that she had been attacked with a knife. Her statement to them was, pointing to the accused, “That boy just talked awful to me, and I want him arrested.”

Besides the officers and the street car conductor, there were several other eyewitnesses to the affair. None of them saw a knife, and none was found when the accused was searched.

At the close of the testimony for the state, as above outlined, the defendant interposed the following:

“At this time comes the defendant Prince Castleberry and demurs to the evidence offered in behalf of the state, for the reason that there is not sufficient evidence to justify a conviction either for assault with intent to kill or any kindred offense, and for the further reason that the issues of assault with intent to kill or of the allied offenses cannot be submitted under the information in this case.
“The Court: Demurrer overruled.
“Mr. Andrews: Exception.
“Comes now the defendant and moves the court to withdraw from the consideration of the jury the matters contained in the information — all matters contained in the information except the matter of simple assault.
“The Court: Motion denied.
“Mr. Andrews: Exception.”

To warrant a conviction based upon either of the statutes hereinbefore quoted, the burden of proof was on state to show that the instrument used or about to be used by the assailants was either a deadly weapon or a sharp and dangerous weapon. An' undescribed poeketknife is not a deadly weapon or a dangerous weapon per se. One witness alone saw the handle of a poeketknife which she could not describe nor tell whether it was open or closed. The several other eyewitnesses for the state saw no knife or other weapon, and none was found on the person of the accused when he was searched. Notwithstanding that fact, there being some evidence that there was a sharp and dangerous weapon, that question was for the jury. The assault occurred on the public street, on a dark and rainy night; the assailant, according to the prosecuting witness, exhibited a knife and threatened to cut her throat. Under those circumstances, the one assaulted had a right to assume, and the jury had a right to believe, that there was a sharp and dangerous weapon in the hands of the assailant. We hold, therefore, that there is evidence to support the verdict.

We think, however, that the facts disclosed show that there was no intent to kill, and slight intent to do great bodily harm. The penalty prescribed by section 1764 fixes the punishment at imprisonment in the penitentiary not exceeding five years or imprisonment in the county jail not exceeding one year, making no provision for a fine in any amount. Section 2306, Comp. St. 1921, provides that upon a conviction for any crime punishable by imprisonment in any jail or prison, where no fine is prescribed, the court may impose a fine upon the offender not exceeding $200, in addition to the term of imprisonment prescribed.

Considering all the aspects of this case, we have concluded that the judgment of tjie court below should be modified to imprisonment in the county jail for a period of 60 days and a fine of $200, and the judgment as so modified is affirmed.

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


text:
    M. J. (Dick) NEWTON v. STATE.
    No.A-4393.
    Opinion Filed Jan. 19, 1924.
    (221 Pac. 1046.)
    (Syllabus.)
    Evidence — Evidence of Collateral Offenses — Logical .Connection with Offense Charged. Evidence of an offense other than the one charged is admissible only when it tends to prove the offense charged. To be competent and admissible, it must have some logical connection with the offense charged.
    Appeal from County Court, Jackson County; J. M. Williams, Judge.
    M. J. (Dick) Newton was convicted of a violation of the prohibitory liquor law, and he appeals.
    Keversed.
    S. B. Garrett, for plaintiff in error.
    George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was tried upon an information charging that on or about the 22d day of July, 1921, he did “unlawfully have in his possession and under his control intoxicating liquor, to wit, about one gallon of whisky, with the willful and unlawful intent” to sell the same.' The jury returned a verdict finding him guilty and leaving the punishment to the court. By the judgment of the court he was sentenced to be confined in the county jail for 60 days and to pay a fine of $250.

The evidence shows that defendant lived on a farm owned by his brother, about 15 miles from Altus; that on the date alleged officers went to this farm with a search warrant; defendant having been arrested' the day before on a charge of intoxication was in the county jail at Altus. A threshing outfit was on the premises threshing wheat, ten or twenty hands, some in the yard and some about the thresher.

John K. Ford, deputy sheriff, testified that he found a tin bucket containing about a gallon of corn whisky concealed among some sacks of wool in the barn, and there was about a half barrel of what he judged to be mash in a shed near the hog lot; that he found a tin boiler in the residence and a keg out in the yard, and that the boiler appeared to have dpugh on it, and he also found a hollow wire about two feet long, and that similar copper wires are found in automobiles; that old man Dick Newton was supposed to be in charge of the place.

Against counsel for defendant’s objections the witness Ford was permitted to testify that he had visited defendant’s place about two months before and found a still, and later again searched the place and found nothing.

Eaveret McKinley was permitted to testify over the objections of defendant that as city marshal of Altus, he arrested the defendant on the 22d day of July; that defendant was drunk, sitting in a buggy, and he found a bottle of whisky in the buggy. Said bottle and contents were introduced in evidence against the objection of defendant.

We think this testimony was clearly inadmissible, because it had reference to separate and distinct offenses, clearly disconnected with the offense charged in the information on trial.

“Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish a common scheme or plan, embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, or to connect the defendant with the commission of the crime charged.” Koontz v. State, 10 Okla. Cr. 553, 139 Pac. 842, Ann. Cas. 1916A, 689.

Bishop says that:

“To permit such evidence would be to put a man’s whole life in issue on a charge of a single wrongful act and crush him by irrelevant matter which he could not be prepared to meet.” 1 Bish. New Crim. Proc. par. 1124.

In our opinion the evidence objected to does not fall within any exception to the general rule.

For the errors indicated the judgment is reversed.

MATSON, P. J., and BESSEY, J., concur.


text:
    A. D. MORROW v. STATE.
    No. A-4306.
    Opinion Filed Jan. 21, 1924.
    (221 Pac. 1047.)
    (Syllabus.)
    1. Burglary — Possession of Goods from Place Burglarized as Circumstance Showing Guilt. Where an accused person is found in possession of property taken from a place recently burglarized, that fact may be considered by the jury along with all the other circumstances, as tending to show that the one in possession committed the burglary.

      2. Same-Jury as Judges of Explanation of Accused. The explanation of such possession by the accused may be, and often is, more or less reasonable, but the jury are the judges of the weight to be given such explanation, giving it such credence as the facts may warrant, in the same manner as all other parts of the testimony are considered.
    Appeal from District Court, Custer County; Thomas A. Edwards, Judge.

      A. D. Morrow was convicted of burglary in the second degree, and he appeals.
    Affirmed.
    A. J. Welch, for plaintiff in error.
    The Attorney General and John Barry, Asst, Atty. Gen., for the State.
   BESSEY, J.

This case illustrates the perils of man’s living alone, beyond the tender care and refining influences of women. The defendant and his brother were living on a farm, where they worked in the fields, prepared their own meals, and did such other things about the house as they were able to do. A neighbor, Pickens by name, a widower, kept bachelor’s hall alone on a farm near by. Pickens went away on a visit, and before leaving securely locked his belongings in his house. While he was away the house was burglarized and robbed of some canned peaches and a bucket of lard. Under authority of a search warrant the house occupied by the defendant and his brother was searched, and the containers in which these articles of food had been were found and identified.

The defendant and his brother say that they had been furnished with canned fruit and other provisions by their father, in glass jars and in tin buckets similar to those claimed by Pickens, and urged that the lard bucket was a common kind of bucket that could not be certainly identified, and that the fruit jars said to have contained the peaches were likewise not susceptible of identification. Pickens, however, showed that his glass jars were marked with private marks which were still upon them when found, and that the lard bucket had certain solder marks upon it where he had previously repaired it.

Where an accused person is found in possession of property taken from a place recently burglarized, that fact may be considered by the jury along with all the other circumstances as tending to show that the one in possession committed the burglary. The explanation of such possession by the accused may be, and often is, more or less reasonable, but the jury are the judges of the weight to be given such explanation, giving it such credence as the facts may warrant, in the same manner as all other parts of the testimony are considered.

We have carefully examined the record, and have discovered no material errors committed at the trial. The instructions of the court covered the issues of law involved, and were fair to the defendant. The sufficiency of the evidence, under the circumstances, as related, was purely a matter for the jury.

The judgment of the trial court is affirmed'.

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