text:
    RAY NEWTON v. STATE.
    No. A-8260.
    Jan. 2, 1932.
    (6 Pac. [2d] 1118.)
    J. E. Falkenberg, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and C. N. Ernest, Co. Atty., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Grant county of burglary in the second degree, and his punishment fixed at five years in the state penitentiary.

Defendant with two others was charged with burglarizing the store building of the Courtney Drug Company in the town of East Lamont. One of the codefend-ants pleaded guilty; the other codefendant was tried by a jury; each was sentenced to a term of three years in the state penitentiary.

The principal contention made is that the court admitted incompetent evidence and that the punishment assessed is excessive. The incompetent evidence referred to is cross-examination of defendant tending to show that he associated or had business dealings with a moonshiner and dealer in whisky in Carter county. Without going into detail in reference to the evidence on this point, we are of the opinion the county attorney was given too wide a latitude in his cross-examination, which tended to prejudice the jury against defendant and may have resulted in the assessing of more excessive punishment than would otherwise have been.

Upon a consideration of the entire record, we believe justice requires that the judgment be modified to imprisonment for a term of three years. As modified, the case is affirmed.


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    H. C. ROBERTS v. STATE.
    No. A-8007.
    Dec. 17, 1931.
    Rehearing: Denied Jan. 9, 1932.
    (12 Pac. [2d] 701.)
    E. E. Ammons, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of McIntosh county of the crime of grand larceny, and his punishment fixed by the court at imprisonment in the state penitentiary for a period of ten months.

Defendant was prosecuted under section 2102, C. O. S. 1921, which provides:

“One who finds lost property under circumstances which gave him knowledge or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person who is not entitled' thereto, without having first made such effort to find the owner and restore the property to him as the circumstances render reasonable and just, is guilty of larceny.”

The evidence of the state was that Other Six, a man more than 80 years of age, had been in the barber shop to get a shave; that he took out his pocketbook containing three flO bills, some change, and a deposit slip for |680 issued to him by the Hitchita bank, and paid the barber, and, as he started out on the street, he put the change in his pocketbook and thought he put the pocketbook in his pocket; that it dropped to the sidewalk; that defendant was walking immediately behind Other Six, and stooped down and picked the pocketbook up, and put it in his coat pocket; that in a few minutes Other Six discovered the loss of the pocketbook and came back looking for it; that Eddie Marshall and Jack Marshall were standing near the place where Other Six dropped the pocketbook, and saw the defendant pick it up and put it in his pocket; that a short time later Other Six told the officers about the loss of the pocketbook, and that about an hour afterward the Marshalls pointed out the defendant as the man who picked it up. Both Marshalls testified that Other Six dropped the pocketbook. Eddie Marshall testified that defendant was the man who picked it up, and Jack Marshall testified to seeing it picked up by a man answering the defendant’s description, but was not so positive in his identification. Defendant was arrested, and, when searched, $25 in bills and some change was found on his person.

Defendant, testifying for himself, admitted that he was in town that day, and that he passed the place where the pocketbook was dropped, about that time, but denied that he picked up any pocketbook on that day, and was corroborated by two men who claimed to have been with him all the time.

Defendant called as a witness John Clubb, who testified that he found, in Checotah, a pocketbook containing $30 in bills, on the day the Other Six pocketbook was lost; that he put this pocketbook in his pocket, and went to Henryetta, where he lived; that he heard about somebody being arrested, and came over to Checotah and from there to Eufaula, and with J. M. Roberts, brother of defendant, delivered the pocketbook to the sheriff, in the presence of the county attorney; that the witness made a sworn statement at that time of when and where and how he found the pocketbook and the persons to whom he showed it and told about it.

Defendant next called Ed Cantrell as a witness, who testified that he had helped make bond for defendant; that three or four days after the bond was made defendant picked him up on the road and took him to Che-cotah; that from Checotah they went to Henryetta; that they stopped on the way to Henryetta and picked up John Clubb’s wife; that they stayed all night at Clubb’s house; that defendant pulled a pocketbook out of his left pocket and witness saw three bills, and he said, “Take that and go”; that this was the same day that Clubb and Monroe Carson took the pocketbook down to the sheriff’s office; that immediately after this transaction he got off of defendant’s bond.

Other Six testified that the pocketbook returned to the sheriff and exhibited to him was not the one he had lost.

The defendant in his brief says:

“For a reversal of the judgment herein defendant earnestly contends that the testimony in this case is wholly insufficient to- warrant a verdict of guilty.”

The evidence of the state, coupled with that of the witness Cantrell as to the frameup and return of the pocketbook by defendant, was sufficient to warrant the jury in finding the defendant guilty. The cause is therefore affirmed.

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


author: DAVENPORT, P. J.

text:
    Ex parte HENRY MOORE.
    No. A-8325.
    Jan. 9, 1932.
    (6 Pac. [2d] 1077.)

      C. B. Beeves, for petitioner.
    W. H. Brown, Municipal Counselor, for Oklahoma City.
   DAVENPORT, P. J.

The petitioner, Henry Moore, pn January 4, 1932, filed in this court a petition, which, omitting the caption and verification, reads as follows:

“Your petitioner, Henry Moore, represents and states to this Honorable Court: That he is illegally restrained of his liberty and is unlawfully imprisoned and restrained in Oklahoma City by the Chief of Police, John Watts, and others working under him; the cause of said restraint, according to the best knowledge and belief of this petitioner, is that he was convicted for a pretended violation of the ordinance of Oklahoma City of the crime of violating the prohibition laws as defined by the Constitution of the state of Oklahoma, a copy of said ordinance of Oklahoma City is hereto attached, marked Exhibit ‘A’ and made a part of this petition; but he alleges (1st) that he is illegally and unlawfully restrained in that the said city ordinance is in violation of the Constitution of the state of Oklahoma, the penalty fixed by said ordinance being less than 30 days imprisonment and fifty dollars fine and costs; (2nd) a violation of the Constitution of the United States (a conviction and judgment without due process of law), and is void and unconstitutional; (3rd) the municipal court is without jurisdiction to render judgment for a violation of said city ordinance, for the reason said city ordinance is void and unconstitutional and violates the Constitution of Oklahoma, and that the said arrest and detention is unlawful and without authority of law.
“Petitioner further alleges that on the - day of December, 1931, the police court of Oklahoma City, Oklahoma, rendered judgment under said Ordinance against this petitioner — that he be fined $19.00 and $1.00 cost. That said judgment is void and the court without jurisdiction to impose any sentence for the reason said ordinance was void and the said court was without jurisdiction to render any judgment under said ordinance.”

The petitioner was convicted on a charge of violating section 54m of chapter 8 of the Oklahoma City General Ordinance of 1928, which is as follows:

“Manufacture and- Sale — -Accessories.—It shall be unlawful and an offense for any person, firm or corporation in the city of Oklahoma City to manufacture, sell, barter, give away or otherwise furnish, or to transport or have in possession for any purpose made unlawful by the laws of the state of Oklahoma, any intoxicating liquor of any kind, character or description, whether spirituous, vinous, malt or compound of any character; or to' keep or maintain or aid or arrest in keeping or maintaining, or to loiter about or be found in any room, building or place where intoxicating liquors of any kind, character or description are manufactured, sold, bartered or given away in violation of law or where persons are permitted to resort for the purpose of drinking liquors”

—and was sentenced to pay a fine of $19 and $1 cost. The only question to be determined in this case is the question, Has the city council of Oklahoma City the authority to enact such an ordinance as the one defendant is charged with having violated? The sole ground on which the petitioner asks for a writ of habeas corpus is that the ordinance prescribes a smaller punishment than the constitutional provision of the state of Oklahoma relating to prohibition; and, for that reason petitioner contends that the ordinance is void, and the municipal court without authority or jurisdiction to try and impose the sentence imposed. It is urged by the petitioner that that part of the Constitution relating to prohibition, Comp. ■St. 1921, page 276, which is as follows:

“Any person, individual or corporate, who shall manufacture, sell, barter, give away, or otherwise furnish any intoxicating liquor of any kind, including, beer, ale, and wine, contrary to the provisions of this section, or who shall, within this state, advertise for sale or solicit the purchase of any such liquors, or who shall ship or in any way convey such liquors from one place within this state to another place therein, except the conveyance of a lawful purchase as herein authorized, shall be punished, on conviction thereof, by fine not less than $50 and by imprisonment not less than 30 days for each offense” —is self-executing, and it is not within the power of Oklahoma City to pass an ordinance fixing a lesser punishment than that provided by the Constitution, supra, and he cites in support of his contention many cases from the different states which he insists sustain his contention that he is unlawfully restrained of his liberty.

The question raised by the petitioner in this case has been presented to this court on many different occasions, and this court has held adversely to the contention of the petitioner. Section 3, art. 18, of the Constitution, makes provisions for towns containing a population of more than 2,000 inhabitants to frame a charter for their own government. Pursuant to this article, it appears from the record that Oklahoma City adopted a charter and is now operating under that charter; therefore the power Oklahoma City has at this time is determined upon the consideration of the power granted under the provisions of the statute and its charter. In the case of Oklahoma City v. Spence, 8 Okla. Cr. 121, 126 Pac. 701, 702, a similar ordinance to the one now called into question was attacked on the same ground as the one now involved in this petition. In discussing the question, this court said:

“Counsel for the defendant in error contend that the city of Oklahoma City under its charter and the statute is not authorized or empowered to pass the ordinance in question, and that if it is so empowered the ordinance is void because the penalty does not conform to the penalty prescribed by the prohibition ordinance of the Constitution wherein the minimum punishment is a fine of $50 and imprisonment for 30 days, and contend that the doctrine in the Simmons Case [4 Okla. Cr. 662, 112 Pac. 951, Rehearing Opinion, 5 Okla. Cr. 399, 115 Pac. 380], supra, does not conclude the question here presented.
“The provision of the charter of Oklahoma City with reference to this question is as follows: ‘And said city shall have power to enact and enforce all ordinances necessary to protect health, life and property and to prevent and summarily abate and remove nuisances and to preserve and enforce good government and order for the security of the city and its inhabitants, to protect the lives, health and property of the city; and to enact and enforce all ordinances upon any subject; provided, that no ordinance shall be enacted inconsistent with the general laws of this state, the state Constitution or this charter.’ * * *
“We have carefully considered the arguments of counsel upon all the phases of this question as it is now presented, and are impelled to the conclusion that the doctrine in the Simmons Case, supra, completely answers the contentions raised here. While the specific question here under consideration was not discussed in that case, the principle is identical and the discussion, reasons given, and authorities there cited are applicable to the question we are now considering. We do not think it is necessary to repeat the citations or renew the discussion, for there is nothing that we can add to what was said in the Simmons Case. We are clearly of opinion that the city of Oklahoma City both by its charter provision and by the statute has the right to pass and enforce the ordinance in question. The city authorities have no concern with the enforcement of the state law. They are not enforcing the state law, and are not enforcing provisions of the Constitution. They áre simply enforcing their by-laws enacted by reason of the grant of power contained in the charter and in the statute, either of which would be sufficient.
“The contention of counsel for defendant in error would probably be tenable if the city authorities were clothed with the power to and were enforcing the laws of the state, but they are not doing that. They are simply enforcing their own by-laws.” Ex parte Simmons, 5 Okla. Cr. 399, 115 Pac. 380; Ex parte Monroe, 13 Okla. Cr. 62, 162 Pac. 233.

Reaffirming the holding of this court in the above cited cases, we are clearly of the opinion that the city of Oklahoma City, both under its charter provisions and the statute, had the right to pass and enforce the ordinance in question. The city is not enforcing the state law, and is not enforcing the provisions of the Constitution. It is merely enforcing its by-laws enacted by reason of the provisions in the charter and the statute, either of which is sufficient. The crime for which the defendant is convicted is what is known in law as a petty offense, and is detrimental to the health, peace, safety, property rights, good morals, and finer sensibility of its citizens.

Without extending this opinion further, we hold that the municipal court of the city of Oklahoma City has jurisdiction of the subject-matter and the petitioner. Therefore his imprisonment is legal.

The writ of habeas corpus is denied, and the prisoner remanded to the chief of police of the city of Oklahoma City, with directions to enforce the judgment of the municipal court of the said city.

EDWARDS and CHAPPELL, JJ., concur.


text:
    FRED SWALLEY v. STATE.
    No. A-8110.
    Sept. 25, 1931.
    Rehearing Denied Oct. 24, 1931.
    (2 Pac. [2d] 281.)
    Prentiss E. Rowe, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

This is a purported appeal from the county court of Pawnee county, from a judgment rendered on the 17th day of November, 1930, convicting the plaintiff in error, hereinafter for convenience referred to as the defendant, with possession of home brew, a substitute or imitation for beer, containing more than one-half of 1 per cent, alcohol measured by volume, sentencing the defendant to serve a term of 15 days in the county jail and to pay a fine of $65.

The petition in error and case-made were not filed in this court until March 16, 1931, 119 days after the rendition of the judgment in the lower court. This being a conviction for a misdemeanor, the statute requires that the case be filed in this court within 60 days, unless a further extension of time is granted by the trial court.

An examination of the record shows that the defendant was sentenced on the 17th day of November, 1930, and was given 30 days to make and serve a case-made; that on the 13th day of December, 1930, defendant was given 10 days’ additional to time heretofore granted within which to make and serve the case-made; on the 26th day of December, 1930, tbe defendant was given an additional 5 days’ time in which to make and serve his case-made — making the total time fixed by the court for the defendant to make and serve the case-made of 45 days.

Section 2808, C. O. S. 1921, provides:

“In misdemeanor cases the appeal must be taken within 60 days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding 60 days. In felony cases the appeal must be taken within six months after the judgment is rendered, and a transcript in both felony and misdemeanor cases must be filed as hereinafter directed.”

In Webb v. State, 23 Okla. Cr. 249, 214 Pac. 744, 745, this court in part said:

“The appeal was not lodged in this court until 149 days after rendition of the judgment. It is apparent, therefore, that this court has never acquired jurisdiction of the appeal, and that the motion of the Attorney General to dismiss the appeal is well taken and must be sustained.” Jones v. State, 50 Okla. Cr. 437, 298 Pac. 1053.

In this case it is apparent that the petition in error with case-made attached was not lodged in this court until 119 days after the rendition of the judgment; therefore, this court is without jurisdiction.

The appeal is dismissed.

EDWARDS and CHAPPELL, JJ., concur.


author: EDWARDS, J.

text:
    MARIE HENSLEY v. STATE.
    No. A-8184.
    Nov. 6, 1931.
    (3 Pac. [2d] 211.)
    C. B. Leedy, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Ellis county of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $200 and to serve 30 days in the county jail.

An affidavit for search warrant was filed to search the residence and premises belonging to defendant, alleging the property to belong to Jim Walton. Upon search, six gallons of whisky were found. Defendant and Jim Walton were jointly charged. Walton was acquitted and defendant convicted, as stated. The search warrant was served on the day it was issued, but was not returned for 47 days. Defendant filed an application for a severance, which was denied. Considerable of the testimony went-to the association of defendant with Walton, and was not particularly relevant to the question of guilt or innocence. Defendant did not testify.

It is argued that the court was not legally in session at the time of the trial. The record discloses that after completing, the business of the court in January, the court announced, “Well, that is all for this time,” and did not fix a time for the again convening. Defendant insists this amounted to an adjournment sine die. During February, the court transacted business by accepting a plea of guilty and imposing sentence in a criminal case. The trial in the instant case was in March.

The regular terms of the county court are fixed by section 3178, Comp. ,Stat. 1921, and are the first Mondays of January, April, July, and October. When a general term of the county court has been once regularly convened on the day fixed by law, it continues until the time fixed by law for the next succeeding general term, unless previously adjourned sine die. Tucker v. State, 10 Okla. Cr. 565, 139 Pac. 998; Ex parte Haley, 23 Okla. Cr. 339, 214 Pac. 1090; The statement by the judge, “That is all for this time,” is no more than an announcement of recess of the court, and is not an adjournment sine die.

Complaint is also made that the failure of the sheriff to make return of the search warrant for 47 days after its service renders the search illegal. The failure of the sheriff to make return of the warrant, as provided by statute (sections 2888, 7009, Comp. Stat. 1921), is the dereliction which is condemned. If it appeared that this failure by the sheriff to observe the statute resulted in any prejudice to the defendant, we should not hesitate to reverse the case. When a legal search warrant is made under a valid warrant, the failure of the officer serving the warrant to make return does not render the search invalid. Rose v. U. S. (C. C. A.) 274 F. 245; Viadock v. State, 30 Okla. Cr. 374, 236 Pac. 56.

Some other questions are presented, but none are of sufficient merit to require special discussion.

Upon an examination of the entire record, we are of the opinion that justice requires the fine assessed be reduced to $50.

As modified, the case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    ARTHUR WALTON v. STATE.
    No. A-8180.
    Nov. 6, 1931.
    (3 Pac. [2d] 212.)

      Grim & Grim, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Ellis county of having the unlawful possession of intoxicating- liquor, and was sentenced to serve BO days in the county jail and to pay a fine of $250.

The principal contention made is that the court erred in instructing the jury on the effect of the presumption arising from prima facie evidence. This instruction is:

“You are instructed that the keeping in excess of one quart of any spirituous, vinous, fermented, or malt liquors, or any imitation thereof or substitute therefor, or any liquor or compounds of any kind or description whatsoever, whether medicated or not, which contains as much as one-half of one per cent, of alcohol, measured by volume, and which is capable of being used as a beverage, shall be prima facie evidence of an intention to convey, sell, barter, or otherwise dispose of such liquors.
“The term ‘prima facie evidence,’ as used in the statute, is such evidence as in the judgment of the law is sufficient to establish the unlawful intent, and, if it be credited by the jury, it is sufficient for that purpose, unless rebutted or its contrary proved.”

This instruction is based on chapter 26, Session Laws 1913 (section 6999, Comp. Stat. 1921). Instructions similar to the one here complained of have been held preju-dicially erroneous in several cases. Wilson v. State, 11 Okla. Cr. 510, 148 Pac. 823; Sellers v. State, 11 Okla. Cr. 588, 149 Pac. 1071; Huff v. State, 12 Okla. Cr. 138, 152 Pac. 464; Beal v. State, 12 Okla. Cr. 157, 152 Pac. 808; Langbam v. State, 25 Okla. Cr. 33, 218 Pac. 897. See, also, Stites v. State, 44 Okla. Cr. 92, 279 Pac. 911.

In instructing under this statute, the court must go further than tell the jury that proof of possession of the prohibited amount is sufficient to establish the unlawful intent unless rebutted or the contrary proven, since this in effect requires the jury to convict unless the defendant shall rebut or prove the lack of the presumed intent. Even though an accused is proven to possess more than the prohibited quantity, it is not obligatory upon the jury to convict, but they must believe from all the evidence beyond a reasonable doubt that the accused is guilty, and the court by some apt language should so* instruct the jury.

The case is reversed.

DAVENPOBT, P. J., and CHAPPELL, J., concur.


text:
    JOHN BRENTS v. STATE.
    No. A-8244.
    Jan. 9, 1932.
    (6 Pac. [2d] 1080.)

      Date Crawford and Yol Crawford, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Pontotoc county of the crime of larceny of a hog, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of two years.

This appeal presents but one question — the sufficiency of the evidence to support the verdict of the jury.

An examination of the record discloses a conflict in the evidence. The evidence of the state was that one Martin had a hog stolen from his premises on the 2d day of December. On the 5th of December this hog was found in the possession of one Townsend. It was undisputed that defendant sold this hog to Townsend; that at the time Townsend bought the hog the original marks in the hog’s ears had been cut out and fresh marks made in both ears. The evidence of defendant was that he purchased a hog from one Posey at about this time, but this evidence was uncertain as to the time of purchase, and the weight and marks in the ears of such hog. On rebuttal the state showed that defendant attempted to have three different witnesses testify that he purchased this hog from one Parnacher.

This conflict in the evidence was for the jury. They had a right to disbelieve defendant’s explanation of how he came into possession of the hog.

The evidence of the state leaves no doubt of the guilt of defendant. The cause is therefore affirmed.

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


text:
    ROBERT ADAMS v. STATE.
    No. A-8241.
    Jan. 9, 1932.
    (6 Pac. [2d] 1080.)
    King & Crawford, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Pontotoc county of the crime of burglary in the nighttime, and his punishment fixed by the court at imprisonment in the state penitentiary for a period of two years.

The evidence of the state was that the smokehouse of-one E. M. Jones was burglarized on the 18th day of December, 1930; that one ham and one middling of meat were stolen from the building burglarized; that defendant sold this meat on the same evening to one Freeman; that later the owner of the property appeared at his place and identified the meat, and that he delivered the property back to the owner; that defendant represented to Freeman that the meat was from a hog defendant had butchered; that after defendant was arrested, he went to Freeman and told him that he was drinking and did not steal the meat, but that he watched while the other fellow did, and then took the meat and sold it to Freeman.

Defendant denied that he committed the burglary; that he had told Freeman that he watched while the job was done, and denied that he sold Freeman any meat.

Defendant argues that this evidence is insufficient to support the verdict of the jury.

The jury saw the witnesses and heard them testify, and found the defendant guilty. The trial judge who heard the case denied an instructed verdict, and overruled the motion for a new trial on the ground that the evidence was insufficient to' support the verdict of the jury.

The verdict thus comes to us after having passed the scrutiny of thirteen men who saw the witnesses and heard them testify, and who are in a better position to judge as to the sufficiency of the evidence.

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

DAVENPOET, P. J., and EDWAEDS, J., concur.


text:
    LEE KRATZ v. STATE.
    No. A-8272.
    Jan. 9, 1932.
    (6 Pac. [2d] 1076.)

      C. B. Leedy, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was by information charged with stealing and carrying away one Hereford steer coming three years old. The jury returned a verdict against the defendant finding him guilty of stealing a domestic animal, and. leaving his punishment to the court. The court sentenced the defendant to imprisonment in the state penitentiary for a period of seven years and to pay all costs of the prosecution; from which judgment the defendant appeals.

The testimony on behalf of the state tends to show the steer alleged to have been stolen belonged to Houx Brothers, and was in charge of Bruce Campbell; Houx Brothers had 179 head of two and three year old steers in two large pastures, each pasture containing from nine to eleven sections of land, and adjoined the Clyde Campbell ranch in Ellis county, Okla. The pasture fences were poor, and some of the Houx cattle were out in different pastures; several head being in the Caldwell pasture and rye field. The last of November and first of December, 1930, the testimony shows, there were 22 head of the Houx cattle missing; they had not searched the large pastures adjoining the pastures where the Houx cattle ranged. When the Houx Brothers went to ship their steers in March, 1931, they were eight short, but later one was found in an adjoining pasture.

The testimony further shows there were some cattle at the Mercer ranch with the Houx brand on them, but no one knew whether they were part of the cattle owned by Houx Brothers or not; it was further shown that it was a daily occurrence to see from six to fourteen head of steers on the Caldwell ranch and in his rye field.

O. N. Metz, who' lived within 200 yards of the feed lots and corral of Caldwell, saw the Houx steers in the pasture often. On December 4, 1930, Metz was in 200 yards of where they claim the animal was butchered, and knew nothing about it. The officers searched the Metz place and examined some hides; and also searched the Caldwell place and found some parts of the head and tail of an animal. When the defendant was released on bond, he brought and turned over to the officers the hide from the steer he butchered on December 4, 1930; the officers examined the hide and claim the hide was off an animal that did not have the Houx brand, in fact, it did not have a brand on either hip; the hide was clear. The testimony of the officers further shows that when the defendant was arrested he told them he had butchered his own steer.

There is no testimony to show Houx Brothers or Campbell had a steer stolen; they claimed at the preliminary trial they were short 22 head of cattle; at the trial in the district court they claim to have found all but eight head, and finally another one was found, reducing the number short to seven. The testimony shows they had not thoroughly searched all of the adjoining pastures to see whether or not the missing steers were there. The Houx cattle were branded “9” on the left hip. The officers claim to have found in the hog lot near where the defendant admitted he butchered the steer a part of the head of the butchered animal; that was all they could find around the place, they did not find any hide; they claim the defendant told them the hide was hanging on the corral fence near where he had butchered the steer. The animal that was butchered was butchered at the Clyde Caldwell place; the defendant being a son-in-law of Caldwell, and was living with Caldwell at the time. The place where the animal was butchered was open where any one could come and go at will. The proof further shows that prior to the date of the alleged larceny a number of men handling cattle had visited the Caldwell place looking for cattle, and on several occasions the Houx cattle had been in the Caldwell pasture and rye field, and they had been driven north to a pasture where the Houx cattle ranged, and sometimes south to another pasture used by Houx.

The defendant contracted to deliver a beef to the merchant on a certain day, and when he brought the meat to town was arrested, and he stated to them he had butchered his own steer. There is no testimony to contradict this statement of the defendant. He had sold the merchant meat about a month prior to this time.

This is, in substance, all the testimony on behalf of the state. At the close of the state’s testimony, the defendant filed the following demurrer:

“The defendant now demurs to the testimony and moves the court to instruct the jury to return a verdict of not guilty for the reason that the evidence taken as a whole and undenied fails to establish facts sufficient to warrant or sustain a conviction under the charge, and moves the court to direct the jury to return a verdict of not guilty. By the Court: I believe that demurrer and motion will be overruled. Mr. Leedy: Note the exception.”

The defendant has assigned several errors. The only one it is deemed necessary to consider is that the court erred in overruling the defendant’s motion for a new trial and overruling his demurrer to the evidence and his motion for a directed verdict.

The defendant’s argument is chiefly directed to the assignment that his demurrer and his motion for a directed verdict should have been sustained on the ground that the evidence is insufficient to sustain the allegations in the information. A careful analysis of the testimony contained in the record discloses only a suspicion or a possibility that the defendant is guilty. It has often been held by this court that, where there is evidence to support the verdict, it would not pass upon its weight or sufficiency in order to determine whether or not the defendant is guilty as charged, but that there must be evidence to support the essential allegations of the offense charged. Where there is no evidence but only a mere suspicion to support the verdict, or where the evidence is of such weak or inconclusive character that a conclusion of guilt may not be logically drawn from it, the judgment should be set aside. Owens v. State, 11 Okla. Cr. 113, 143 Pac. 204; Taylor v. State, 36 Okla. Cr. 419, 255 Pac. 158; Freeman v. State, 52 Okla. Cr. 209, 4 Pac. (2d) 120.

The evidence is insufficient to sustain the verdict and judgment. The cause is reversed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    ALEX WILLIAMS v. STATE.
    No. A-8273.
    Jan. 9, 1932.
    (6 Pac. [2d] 1075.)

      M. M. Alexander, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error was convicted in the district court of Okmulgee county of the crime of rape, and his punishment fixed by the court at imprisonment in the state penitentiary for 15 years.

Judgment and sentence was entered on March 16, 1931. The petition in error with case-made attached was not filed in this court until the 22d day of September, 1931, six days after the expiration of the six months’ period provided by law for appeals to this court.

Where an appeal in a felony case is not filed in this court until more than six months after the date of the judgment and sentence, this court obtains no jurisdiction to hear said attempted appeal.

The petition in error and case-made not having been filed in this court within six months, as required by law, the appeal is dismissed.

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


text:
    A. B. JEAN v. STATE.
    No. A-8259.
    Jan. 9, 1932.
    (6 Pac. [2d] 1075.)

      See, also, 49 Okla. Cr. 409, 295 Pac. 233.
    Williams & Sasseen, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Greer county, on a charge of having the unlawful possession of whisky. The officers obtained a search warrant and searched the residence and curtilage of the defendant, and found a quantity of whisky in fruit jars. The defendant was sentenced to pay a fine of $50 and to be confined 30 days in the county jail.

Without lengthening the record by setting out the testimony, there is one material question which is decisive of this case, that is, whether legal process may be served on Sunday. The record discloses that the affidavit for the search warrant was filed with the county judge on Sunday; the search warrant was issued on Sunday; the warrant served and the search made on Sunday. The defendant moved to quash and suppress the warrant and the evidence obtained thereunder, and objected to the introduction of evidence for this reason; which motion and objection was overruled and exceptions saved.

Section 1827, Comp.-St. 1921, is as follows:

“All service of legal process of any description whatever, upon the first day of the week, is prohibited, except in cases of breach of the peace, or apprehended breach of the peace, or when sued out for the apprehension of a person charged with crime, or except where such service shall be specially authorized by law.”

Section 2876, Comp. ,St. 1921, reads as follows:

“A search warrant is an order in writing, in the name of the state, signed by a magistrate, directed to a peace officer, commanding him to search for personal property and bring it before the magistrate.”

A search warrant is legal process. McAdoo v. State, 36 Okla. Cr. 198, 253 Pac. 307; Sloan v. State, 45 Okla. Cr. 228, 282 Pac. 898; Laub et al. v. State, 49 Okla. Cr. 171, 262 Pac. 891.

Under the facts discovered by the record in this case nothing is shown either at the time of procuring the process on Sunday, or when the same was challenged by motion to quash and suppress, to bring the service of the process within the exceptions of the statute. On the contrary, the record discloses that the officer who made the affidavit and procured the search warrant did so without apprehending, or having any reason to apprehend, a breach of the peace. No* reason is given why the writ could not have been secured on Saturday or the following Monday, or why it was necessary to secure it on Sunday. Nothing being shown to bring the service of the warrant within the statute, and it clearly appearing that the service on Sunday was not within the exceptions, the service was invalid and the defendant’s motion to suppress should have been sustained. Laub et al. v. State, 49 Okla. Cr. 171, 292 Pac. 891.

The case is reversed.

EDWAEDS and CHAPPELL, JJ., concur.


text:
    J. B. PAYNE v. STATE.
    No. A-8239.
    Jan. 9, 1932.
    (6 Pac. [2d] 1073.)
    White & White, for plaintiff in error.
    J. Berry King, Atty. Gen., and ¡Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Okfuskee county of the crime of robbery with firearms, and his punishment fixed by the jury at imprisonment in the state penitentiary for 20 years.

This appeal presents but one question — the sufficiency of the information. The charging part of the information in substance reads: That defendant, together with his codefendants, made an unlawful, wrongful, and felonious assault in and upon A. E. Novotny with a certain dangerous weapon, to wit, a pistol, and did then and there threaten to shoot the said Novotny, then and there putting the said Novotny in fear of immediate injury to his life and person, and did then and there by the use of such force and putting in fear, unlawfully, willfully, wrongfully, and feloniously, and against the will of said Novotny, take, steal, and carry away from the possession of said Novotny certain personal property.

The defendant filed a demurrer to the information which was overruled pro forma by the trial judge. After the jury was impaneled and the state’s witnesses had been sworn, defendant objected to the introduction of any evidence for the reason that the information did not state facts sufficient to charge the defendant with a crime or offense against the state of Oklahoma. In passing on this objection the trial court said:

“The particular points now raised in the case at bar by the objection to the introduction of evidence were never pointed out to the court nor called to the attention of the court in the presentation of the demurrer in this case, or otherwise, until presented at this time in the objection to the introduction of evidence; the demurrer presented to the information heretofore being merely a formal presentation and being* passed upon by the court accordingly. Unless the court is absolutely convinced that the information is bad, it certainly should not be held bad upon an objection to- the introduction of the evidence after a jury has been impaneled and sworn and a witness on behalf of the state is on the stand.
“I think that the proposition urged by the motion; that is, the defects in the information pointed out, raises nice questions and close questions and if they had been raised and pointed out to' the court before the jury was sworn, the court would have suggested to the county attorney an amendment to his information, but I am not convinced to that degree of certainty that the defect pointed out, as applied to the language of this particular information, attains such dignity as to justify the court in sustaining the objection to the introduction of evidence, which would, in effect, hold that the information was fatally defective. I am, therefore, going, to overrule the objection to the introduction of evidence and the same is now overruled.”

It is the duty of counsel in the trial of a case to fairly present to the court all questions raised by demurrer or other pleadings. Where counsel fails to do this, the rule with respect to pleadings in a criminal case will not be as strictly construed, but rather this court will apply the same rule upon the sufficiency of the information as if the question was for the first time raised upon an objection to the introduction of evidence. Where defendant questions the sufficiency of the information for the first time on objection to the introduction of evidence, this court has held that the objection should be overruled, if, by any intendment or presumption, the indictment or information can be sustained. Wilsford v. State, 8 Okla. Cr. 535, 129 Pac. 80; Harrison v. State, 12 Okla. Cr. 398, 157 Pac. 707; Brashears v. State, 38 Okla. Cr. 175, 259 Pac. 665; Chamberlain v. State, 42 Okla. Cr. 410, 276 Pac. 507.

The particular contention defendant makes is that the information is insufficient because it fails to allege that the property was taken from the person and immediate presence of Novotny. To support this contention defendant cites Slover v. Territory, 5 Okla. 506, 49 Pac. 1009. In that case the charge was that defendant took the property from the person or immediate presence of the person robbed. The particular point upon which the information turned was that the defendant could not tell from the information whether he was charged with taking the property from the person, or from the immediate presence. Even if we were inclined to follow the ruling of the court in the ¡Slover Case — 'which we are not' — the case is not in point, because the defect complained of there does not exist in the information in the case at bar.

Defendant also cites Ward v. State, 34 Okla. Cr. 296, 246 Pac. 664. The Ward Case is not in point for the reason that the allegation there was that one person was put in fear and the property taken from another.

Defendant also cites Morris v. State, 48 Okla. Cr. 354, 292 Pac. 79, where this court says:

“The information in the case at bar does not contain the essential allegations that the alleged stolen property was taken from the possession of another, or from his person or immediate presence and against his will, and that such taking was accomplished by means of force or fear.”

That case correctly states the rule of law, but an examination of the information there condemned discloses that it contained none of the allegations required by the statute to constitute the crime of robbery with firearms:

By the use of the language contained in the information in the case at bar, a person of ordinary understanding would know that the pleader intended to charge these defendants with the crime of robbery by taking from the immediate presence of A. R. Novotny the amount of money alleged to have been taken by the terms of the information.

The allegation that defendants made an assault on Novotny with a pistol and threatened to shoot him, coupled with “did then and there by the use of force and putting in fear, and against his will, take, steal and carry away from the possession of A. R. Novotny certain personal property,” is equivalent to saying that such property was taken from the immediate presence of Novotny.

It is not necessary that the information should use the exact language of the statute and allege in specific terms that this money was taken from Novotny’s person, or from his immediate presence, but it is sufficient if similar language having the same meaning is employed. An information is sufficient which states the facts clearly and distinctly, in ordinary and concise language, without repetition, and which would enable a person of common understanding to know what was meant. Section 2555, C. O. S. 1921; Star v. State, 9 Okla. Cr. 210, 131 Pac. 542; Reed v. State, 17 Okla. Cr. 662, 191 Pac. 1041; Bard v. State, 23 Okla. Cr. 309, 214 Pac. 939; Morris v. State, 48 Okla. Cr. 354, 292 Pac. 79.

The information in this case is not a model pleading, It could have been made more definite and certain by the use of the words “person and immediate presence,” but the language employed was sufficient to enable a person of common and ordinary understanding to' know that the parties charged were alleged to have committed the crime of robbery with firearms as defined by the statute. That is all that is required.

For the reasons stated, the cause is affirmed.

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


text:
    HARRY ROSE v. STATE.
    No. A-8115.
    Jan. 9, 1932.
    (6 Pac. [2d] 1072.)

      Mauntel & iSpellman, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of discharging a firearm, to wit, a pistol, on the public street of Shattuck, Okla., and was sentenced to pay a fine of $100, and he appeals.

The testimony on behalf of the state shows that the defendant was on the street of .Shattuck, Okla., in a car, and discharged a pistol two or three times. No- one was injured. The contention is that it struck the house of John Gulley. The defendant offered no testimony.

The defendant has presented and argued two questions. The first proposition the defendant discusses is that the case against him was not called for trial at the next term of court after the case had been filed, but has been continued for more than two consecutive terms at the instance of the state. An examination of the record shows that the case had been on the docket for some time, and that the defendant was on bond; but it fails to show that the defendant was present demanding a trial, and objecting to it being continued.

In Dalton v. State, 45 Okla. Cr. 86, 281 Pac. 985, this court in the syllabus said:

“Under the provisions of section 2913, C. O. S. 1921, providing for the dismissal of a criminal case on application of the accused for unnecessary delay, the accused must affirmatively show that the delay in bringing the case to trial was on the part of the state, through its prosecuting officers; that he demanded a trial and resisted the continuance of the case from term to term. When he has done that, if the state fails to show good cause for the delay, the motion should be sustained.”

The defendant does not bring himself within the statute and ruling of. this court on that question, and his objection to the introduction of the evidence was properly overruled.


text:
    WIGHT JONES v. STATE.
    No. A-8198.
    Oct. 16, 1931.
    Rehearing Denied Jan. 9, 1932.
    (8 Pac. [2d] 687.)

      Shelton & Shelton, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted in the county court of Grady county of the unlawful possession of intoxicating liquor and sentenced to pay a fine of $150, and to be imprisoned in the county jail for 30 days. Prom this judgment the defendant attempted to perfect an appeal.

The judgment was rendered on the 12th day of May, 1931, and the appeal was lodged in this court on June 29, 1931. The record discloses that notice of appeal was served on the county attorney and on the county judge. It does not show service on the court clerk as required by section 2809, Comp. St. 1921. No summons in error was issued and served on the Attorney General, nor does the record disclose the waiver of service of summons by the Attorney General. This court does not acquire jurisdiction of the appeal. Burgess v. State, 18 Okla. Cr. 574, 197 Pac. 173; Lutke v. State, 37 Okla. Cr. 18, 255 Pac. 719.

For the reasons stated, the attempted appeal is dismissed.

EDWARDS and CHAPPELR, JJ., concur.


text:
    HOWARD KELL v. STATE.
    No. A-8137.
    Nov. 28, 1931.
    Rehearing Denied Jan. 15, 1932.
    (6 Pac. [2d] 836.)

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

The plaintiff in error, hereinafter called defendant, was convicted in the district court of McClain county of the crime of manslaughter in the first degree in the killing of Wilbur Hopkins, and his punishment fixed by the jury at imprisonment in the state penitentiary for seven years.

The alleged crime was committed on the 7th day of August, 1930. Judgment was pronounced on the 5th day of November, 1930, and the appeal filed in this court on the 24th day of April, 1931.

The evidence of the state was that the deceased was sitting in his home, in the evening, with his back to a window, reading a paper; that defendant walked up to the window with a shotgun in his hand, saw the deceased sitting in the room, observed to see that no one was in line of the gun fire, and stooping down he fired a shot into the back of deceased’s head, which produced instant death.

The defense was insanity produced by knowledge recently acquired of immoral relations between deceased and defendant’s wife.

It is first contended that the trial court erred in overruling the application of the defendant for a continuance of the trial. This application is based on the evidence of one of defendant’s witnesses named Dixie Harrell.

It is set out in the affidavit that the absent witness would testify that the deceased, at a picnic in Blanchard, in 1928, offered to pay her money to have illicit intercourse with him; and further that she would testify that she was acquainted with the reputation of deceased and that such reputation was bad.

This offered testimony was absolutely incompetent. The fact — if it be a fact — that deceased had offered this witness money for an immoral purpose, and that his reputation for morality was bad, would constitute no defense to this defendant under the laws of this state.

Defendant in his brief cites State v. Murray, 88 Kan. 148, 110 Pac. 103. In that case the court says, in paragraph 2 of the syllabus:

“Held, the details of the person’s licentious conduct with other women, as related by himself and others to the defendant, were not material. Held further, than an offer of the defendant to show by a woman, who was a witness, that the person assaulted had tried to seduce her was properly denied.”

The other authorities cited by defendant are based upon the statute in the state where the case arose, or else they do not support defendant’s contention.

In January v. State, 16 Okla. Cr. 166, 181 Pac. 514, 515, this court said:

“The so-called unwritten law, ‘the right to avenge wrongs done a female member of a defendant’s family by killing the wrongdoer,’ does not exist in this state.”

The killing of deceased by defendant because of the wrong done the defendant’s wife constituted no defense to the killing, and evidence that the deceased was a man of immoral character, or had sought to have immoral relations with other women, was incompetent.

The trial court did not err in overruling this application for continuance.

It is next contended that the trial court erred in sustaining the objection of the state to the questions propounded to some of the jurors upon their voir dire examination.

This contention is not supported by the record. In addition to this, the record shows that a jury of twelve good and lawful men was impaneled, chosen, and sworn to try the case. The record nowhere discloses that any objectionable juror was forced upon the defendant, or that any of the jurors whose partial examination is contained in the record sat upon the trial of the case. The record does not disclose that the defendant had exercised all of his peremptory challenges. If defendant procured a fair and impartial trial, that was all he was entitled to.

It is next contended that the court erred in excluding the evidence of Eva Kell, the wife of defendant.

This assignment of error relates to- the refusal of the trial court (out of the hearing of the jury) to first permit the wife of defendant to detail to the jury the numerous instances when she had had sexual intercourse with the deceased, and' then to further testify that she had told her husband about these matters on the night before the killing. The fact that deceased had had sexual intercourse with the wife of defendant was immaterial, and would form no defense to- the killing of deceased, and the fact that defendant was told these matters was only competent to the issue of insanity. January v. State, supra.

The wife was an incompetent witness to a communication with her husband, not in the presence of others. Section 2699, C. O. S. 1921; Tingley v. State, 16 Okla. Cr. 639, 184 Pac. 599; Steeley v. State, 17 Okla. Cr. 252, 187 Pac. 821.

It appears from the record that Mrs. Kell was permitted to and did testify to the fact that she repeated what she had told her husband the night before the killing,, the next morning to her brother-in-law and sister, Mr. and Mrs. John Bayliss, and defendant was present at that time. In that conversation Mrs. Kell admitted intimacy and illicit sexual intercourse with the deceased, and therefore everything that Mrs. Kell told her husband in private afterwards got to the jury, so that defendant could not have been prejudiced in the least by the ruling excluding the details of a communication between husband and wife, not in the presence of third persons.

“The exclusion of evidence to prove particular facts is not prejudicial, if the facts sought to be proved are otherwise proved by competent evidence, and it is apparent that the evidence excluded would not have changed the result.” Addington v. State, 8 Okla. Cr. 704, 130 Pac. 311; Rogers v. State, 9 Okla. Cr. 277, 131 Pac. 941; Hawkins v. State, 24 Okla. Cr. 82, 216 Pac. 166.

It is next contended that the court erred in giving instruction No. 9. It is contended that this instruction is erroneous in that it, in effect, places an undue burden upon the defendant to offer proof of his insanity sufficient to raise a reasonable doubt of his sanity in the commission of the homicide. It is contended that this is not a proper statement of the law, in that it overlooks the fact that if the evidence on the part of the state is sufficient to raise a reasonable doubt of his sanity, no burden then rests upon the defendant to raise such reasonable doubt.

Technically, the instruction is probably defective in this respect. But when the instruction is considered in the light of the evidence, it cannot be held to be prejudicial to the substantial rights of the defendant. There is nothing in the testimony on the part of the state that would tend in any manner to present even a suspicion of the defendant’s insanity.

In Morris v. State, 4 Okla. Cr. 233, 111 Pac. 1096, this court said:

“Although an instruction may not be technically correct, yet, if the evidence is of such a character that the defendant could not have been injured thereby, the error will not authorize a reversal of the judge.”

Section 2822, C. O. S. 1921, forbids a reversal in such a case.

From a consideration of the evidence, this court can see that the jury could not have been misled as to its duty by the giving of instruction No. 9, when considered in connection with the other instructions on the question of insanity, and the instruction that it was necessary, before a conviction could result, that the burden rested on the state to prove the defendant guilty beyond a reasonable doubt.

It is next contended that the court erred in permitting the state to place the wife of the deceased on the witness stand to prove by her the number of children she had.

In rebuttal the state introduced Mrs. Hopkins, the wife of the deceased, as a lay witness on the question of the defendant’s sanity, and after the witness had testified on this subject, counsel for the state asked the witness how many children she had, and she was permitted, over the objection and exception of defendant, to answer that she had three. This was as far as the inquiry was allowed. Defendant was permitted to prove the number of Ms children and their sex and ages.

Strictly speaking, this evidence probably had no bearing upon the issue in the case and was incompetent, but this court has repeatedly held that the admission of incompetent evidence is not ground for reversal, unless it affirmatively appears from the record that the plaintiff in error was injured thereby. Manning v. State, 7 Okla. Cr. 368, 123 Pac. 1029; Foreman v. State, 38 Okla. Cr. 50, 259 Pac. 176.

It is next contended that the court erred in refusing defendant’s requested instructions numbered 1 to 7.

This court has repeatedly held that it is not error to refuse to give requested instructions, even though they may correctly state abstract propositions of law, if the propositions of law requested to be instructed upon are sufficiently covered by the instructions given.

An examination of the record discloses that the court covered the principles of law contained in the requested instructions in the general instructions given. It was not error, therefore, to refuse to give those requested.

Finally, it is contended that the court erred in compelling the defendant to picture to the jury the manner in which the deceased was killed, the particular contention being that the killing being admitted, the requiring of the defendant to demonstrate before the jury how he did the killing was compelling him to give evidence against himself.

This court has held that when the defendant takes the witness stand in his own behalf, he subjects himself to the rules of evidence governing other witnesses, and waives all the privileges which he is entitled to by remaining silent, and subjects himself to the same rules of cross-examination and impeachment as any other witness. Davis v. State, 35 Okla. Cr. 156, 249 Pac. 164; Radney v. State, 36 Okla. Cr. 240, 253 Pac. 913, 914.

In considering this assignment, this court is dealing with the defendant as a witness, and the fact that he takes the witness stand in his own behalf amounts to a waiver of the right to incriminate him, if a proper cross-examination has that effect, concerning a matter about which he has testified in chief.

The defense interposed in this case is that of insanity, and the question of the condition of defendant’s mind and of his ability to know and understand just what he was doing at the time of the commission of the crime was relative on that particular issue. It was competent, therefore, for the state to request the defendant, on cross-examination, to demonstrate to the jury, if he could, just how he committed this alleged crime. If the defendant had mental faculty to remember just how he did it and to show the jury that fact, they certainly had a right to know it. Such would be a circumstance having some bearing on the question of the defendant’s sanity at the time of the commission of the crime, as to whether he knew right from wrong as applied to that particular act, and as to whether he realized exactly what he was doing. The weight of such evidence was for the jury. The mere fact that the evidence given by the defendant might have a tendency to incriminate him was not compelling him to give evidence against himself, in violation of article 2 of section 21 of the Constitution, after he had voluntarily taken the witness stand in his own behalf, and testified on direct examination to the matters here in controversy.

An examination of tbe whole record convinces this court that the defendant should have been convicted of murder instead of manslaughter, and the fact that he was only convicted of manslaughter with a seven-year penalty is probably due to the illicit relations which existed between deceased and defendant’s wife, which the jury considered as mitigation of the offense.

No fundamental errors appearing upon the record, and the evidence supporting the verdict of the jury, the cause is affirmed.

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


text:
    BILL ARMSTRONG v. STATE.
    No. A-8163.
    Dec. 17, 1931.
    Rehearing Denied Jan. 15, 1932.
    (6 Pac. [2d] 843.)
    W. N. Maben, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the superior court of Pottawatomie county of the crime of robbery with firearms, and his punishment fixed by the jury at imprisonment in the state penitentiary for 25 years.

The state charged that the defendant and one J. M. «Selvidge, on the 23d day of November, 1930, by the use of firearms, robbed the Bison Theater, in the city of Shawnee, obtaining about $1,100 in cash.

The evidence of the state was that Jack Burger and Dorothy Clouse, who were employees of the theater company, on the 23d day of November, 1930, were taking the receipts for that day up to the office of the theater, which was on the mezzanine floor, for the purpose of putting it in the safe; that, when they got to the top of the stairs, they noticed two men sitting in the lobby; that, when Burger opened the door to the office, and handed Miss Clouse the bag with the day’s receipts in it, these two men rushed up, and, after a struggle, succeeded in shoving Dorothy Clouse through the door; that they followed her in, covered them with pistols, and threatened to kill them if they made an outcry, and proceeded to rob the theater by taking $1,100; that they tied the witnesses with electric light wires and gagged them; that defendant was the owner of a bluish colored Ford coupe, with large casings; that defendant and Selvidge put this car in a garage and checked two' guns in the garage man’s safe on the Friday evening before the robbery; that one of the guns was an automatic with a hammer; that the gun produced by the state at the trial looked like the one checked in at the garage; that there were some .38 and .45 caliber shells in the pocket in the door of the car, and that some of the shells would fit the gun exhibited by the state; that on the Friday following the robbery defendant and Selvidge were arrested at Bartlesville; that defendant was positively identified as one of the robbers. The defense was an alibi.

Defendant contends, first, that the court erred in excluding competent ’ evidence and in the admission of the evidence of the witness Joe Ellis.

The first particular complaint in this assignment is that, when the witness, Jack Burger, was on the stand, he was asked on cross-examination if Dorothy Clouse, when confronted with Selvidge, did not say, “I am not certain about this man,” and have them turn him to the side to see whether she could identify him. When objection was sustained, defendant offered to show that the witness would answer that Miss Clouse stated that she was not positive as to Selvidge being one of the men.

Defendant argues that it was error for the court to (exclude this evidence, because it affected the credibility of the witness Dorothy Clouse by establishing the fact that she was at one time uncertain as to her identification of Selvidge, five days after the robbery.

Defendant next objects that the court erred in refusing to permit one Turner, chief of police of Bartlesville, who had testified that Armstrong told him he robbed a jewelry store in Shamrock, Tex., that night, and said on direct examination that, when Armstrong told the officers anything, he usually told the truth; his answer being, “I said to him, ‘I believe Bill is telling the truth; I have had him several times, and he tells the truth when he tells anything.’ ”

On cross-examination the witness was asked, “Do you still believe him?” Objection was sustained to this question.

The questions of whether or not the witness Burger thought the witness Clouse had difficulty in identifying Selvidge when she first confronted him, and whether the chief of police at Bartlesville still believed that Armstrong told him the truth when he told him he robbed a jewelry store at Shamrock, Tex., on that night, were immaterial.

The witness, Joe Ellis, testified that be was a banker at Shawnee, and was familiar with the banking business. Witness was handed Defendant’s Exhibit 4, which was a check purporting to have been given on November 23, 1930, and was asked: “From your experience as a banker, could you state to the court and jury when the check was paid at that bank that it was drawn on?” The court permitted defendant’s counsel to ask the witness, “Do you know anything about the system of the First National Bank of Sayre? A. No, sir.”

Thereupon the court sustained defendant’s objection to the question. The witness was then permitted to testify as to what system he used in his own bank. When the witness was asked to state when the check in controversy was paid, he said: “I can state the date given on the check as cancelled.” He was asked then what would be the significance in banking parlance of the numbers 10/24/1930. “A. The date that the check was paid— tenth month, twenty-fourth day and thirty year.”

It has been uniformly held that, where instruments bear marks or numbers which require explanation, one qualified to do so may explain the apparent meaning of such marks or notations.

“One who is familiar with the marks or brands used in a certain trade may explain their meaning to the jury.” 11 R. O. L. § 48, page 629.

If a paper is so badly written or spelled that it is difficult to decipher, as a date which might be read “January” or “July,” the evidence of an expert is admissible to . assist the jury. Dresler v. Hard, 127 N. Y. 235, 27 N. E. 823, 12 L. R. A. 456.

“If words have a peculiar meaning or application in a peculiar trade, persons familiar with such trade may testify to such meaning and thereby assist the jury or the court in interpreting, the written or verbal passage in which the words occur, and the meaning of abbreviations or entries in books of account may be explained to the jury by those familiar with the subject.” 11 E. C. L. § 49, p. 629.
“It is clearly admissible to' establish a usage or custom by witnesses who are experienced in the transactions involved and can testify to the facts constituting the usage and custom.” 27 E. C. L. § 43, p. 198.

Finally, defendant contends that the court erred in overruling his motion for a new trial on the ground of newly discovered evidence.

The so-called newly discovered evidence consists of the discovery of the apparently erroneous cashing date on the check. This check had been introduced in evidence in the trial of the defendant’s codefendant, Selvidge; it had always been in the possession of the defendant’s witnesses before the trial, and the question of the erroneous date was fully developed in the trial of Selvidge. Defendant and his counsel may not have before them a written instrument during the trial, and have a new trial on the ground of newly discovered evidence, where such so-called evidence has been on the face of the instrument, and could have been discovered by diligence on the part of the defendant and his counsel. The record clearly discloses that this evidence was not newly discovered, but was a¡ part of the court records of the superior court of Pottawatomie county, open to the inspection of defendant and his counsel, and their failure to inspect the exhibit until after the close of the trial does not constitute newly discovered evidence.

For the reasons stated, the cause is affirmed.

DAYENPOET, P. J., and EDWAEDS, J., concur.


text:
    VAS GRIDER v. STATE.
    No. A-8277.
    Jan. 15, 1932.
    (7 Pac. [2d] 170.)
    See, also, 49 Okla. Cr. 151, 295 Pac. 400.
    Frank Petree, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Jackson county of transporting as a second and subsequent violation of the prohibitory liquor law, and his punishment fixed at a fine of $100 and a term of 30 days in the county jail.

The first contention is that the evidence does not support the judgment. This is not tenable. Certain officers had reasonable cause to believe defendant to have committed a felony, and arrested him under the provisions of section 2471, Comp. St. 1921. A short time after his arrest, they searched the car which he had been driving and found in the back seat behind the cushions a secret compartment in which was concealed about a gallon of whisky. It is claimed this evidence is insufficient, in that the officers could not positively testify the liquid found was in fact whisky. The officers were unable to testify in what manner they determined this was whisky; whether by taste, smell, or otherwise; but no issue on this point was made at the trial.

It is next argued the evidence was obtained by an illegal search. No motion to suppress nor objection was made to the evidence at the time it was offered. At the conclusion of the state’s testimony, a motion was made for a directed verdict, on the ground the evidence was obtained by an unlawful search. Even if otherwise valid, the objection comes too late. Unless objection is made by a motion to suppress or to the introduction of the testimony on this ground, the objection is waived. It is well settled, however, that after a legal arrest a search of the person in immediate presence of the person arrested is valid. Rambo v. State, 38 Okla. Cr. 192, 259 Pac. 602; Smith v. State, 51 Okla. Cr. 119, 299 Pac. 243; Moore et al. v. State, 51 Okla. Cr. 411, 1 Pac. (2d) 813.

The case is affirmed.

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


text:
    JAMES JAMISON v. STATE.
    No. A-8212.
    Jan. 15, 1932.
    (7 Pac. [2d] 171.)

      J. M. Hill, for plaintiff in error.
    J. Berry, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Mayes county of theft of an automobile and was sentenced to serve a term of 7 years in the state penitentiary.

The prosecution is under section 2120, Comp. St. 1921. Defendant was represented by counsel appointed by the court. The record was furnished, and the appeal taken as a pauper. No briefs in support of the appeal nor for the state have been filed. In accordance with the rule of this court, where no briefs in support of the appeal have been filed, this court will examine the record to ascertain if the evidence supports the judgment, and if any jurisdictional or fundamental error occurred at the trial. The record discloses that, at the time charged, defendant, in the town of Salina, drove an automobile belonging to another from where it was parked near a church, a distance of about a half mile, to a filling station, where he was arrested, and the car recovered. The defense was that defendant at the time was so intoxicated he was incapable of having the essential intent. The court submitted the issue to the jury. Its verdict on this point is not supported by the evidence, but is against practically all the evidence. The testimony, both for the state and the defendant, is that defendant at the time was maudlin drunk. In the afternoon preceding he was intoxicated. A few minutes before the car was taken he met some persons near the church; he was drunk, staggering, and wanted to fight with them. When he arrived at the filling station he did not want any servicing for the car, but immediately engaged in a drunken quarrel, and sought to fight with the attendant. He then started the car and ran it against and. tore down and wrecked one of the gasoline pumps. The attendant then pulled him out of the car and held him until an officer arrived. There is other evidence on this point, which clearly shows defendant at the time charged was so intoxicated that he was irrational and not capable of forming an intent to steal. His own testimony and acts and conduct refute the claim that he intended to convert the car to his own use and benefit. The law is well settled in Huffman v. State, 24 Okla. Cr. 292, 217 Pac. 1070, and other cases. On the record be'fore us, this conviction cannot be permitted to stand.

The case is reversed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    PAUL GLASSCO v. STATE.
    No. A-8256.
    Jan. 15, 1932.
    (7 Pac. [2d] 172.)

      W. B. Howell, Ben F. Williams, Homer Cowan, and Thos. R. Benedum, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Coal county of the crime of manslaughter in the first degree, and his punishment fixed by the jury at imprisonment in the state penitentiary for seven years.

It is disclosed by the record, in substance, that upon return and receipt of this verdict in open court, defendant’s counsel announced that he would not file motion for a new trial, and waived his right to have the court fix a time to pronounce judgment and sentence, and requested that the court immediately pronounce judgment and sentence upon the verdict.

It further appears that the trial court, upon its own motion and over the objection of defendant, set the verdict aside and granted a new trial.

The only question to be considered by this court is the power of the trial court to grant a new trial after conviction, over the objection of defendant.

Section 2754, C. O. S. 1921, provides:

“The court in which a trial has been had upon an issue of fact has power to grant a new trial when a verdict has been rendered against a defendant by which his substantial rights have been prejudiced, upon his application in the following cases only. * * *”
“The right of a new trial in a criminal case is statutory.” 16 Corpus Juris, 1121.

In Watson v. State, 26 Okla. Cr. 377, 224 Pac. 368, this court said:

“The Legislature has the constitutional right to prescribe conditions upon which a new trial shall be granted to a defendant who has been convicted of a crime; and the statute which provides that, ‘The granting of a new trial places the parties in the same position as if no trial had been had,’ is not unconstitutional.”

In the body of the opinion the court said:

“These provisions of the statute are clear and explicit, and in no wise contravene the letter or the spirit of the fundamental law. The power to grant a new trial in criminal cases constituted no part of the jurisdiction at common law. This power is in most of the states, as in this state, conferred by express legislation. In every case where we have seen the question discussed, it is assumed as a power conferred by legislation or by long usage, and in no' case is it held to be a constitutional grant. It is a privilege offered by the law to the accused, in addition to the guaranties afforded by the Constitution. As the power is conferred by law, it is competent for the legislative department of the government to extend it, or to limit and modify it, at its pleasure, or to prescribe upon what terms it may be granted, so that it does not infringe upon any constitutional guaranty. * * *
“The Legislature has prescribed the grounds upon which a new trial may be granted, and has imposed certain conditions on the defendant, one of which is that he shall be deemed to have waived his constitutional protection against former jeopardy.
“The sections above quoted measure the extent of the waiver and fix its necessity, and that necessity is that the party convicted must waive the entire right so as to bring himself within the power of the court to grant him a new trial. He makes his motion with the full knowledge of the risk he takes and with all the possible consequences. To obtain a new trial he voluntarily waives a right that neither courts nor the Legislature can take from him — a right that he surrenders for his own benefit, and the exact extent of which is plainly written, as the terms on which it could be done, if his motion is granted.”

See, also, Duncan v. State, 41 Okla. Cr. 89, 270 Pac. 335.

The Attorney General in his brief says:

“The statutory grounds for a new trial are stated in section 2754, idem, and it is provided only that a new trial may be granted upon the application of the defendant. Nowhere in the statute is it provided in a criminal case that in the absence of fraud or other matter that' vitiates the verdict that a new trial may be granted on the application of the state or by the judge on his own motion. In this case there is no question but what the proceedings were regular in every particular, that the jurisdiction of the court over the offense and of the defendant was established, that the information was sufficient to charge the crime of murder, that the defendant entered his plea of not guilty thereto, that a jury was duly and legally impaneled to try the issue, and that a true deliverance was made by said jury in its verdict finding this defendant guilty of manslaughter in the first degree, so that it is the opinion of the Attorney General that all the elements were present which placed this defendant in jeopardy of a conviction for murder in the trial of this case under the pleadings.”
“The jury having returned a verdict of guilty of manslaughter in the first degree in this case after the trial judge had seen fit to submit that issue to them, and no question being raised as to the validity of said verdict upon a motion for a new trial by the defendant, or upon the application of the state by reason of fraud or other ground that might vitiate it, and no such reason being stated by the court, it is the opinion of the Attorney General that the duty of the court, under the law of this state, was to pronounce sentence and render judgment on said verdict in accordance therewith, as provided in section 2750, C. O. S. 1921, and that the trial judge had no jurisdiction to do what he attempted to do in this case.”

The reason the trial judge gave for setting the verdict aside on his own motion was that the punishment assessed was inadequate.

Under the law of this state it is the right of the jury to fix the punishment, and the court can only do so where the jury fail to agree. The mere fact that the jury fixed a less punishment than the court deems adequate is not ground for a new trial. It is as much the province of the jury to fix the punishment as to pass upon the credibility of the witnesses and the weight to be given their evidence. The court may not invade this province of the jury and set their verdict aside merely because, in his judgment, the punishment is insufficient.

The trial judge being without any authority to set aside the verdict of the jury finding the defendant guilty of manslaughter in the first degree and grant a new trial, over the objection of defendant, the order made by him attempting to do so was void and without any legal force or effect. It was the duty of the court to pronounce judgment in accordance with the verdict.

In White v. State, 42 Okla. Cr. 50, 275 Pac. 1067, this court said:

“Where a verdict of the jury assessing the punishment is in conformity with the law, the court must enter judgment and sentence in conformity with the verdict. Where there is a variance between the verdict of the jury and the sentence of the court, on appeal this court will remand the cause, with direction to. the trial court to render judgment and sentence in conformity to the verdict.” Caudill v. State, 9 Okla. Cr. 66, 130 Pac. 812; Barrett v. State, 39 Okla. Cr. 50, 263 Pac. 166.

For the reasons stated, the cause is reversed and remanded, with directions to the trial court to have the defendant brought into court, vacate its order setting aside the verdict of the jury and granting a new trial, and to pronounce judgment and sentence upon the defendant in conformity with such verdict.

It is further ordered that defendant be credited upon the seven years’ punishment fixed by the jury with whatever time he has been imprisoned since the return and receipt of said verdict by the court.

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


author: PER CURIAM.

text:
    HUGO CAIN v. STATE.
    No. A-8179.
    Jan. 15, 1932.
    (7 Pac. [2d] 1118.)
    J. Berry King, Atty. Gen., and .Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called the defendant, was convicted of manslaughter in the first degree, and was sentenced to serve a term of four years at hard labor in the state penitentiary, and appeals.

The record in this case was filed in this court on June 11, 1931; no brief has been filed in support of the defendant’s assignment of errors. A careful examination of the record discloses no fundamental error, and the evidence is sufficient to support the verdict of the jury.

The case is therefore affirmed.


text:
    CARTER CAMP v. STATE.
    No. A-8234.
    Jan. 15, 1932.
    (7 Pac. [2d] 1118.)
    L. A. Justus, Jr., for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter referred to as the defendant, was informed against jointly with Marie Ware, was tried separately, and convicted of robbery with firearms, and his punishment fixed at imprisonment at hard labor for 18 years in the state penitentiary, at McAlester, and appeals.

The record in this case was filed in this court on August 13, 1931; no brief has been filed in support of the defendant’s assignment of errors. A careful examination of the record discloses no fundamental error, and the evidence is sufficient to support the verdict of the jury.

The case is therefore affirmed.


text:
    A. B. COLE v. STATE.
    No. A-8267.
    Jan. 15, 1932.
    (7 Pac. [2d] 1118.)
    Mathers & Mathers and B. H. Morgan, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was informed against jointly with Andrew Fitz, was tried separately, and convicted of burglary in the second degree, and sentenced to two years’ imprisonment in the state penitentiary, and appeals.

The record in this case was filed in this court on September 19, 1931; no brief has been filed in support of the defendant’s assignment of errors. A careful examination of the record discloses no fundamental error, and the evidence is sufficient to support the verdict of the jury.

The case is therefore affirmed.

EDWABDS and CHAPPELL, JJ., concur.


text:
    J. M. SELVIDGE v. STATE.
    No. A-8162.
    Jan. 23, 1932.
    (7 Pac. [2d] 493.)
    John T. Levergood, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the superior court of Pottawatomie county of the crime of robbery with firearms, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of 30 years.

The state charged that the defendant and one Bill Armstrong on the 23d day of November, 1930, robbed, by the use of firearms, the Bison Theater in the city of Shawnee, obtaining about $1,100 in cash.

The evidence of Jack Burger and Dorothy Clouse, who were employees of the theater company that operated the Bison Theater, was that on November 23, 1930, at about 9:45 p. m., they were taking the receipts for that day up to the office of the theater, which was on the mezzanine floor, for the purpose of putting the money in the safe; that when they got to the top of the stairs they noticed two men sitting in chairs in the lobby; that when Burger opened the door of the office and handed Miss Clouse the bag with the day’s receipts in it, these two men made a rush and after a struggle succeeded in shoving Miss Clouse through the door; that they followed her in, covered them with pistols and threatened to kill them if they made an outcry, and proceeded to rob the theater of the $1,100, a part of which was taken from the safe; that they also tied the witnesses with some electric light wire and gagged them.

That Armstrong was the owner of a bluish colored Ford coupe, with large casings; that defendant and Armstrong put this car in a garage and checked two guns in the garage man’s safe, on Friday evening before the robbery; that one of these guns was an automatic with a hammer; that the gun produced by the state at the trial looked like the gun checked in at the garage; that there were some 38 and 45 caliber shells in the pocket on the door of the car; and that some of the shells would fit the gun exhibited by the state.

That on Friday following the robbery defendant and Bill Armstrong were arrested in the city of Bartlesville. These witnesses, Burger and Clouse, positively identified the defendant as one of the robbers. The defense was an alibi.

Defendant alleges numerous errors, but argues them all under three heads:

First, misconduct on the part of the county attorney in repeatedly asking prejudicial questions.

Counsel for defendant in his brief points out three instances wherein he alleges that the county attorney persisted in asking incompetent and prejudicial questions in cross-examination of certain of defendant’s witnesses.

An examination of the record discloses that these objections on the part of defendant’s counsel were uniformly sustained, and in one instance the county attorney was admonished by the trial judge not to ask that line of questions. There was no repetition of these alleged improper questions to any witness after the court had ruled against the county attorney. Counsel for defendant cites Pickrell v. State, 5 Okla. Cr. 391, 116 Pac. 957, and later cases following that decision, where the court condemns, not the asking of incompetent questions, but the persistent asking of such incompetent questions after the court has ruled upon the same and the taking of exceptions thereto, all of which appears to have been done for the purpose of prejudicing the jury.

In Hendricks v. State, 23 Okla. Cr. 18, 212 Pac. 330, this court said:

“The fact that the county attorney asked some questions which may have called for imcompetent testimony is not prejudicial error, where the trial judge promptly sustained objections and no incompetent evidence was permitted to go to the jury, and there was no such repeated asking of these questions and exceptions to the ruling of the trial judge by the county attorney that amounted to prejudicial misconduct.” See, also, Pitman v. State, 33 Okla. Cr. 165, 242 Pac. 288.

An examination of the record discloses the asking of some incompetent questions, but that the county attorney desisted from asking such questions when objection was sustained thereto by the court. The record brings this case within the rule laid down in Hendricks v. State, and Pitman v. State, supra.

Defendant next contends that the court erred in excluding evidence of defendant’s alibi.

The record does not support the contention of the defendant that the court excluded all of the evidence of the witness Buckhalter, who testified that he saw the co-defendant, Armstrong, in Sayre, Okla., at 11 o’clock p. m., on November 23, 1930, the night the Bison Theater was robbed in Shawnee. Buckhalter did not testify that he saw the defendant in Sayre on that occasion. He did testify that Armstrong pawned his watch to him for $8, and that the filling station man also gave Armstrong some gasoline and oil. On motion of the county attorney, the trial court struck from the consideration of the jury all of Buckhalter’s testimony relative to the transaction he had with Armstrong relative to the pawning of the watch, because Buckhalter testified that he did not see defendant there, but did not take from the jury the evidence given by Buckhalter as to Armstrong being in Sayre at the time of the robbery.

The court left with the jury the testimony of Mrs. Isabel Van Horn that she saw Armstrong and defendant in Sayre on the night of the 23d of November, and that they were both at the filling station where Buckhalter testified that he had seen Armstrong. The court also left before the jury the evidence of Mrs. Van Horn that she saw Armstrong and defendant between 2 and 5 o’clock on the evening of November 23, 1930; that Armstrong came to her house about 9 o’clock Sunday evening and stayed until Monday evening at 4 o’clock; and that she went riding with Armstrong and defendant all Sunday afternoon, and that defendant came back to her bouse that night witb Armstrong.

The court also left the evidence of M. L. Lively, who testified that on the 23d day of November, 1930, he was running a rooming house in ¡Shamrock, Tex., and that defendant was there at his place that day; that two came and the defendant was one of them; that defendant was registered at his hotel on the day before.

The defense of alibi was concretely before the jury. The trial court did not err in striking out the testimony of the witness Buckhalter relative to the transaction he had with Armstrong about the pawning of the watch and the giving of the check for the same, but this error is not sufficient to require a reversal of the case.

Section 2822, C. O. S. 1921, provides:

“No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.” Rogers v. State, 9 Okla. Cr. 277, 131 Pac. 941; Cooper v. State, 12 Okla. Cr. 142, 152 Pac. 608; Blanck v. State, 14 Okla. Cr. 339, 169 Pac. 1130; Smith v. State, 34 Okla. Cr. 318, 246 Pac. 883.

Finally, defendant contends that the court erred in refusing to grant the defendant a new trial on the ground of newly discovered evidence.

This alleged newly discovered evidence relates to the fact that a certain check which the defendant introduced as evidence on his alibi, alleged to have been given by Buckhalter to Bill Armstrong for the pawning of the watch by Armstrong to Buckhalter, bore the perforated cancellation mark of payment by the bank of October 24, 1930, instead of November 24, 1930. In support of tbe motion for a new trial defendant offered some affidavits by an officer and an employee of tbe bank that tbis perforated mark was incorrect, and that the bank clerk bad made a mistake in not changing the day of tbe month, but instead bad changed tbe date of tbe month one back instead of changing tbe day of tbe month one up, and that tbe cancellation should have read November 25, 1930, instead of October 24, 1930. Tbe check was introduced in evidence by the defendant in the trial of tbe case. The check is dated Sayre, Okla., November 23, 1930, and indorsed: “The Beckham County National Bank, Sayre, Oklahoma, Nov. 25, 1930.” Indorsed: “Nov. 23, Frank Stewart, Tecumseh, Okla. H. C. Lewis.” Perforated through check: “Paid 10 — 24—30 86 — 254.” This perforated mark appeared on the face of the check, and this check was at all times in the possession of defendant, or one of his witnesses. These contradictory indorsements and cancellations appearing upon the face of the check could have been discovered by the exercise of any reasonable amount of diligence prior to the beginning of the trial. Upon the whole record it cannot be said that defendant exercised due diligence in the discovery of this evidence.

This court has repeatedly held that the granting of a new trial on the ground of newly discovered evidence rests largely in the discretion of the trial court, and that a judgment of conviction will not be reversed on this ground unless there appears to have been a clear abuse of judicial discretion on the part of the trial court in denying a new trial. Howey v. State, 9 Okla. Cr. 453, 132 Pac. 499; Rhoades v. State, 16 Okla. Cr. 446, 184 Pac. 913; Stilwell v. State, 18 Okla. Cr. 10, 192 Pac. 253.

An examination of the whole record discloses that defendant had a fair trial and that the evidence amply supports the verdict of the jury.

The cause is therefore affirmed.

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


text:
    CHARLIE GWYNNE v. STATE.
    No. A-8236.
    Jan. 23, 1932.
    (7 Pac. [2d] 493.)
    Guy D. Talbot and John P. Evans, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Alfalfa county of the crime of robbery with firearms in the robbing, of the Bank of Burlington, in said county, and his punishment fixed at confinement in the state penitentiary for a period of five years.

The appeal is by transcript. Judgment and sentence was rendered on the 12th day of February, 1931. The petition in error and transcript was filed in this court on the 14th day of August, 1931.

Section 2808, C. O. S. 1921, provides:

“* * * In felony cases the appeal must be taken within six months after the judgment is rendered, and a transcript in both felony and misdemeanor cases must be filed as hereinafter directed.”

August 12, 1931, was the last day upon which an appeal could be filed in this court from such judgment. Where the appeal is not filed within six months from the date of judgment, this court acquires no jurisdiction. Gorman v. State, 9 Okla. Cr. 351, 131 Pac. 939; Mathis v. State, 18 Okla. Cr. 199, 194 Pac. 278.

For the reasons stated, the appeal is dismissed.

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


text:
    SAM MASON v. STATE.
    No. A-8155.
    Jan. 23, 1932.
    (7 Pac. [2d] 492.)

      Morris & Wilhite, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Oaddo county of a second and subsequent violation of the prohibitory liquor laws, and his punishment fixed by the jury at a fine of $50 and imprisonment in the state penitentiary for one year and one day, and appeals.

It is contended by the defendant that the trial court erred in permitting the introduction of incompetent, irrelevant, and immaterial evidence, in this, that the court permitted the state to introduce evidence that the general reputation of the defendant’s residence as being a place where intoxicating liquors were kept with intent to sell the same was bad. The defendant insists that no proper predicate was laid for the admission of this evidence. With this contention we agree. The evidence introduced by the state did not lay a sufficient predicate to authorize the introduction of the evidence of the general reputation of the defendant’s home as being a place where intoxicating liquors were kept, bartered, and sold. There is not sufficient evidence to show that the home of the defendant was a place of public resort. Conley v. State, 40 Okla. Cr. 128, 267 Pac. 491; Garrett v. State, 40 Okla. Cr. 195, 267 Pac. 683; Moore v. State, 34 Okla. Cr. 411, 246 Pac. 1112; Beatty v. State, 34 Okla. Cr. 418, 246 Pac. 1103; Harrington v. State, 51 Okla. Cr. 233, 1 Pac. (2d) 181; Brown v. State, 45 Okla. Cr. 234, 282 Pac. 692.

It is further urged by the defendant that the court erred in giving instruction No. 6, which is as follows

“6. You are instructed, gentlemen, that in this case the defendant had seen proper not to take the witness stand and testify in his own behalf, as, under the law, he had a right to do, but he is not required to do so; and the fact that he did not take the witness stand and testify in his own behalf, must not be considered by you as any evidence against him, neither must the same be commented upon or mentioned by you, or either of you, during your deliberations in arriving at his guilt or innocence.”

Section 2698, C. O. S. 1921, is as follows:

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

Instruction No. 6 was an erroneous instruction. Sturgis v. State, 2 Okla. Cr. 362, 102 Pac. 57; Shelton v. State, 49 Okla. Cr. 430, 295 Pac. 240; Sweeney v. State, 51 Okla. Cr. 303, 1 Pac. (2d) 789.

The court should refrain from making reference to the defendant in its instructions, where the defendant failed to testify. For the reasons stated, the cause is reversed.

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