text:
    LEE WALKER v. STATE.
    No. A-9184.
    July 30, 1937.
    (70 Pac. 2d 1099.)
    Ratliff & Clark and Newman & Phillips, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error was by information jointly charged with L. C. Privett with the larceny of five fresnoes, of the value of $137.50; was tried separately, convicted, motion for new trial filed, considered, overruled, and the record properly saved. The plaintiff in error, who will hereinafter be referred to' as the defendant, was sentenced to serve three years in the state penitentiary.

James.R. Banner, testifying for the state, stated:

“I live near Reagan, Tishomingo is my post office; I was working for the United States government in the early part of 1935, near Reagan, at the fish hatchery, and! had control of several fresnoes; along in March, 193'5, 1 was not nsing the fresnoes and stacked them near the road down where I had been working, and in 'September, 1935,1 missed five of them and located them at Fittstown, near the barn of the defendant Lee Walker. When I stacked the fresnoes in March I stacked them near my garage; they were stacked there March 22, 1935, when the FERA quit operating; during the time the FERA was furnishing the labor we had thirty fresnoes; the garage is about 150 yards from the foreman’s residence, and about 150 feet from the road; these five fresnoes I found in the possession of Lee Walker, at Fittstown, the defendant stated to' me he had bought., The fresnoes were delivered! to me but are held by the sheriff until this case is disposed of.”

Coot Coker, testifying for the state, stated he worked at the fish hatchery in 1935, during the month of March; that the latter part of March, 1935, the FERA quit working:

“I was foreman of the gang, and as foreman used! a number of fresnoes; when we quit work I stacked them at the new garage on the property; I believe I stacked thirty; some time in September I went with Mr. Raper to Fittstown, and at the defendant Walker’s place we found some- of the fresnoes; Mr. Walker was not at home when we first went to his place; he came in shortly after-wards and stated he bought these fresnoes. These fres-noes are branded Western.’ ”

W. W. Raper, a deputy sheriff, stated he had received information that some fresnoes were at the Walker place and called Mr. Banner and Mr. Coker, and they went out there and found them; he asked Mr. Walker if they were his, and he said they were, that he had bought them; he did not know the fellows from whom he bought them; he had never seen them until the day he bought the fres-noes and had not seen them since.

Some other testimony was admitted as to other fres-noes the defendant had been using. The testimony shows that the fresnoes had been stacked by the parties who were using them in March and were not missed until the September following.

The defendant in his testimony shows he was a contractor in what is known as Fittstown in the oil field, and that he had been using teams and fresnoes. The defendant states one afternoon along in March or the 1st of April, two men came to where he was at the camp corral, and told him they wanted to sell him some fres-noes and described them to him, and he told them if they were as good as they described them he would buy them; they left and stated they would return about 3 or 4 in the afternoon, but they did not return until about 8 o’clock. The defendant says he bought them from these parties, paying $60, that he wanted to give them a check, but they did not want to take the check and he went to Barnes’ store and got the money; that he did not know their names and that he did not take a receipt for the money for the fresnoes. The defendant had been using the fresnoes first and last from March until the 1st of September, and ' when not using them he would leave them near his house and garage on the public thoroughfare where any one passing could see them.

There is no evidence tending to show that the defendant made any effort to conceal the fresnoes, or that he ever denied having them; he told every one who asked! about them that he bought them from two men whose names be did not know, that be did not know where they lived, but they said they came from Coalgate. Defendant said that after be was charged with the crime be made an effort to locate them in Coalgate, but failed to do so'.

Several witnesses were called by the defendant who testified to seeing the men the day they came to sell the fresnoes to the defendant. A witness by the name of E. E. Sutton, who was present when the fresnoes were unloaded at the defendant’s place, stated be beard them talking to Mr. Walker; that Mr. Walker wanted to give them a check and they did not want to take it, and Mr. Walker went to town and got the money; this transaction was some time in March, he would not be sure as to the date. After Mr. Walker purchased them, they used them and Mr. Walker had the control of them up to the time the officers came and got them.

There was no effort on the part of Mr. Walker to conceal the fresnoes; they were setting around the camp; “when I went to work for Mr. Walker he had two or three old fresnoes.”

The defendant then offered several witnesses who testified as to* his previous good character in the community in which he lived.

Ten errors have been assigned by the defendant as grounds for reversal. The assignments necessary to be considered are:

“1. That said verdict is contrary to law.
“2. That said verdict is contrary to and against the evidence produced by the state herein.
“3. That , said verdict is contrary to the law and the evidence.”
“7. The court erred in refusing to sustain plaintiff’s motion for a directed verdict, and error in refusing, to sustain plaintiff’s demurrer to the evidence at the conclusion of state’s testimony in chief.”

The only question for this court to determine is the question of the testimony. Is the testimony sufficient to sustain a conviction of grand larceny?

(Section 2253, O. S. 1931 (21 Okla. St. Ann. § 1701), defines larceny as follows:

“Larceny is the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof.”

Section 2255, O. S. 1931 (21 Okla. St. Ann. § 1703), reads as follows:

“Larceny is divided into two degrees; the first of which is termed grand larceny, the second petit larceny.”

Section 2256, O. S. 1931 (21 Okla. St. Ann. § 1704), defines “grand larceny”:

“Grand larceny is larceny committed in either of the following cases: 1. When the property taken is of value exceeding |20. 2. When such property, although not of value exceeding |20 in value, is taken from the person of another.”

The evidence in this case on the part of the state shows that five fresnoes were taken by some one from where they were stored, and that they were found at the home of the defendant. It is not denied by the defendant that these fresnoes were the fresnoes missed by Mr. Banner, the witness who had possession of them, nor is there any question of ownership raised by the defendant.

The defense made by the defendant is that he did not steal the fresnoes found in his possession, but in the regular course of bumness he bought them from some unknown parties who came to his place where he was working; that the parties described the fresnoes and told him they would be back about 3 or 4 in the afternoon, but they did not return until 8 or 9 in the evening, Two or three witnesses saw them come to the defendant’s place in the afternoon and inquire for the defendant. The defendant Avas a contractor engaged in the oil field, using teams and fresnoes. Witnesses stated the parties asked for Mr. Walker and they told them he was up at the camp corral and the parties left.

The defendant explained that they came to where he was working and proposed to sell him the fresnoes, and! after some negotiations he told them if they were as good' as they said they were he would buy them, and they left and returned about 8 or 9 o’clock in the evening; that he made an examination of the fresnoes brought to his place by the parties and bought them. Mr. Sutton, one of his employers, Avas present; the fresnoes were unloaded and as the parties would not take a check the defendant went up to Mr. Barnes’ store and got some money and! paid them, without taking a receipt for the money, a bill of sale for the fresnoes, or any one seeing him pay them the money.

The charge in this case is larceny of the fresnoes, and not the receiving of them knowing them to have been stolen.

According to the testimony, the fresnoes had been in the possession of the defendant for several months before Mr. Banner missed them. The defendant had used theme in his work where a number of men were employed, and when the work ceased they were stacked in view of all coiners and goers, no effort being made to conceal the fresnoes alleged to have been stolen by the defendant. The state introduced some testimony of a witness by the name of Jackson, that some time in March or April, several months prior to the time the defendant was arrested, while returning from .Sulphur with the defendant, the defendant told him he wanted to pick up a fresno and take it home with him, and the next day the witness Jackson began using the fresno: After the defendant was arrested, charged with the larceny of the five fres-noes, the witness Jackson states he was shown the fres-noes which were in the possession of the officers and that neither of the five fresnoes was the fresno that the defendant had picked up as they returned from Sulphur.

The courts have repeatedly held that the possession of recently stolen property is a circumstance to be considered with other evidence in the trial of a larceny case, but such possession alone is not sufficient proof of the crime to warrant a conviction where a reasonable explanation of the same is made of the possession of the property, and the testimony tends to support the explanation.

In this case the defendant is entitled to the presumption of innocence, and| it follows him throughout the trial until overcome by competent testimony. His neighbors who had known him for many years testify to his good character, and the witness Sutton who was present at the time the defendant claims he bought the fresnoes, and saw them unloaded, states that the two men who brought them to the defendant’s home- in discussing the question of pay declined to accept a check, and the defendant went to town and got the money for the parties. The fact that defendant had possession of the property and had had for a number of months is a suspicious circumstance tending to show the defendant might have stolen the same, but is this suspicious circumstance sufficient to overcome the positive testimony of the defendant and other witnesses who testify to the parties delivering the fresnoes, the presumption of innocence of the defendant, and the evidence of a number of his neighbors who had known him in the past testifying as to his good character? We do not believe that it is.

No act of the defendant is shown indicating that he in any way whatever sought to conceal the fresnoes, but, on the contrary, that he used them where there were a number of parties at work, and kept them at his camp at the roadside where they might be seen by any one who came along the road or visited his camp.

The propositions urged in the brief of the defendant are based upon the contention that the court erred in overruling defendant’s motion for a directed verdict, and erred in refusing to sustain demurrer to the evidence, and refusing to advise the jury to bring in a verdict of not guilty, and that the verdict and judgment are contrary to the evidence.

We think the court should have sustained the demurrer to the evidence, and should have discharged the defendant at the close of the state’s testimony. The only thing established is the fact that the defendant was in possession of the fresnoes; that he used the fresnoes publicly, and kept them at his home where anyone might see them, making no apparent effort at any time to conceal the same or mislead any one as to his claim of ownership. Shaw v. State, 13 Okla. Cr. 511, 165 Pac. 617; Vansdale v. State, 45 Okla. Cr. 123, 286 Pac. 170; Stanley v. State, 61 Okla. Cr. 382, 69 Pac. (2d) 398.

The proof offered by the state falls to disclose conduct on the part of the defendant which indicates he had stolen the fresnoes. It would be unreasonable to believe that a man would steal the fresnoes and use them in his work and leave them where any one passing or coming to the place could see them, if he had stolen the fresnoes. In our judgment, the court should have sustained the demurrer and motion to advise the jury to return a verdict of not guilty. The verdict and judgment are contrary to the evidence. The judgment is reversed and the case remanded, with directions to grant a new trial.

DOYLE, J.., concurs. BAREFOOT. J., absent; not participating.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    KEINER LEE v. STATE.
    No. A-9255.
    Aug. 5, 1937.
    (70 Pac. 2d 1111.)
    Homer Windle, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Paul Y. Cunningham, Co. Atty., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter for convenience referred to as the defendant, was convicted in the county court of Kiowa county on a charge of transporting intoxicating liquor, and his punishment fixed by the jury at a fine of $100 and imprisonment in the county jail for 60 days.

The evidence of the state shows that a party living' near Lone Wolf, in Kiowa county, drove into Hobart and advised the officers there was a car out on the road, with a, man in the car; the officers drove out on the road!' and found the car by the side of the road with the defendant in the car; the officers say they stopped and asked the defendant what was the trouble and defendant replied he could not get his car started, and that the officer got out of his car and tried to start the car and could not, and Joe Walker, another officer, got out of the car he was in and tried to start the car, and in doing so he struck his foot against a sack in the car and discovered it was filled with fruit jars containing, whisky. The officers arrested the defendant and put him in jail.

Both the officers admit that from the time they first saw the car and defendant and took him into custody and brought him to town, the car which the defendant was in when they first saw him was not moved. There is not a word in the testimony showing that the defendant moved the car from where the officers first saw it until he was arrested. The charge in this case is transporting intoxicating liquor. The foregoing is in substance all of the state’s evidence. Wicker v. State, 47 Okla. Cr. 358, 288 Pac. 398.

The charge being transporting intoxicating liquor, and there being no evidence in the record to support the verdict, the same is reversed.


text:
    EUTA BRITTON v. STATE.
    No. A-9248.
    Aug. 5, 1937.
    (70 Pac. 2d 1112.)
    Mathers & Mathers, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Euta Britton, hereinafter referred to as the defendant, was by information charged with selling intoxicating liquor to Bill Kerr; was tried, convicted, and sentenced to pay a fine of $50, and to be confined in the county jail for 80 days.

The testimony is brief. Two deputy sheriffs, W. E. Agee and Clint Johnson, testify they drove out near defendant’s home and sent Bill Kerr with $2 to defendant’s home to see if he could purchase whisky, and later Bill Kerr returned and brought a pint of whisky with him. The deputies state they gave Bill two $1 bills; neither of the deputies saw Bill make the purchase of the whisky; the only thing they know is that Bill went to the house and came back and claimed he had bought a pint of whisky from the defendant.

The record shows that Bill Kerr was at Norman. Okla., at the time the case was called for trial but did not testify in the case. Neither of the deputies testify they searched Bill before he left them to see if he had any whisky on his person, and that he did not have any whisky, nor did they testify when they went with the search warrant to search the home of the defendant, which they claim they had a search warrant prior to sending Kerr to buy the whisky, they found the money in defendant’s home or on her person they claimed they had given to Bill Kerr. Not a word of competent testimony has been introduced to show the sale of the pint of whisky to Bill Kerr. Usually in cases of this character the deputies, when they send out a party to buy whisky, commonly known as a snitcher, they mark the bills when they give them to the party, and then it is followed up by showing that when they searched the defendant’s home they found the marked bills in the defendant’s home or in the defendant’s possession, but no such evidence is included in this record. There is a total failure of proof of sale.

The judgment of the trial court is reversed.


text:
    TED GERNER v. STATE.
    No. A-9211.
    Aug. 13, 1937.
    (70 Pac. 2d 1112.)
    George Miller, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the .State.
   PER CURIAM.

The plaintiff in error, hereinafter called the defendant, was convicted of the larceny of an automobile, and sentenced to serve a term of five years in the state penitentiary, and appeals.

The record in this case was filed in this. court on October 9, 1936; no brief has been filed in support of the defendant’s assignment of errors. A careful examination of the record discloses no fundamental error. The evidence is sufficient to support the verdict of the jury.

■ The case is therefore affirmed.


author: DOYLE, J.

text:
    W. L. SELF v. STATE.
    No. A-9207.
    Aug. 13, 1937.
    (70 Pac. 2d 1083.)

      Grigsby & Andrews, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction for rape in the first degree and sentence in accordance with the verdict of the jury for the term of 99 years in the penitentiary. The information filed in the district court of Pontotoc county March 3, 1936, charges that in said county on or about the 30th day of June, 1935, the defendant, W. L. Self, accomplished an act of sexual intercourse with one Christine Self, a female under the age of 14 years, and not the wife of said defendant.

On reading the evidence, and carefully considering the proceedings on the trial, our conclusion is that the judgment in this case cannot be permitted to stand. The conviction rests solely upon the uncorroborated testimony of the daughter of the defendant, the female with whom the incestuous intercourse is alleged to have been committed. In the view we take of the record and the duty devolving upon this court as to> the disposition to' be made of the case, it is unnecessary to discuss and determine questions arising upon the rulings of the court in relation to matters occurring preliminary to the trial upon the merits.

The principal assignment of error is that the evidence is insufficient to sustain the verdict or support the judgment of conviction. Other assignments relate to rulings of the court in admitting incompetent and prejudicial testimony and in the exclusion of competent testimony, and that the instructions given by the trial court incorrectly state the law of the case.

The record shows that nearly every objection to evidence made by counsel for the defendant was overruled and nearly every objection of the county attorney to evidence offered by the defendant was sustained, and most of the rulings of the court upon the evidence are erroneous.

It is a well-established principle of criminal juris-jprudence that incompetent, irrelevant, land immaterial evidence which tends to excite the passions, arouse the prejudices, and awaken the sympathies, or warp or influence the judgment of jurors in any degree, cannot be considered as harmless.

While a conviction for statutory rape may be had on the uncorroborated testimony of the prosecutrix, this is only warranted when all the other facts and circumstances of the offense are corroborative of her testimony and her statements are not inconsistent or contradictory. Without such surrounding facts and circumstances, the bald: statement of the prosecutrix against the defendant would be so devoid of testimonial value as to render it unworthy of belief.

In the early case of Morris v. State, 9 Okla. Cr. 241, 131 Pac. 731. 735, we said:

“This court does not hold with some that, as a matter of law, rape cannot be established by the uncorroborated testimony of the prosecutrix, but in common with all courts recognizes that, without such corroboration, her testimony must be clear and convincing. And, where the testimony of the prosecutrix bears upon its face inherent evidence of improbability, there should be corroboration by other evidence, connecting the defendant with the commission of the crime. The law is that the life or liberty of a citizen shall be taken only in case the right to do so is established beyond all reasonable doubt; and while there is no rule of law which forbids a jury to convict of rape on the uncorroborated testimony of the prosecutrix, provided they are satisfied beyond a reasonable doubt of the truth of her testimony, yet the courts have always recognized the danger of conviction on her uncorroborated testimony, and the testimony of the prosecutrix, if inherently improbable and uncorroborated, will not justify or support a conviction; as the only reasonable conclusion in such cases is that such verdicts are the result of passion or prejudice, and. therefore contrary to law.”

In the ease of Ferbrache v. State, 21 Okla. Cr. 256, 206 Pac. 617, this court held:

“Under the laws of this state, conviction for rape may be had on the uncorroborated testimony of the prose-cutrix; but when her testimony is contradictory, and the defendant testifies and denies specifically the testimony of the prosecutrix, and his testimony is corroborated, the testimony of the prosecutrix, standing alone, is not sufficient to warrant a conviction.”

In the case of Witt v. State, 29 Okla. Cr. 357, 233 Pac. 788, 789, it is said:

“But a charge of rape is one, as has often been said, following the admonition of Lord Hale, ‘that this is an accusation easy to be made and hard to be proved, and harder to be defended by the party accused, though ever so innocent.’ The charge is one that .arouses the passions and prejudicios of jurors, and for that reason it is the duty of the court to closely scrutinize the evidence, and where the evidence of the state is unreasonable, inconsistent, and contradictory, and there is inherent evidence of improbability or indications that the prosecution is maliciously inspired, the court should not permit a conviction to stand.”

In Palmer v. State, 7 Okla. Cr. 557, 124 Pac. 928, this court held that corroboration is likewise necessary where the testimony of the prosecutrix is obtained through fear, threats, coercion, or duress.

The record shows that the county attorney in his opening statement to the jury stated:

“That the defendant and his family were living down at Ti, and his married son was living, with him; that about a week before the filing of this complaint the defendant made a trip up in the northern part of the state, that while he was away on this trip, his daughter-in-law, Lucille Self, and his wife got to questioning the girl — the actions of the defendant and Christine .Self had aroused the daughter-in-law’s suspicion, but when asked about it she, Christine Self, denied it, that is, she denied it at that time, but she was brought to my office on the 26th day of February and after long examination of witnesses and the doctor’s examination here, and going into the history of the case from start to finish, I filed the complaint and had a preliminary hearing.”

Thus it appears, and the record shows, that the testimony of the prosecutrix was obtained through persuasion, fear, and duress. It bears those indications which the testimony of children of that age so frequently bear, of being, to a considerable extent, the thoughts of others— thoughts developed after repeated conversations and much pressure.

It will be observed that there is a direct conflict in her testimony as given on the preliminary examination and on the trial as to what happened while she Avas sleeping Avith her father and mother wherein she states that on the next day in answer to their questions she made the statement to her mother and her sister-in-law, Lucille, of her father’s treatment of her.

It also appears there is a direct conflict in her testimony and that of the only other witness called by the state to show opportunity to commit the crime Avhen they returned from church together that evening. She states that, “We were all coming back home and my brother ran off and left us and my little sister ran off with him.” The witness John Miller testified that he went to church that evening with the defendant and his son Robert and his daughter Christine, and that he left the church with Robert and the defendant came home with Christine.

It may be said in passing that opportunity may be considered as one of the circumstances in a rape case, but it is not corroboration. In several cases it has been held that the mere opportunity to commit the crime of rape is not sufficient corroboration of the testimony of the prosecutrix that rape was committed. State v. Brundidge, 204 Iowa, 111, 214 N. W. 569; Robbins v. State, 106 Neb. 423, 184 N. W. 53; People v. Brehm, 218 App. Div. 266, 218 N. Y. S. 469, 470; State v. Bowker, 40 Idaho; 74, 231 Pac. 706.

It is urged on the part of the state that the testimony of the two physicians making the physical examination, to the effect that they did not find any evidence of the hymen, corroborates the testimony of the prosecutrix.

The prosecutrix testified the first act of sexual intercourse occurred at Tell, Tex., when she “was around 9 or 10 years of age.” Asked whether her father had sexual intercourse with her numerous times, she answered: “Yes, sir, he has.” Asked if after they left Harden City her father had intercourse with her at Tell, Tex., she answered : “Yes., sir.” She was asked by the county attorney: “Have you ever had intercourse with any other man except your father?” To which she answered: “No., sir.” On cross-examination she was asked “whether she had not told her mother that her father was not guilty of this crime, and that John Miller in the first place forced her to go to Lucille and tell that her father was guilty.” To. which she answered: “No.” She was then asked “if she did not confess to' her mother after they moved from Ti to Horatio, that John Miller had had intercourse with her.” To which she answered: “No, sir, I did not.”

The rule must be taken as settled in this state that evidence of illicit acts with the defendant prior and subsequent to the date of the charge relied upon by the state for conviction is admissible.

In the case of Morris v. State, supra, it was held that upon a trial for statutory rape, evidence of other acts of sexual intercourse between the same parties is admissible. including evidence of acts committed subsequent to the particular act relied on for conviction, even though it tends to prove other offenses, as relevant circumstances tending to show the relation and familiarity of the parties, and continuousness of the illicit relations thereby tending to corroborate the testimony of the prosecutrix as to the particular act relied on for conviction.

The great weight of authority is to the effect that in a prosecution for statutory rape evidence of immorality or unchaste conduct with others than the defendant is no defense, and evidence thereof is inadmissible. Penn v. State, 13 Okla. Cr. 367, 164 Pac. 992, L. R. A. 1917E, 668, Taylor v. State, 14 Okla. Cr. 400, 171 Pac. 739, Marlow v. State, 20 Okla. Cr. 326, 202 Pac. 1048.

In the case of Walker v. State, 8 Okla. Cr. 125, 126 Pac. 829. this court held that it is no defense to an accusation that the prosecutrix may have had improper- relations with other men, and that as a general rule the prosecutrix cannot be cross-examined as to whether any one other than the defendant had sexual intercourse with her.

An exception to the rule exists in some cases, and evidence of improper relations with other men is admitted to rebut the testimony of physicians regarding the absence of the hymen, or to account for a condition of pregnancy. 33 Cyc. 1481.

In the case of State v. Paddock, 86 Mont. 569, 284 Pac. 549, 550, which was a case similar to' this, the court said:

“There are many cases supporting the view that where the state introduces evidence showing that the acts of defendant brought about a condition of pregnancy, or a destruction of the hymen, the defendant has the right to show that prosecutrix had improper relations with other men at about the time when she claims the defendant had intercourse with her, in order to account for her condition compatible with his innocence. Among such cases are the following: State v. McPadden, 150 Minn. 62, 184 N. W. 568; Commonwealth v. Duff, 245 Mass. 81, 139 N. E. 351; Atkeison v. State, 100 Tex. Cr. R. 313, 273 S. W. 595; O’Chiato v. People, 73 Colo. 192, 214 Pac. 404; Climer v. State, 162 Ark. 355, 258 S. W. 323; Thomas v. State, 178 Ark. 381, 11 S. W. 2d 771; Fuller v. State, 23 Ariz. 489, 205 Pac. 324; State v. Orton [69 Utah, 304], 254 Pac. 1003; Kayes v. Commonwealth, 221 Ky. 474, 298 Pac. 1096; State v. Edwards [33 N. M. 51], 261 Pac. 806; State v. Quirk, 38 Wyo. 462, 268 Pac. 189; State v. Williams, 161 La. 851, 109 So. 515; People v. Russell, 241 Mich. 125, 216 N. W. 441; State v. Kraus, 175 Minn. 174, 220 N. W. 547.”

In the case of People v. Brehm, supra, the court held that, where a physician had testified that the hymen of prosecutrix had been ruptured, but that he was unable to say when it had been done, it was error to refuse permission to' cross-examine prosecutrix as to illicit rela,-tions with other men. And held further:

“Proof of absence of hymen day after alleged statutory rape and opportunity, together, held not to constitute corroboration of prosecutrix.”

In this case a careful examination of the record fails to show any fact or circumstance tending to corroborate the testimony of the prosecutrix, her testimony consists almost exclusively of monosyllabic answers to leading and suggestive questions propounded by the county attorney, and there does not appear to- have been any necessity or propriety in asking her leading questions which so clearly suggested the answers to the witness.

Aside from the testimony of the prosecutrix, there was no evidence whatever tending to corroborate her testimony as to the several acts, and there was no evidence whatever tending to show the surrounding circumstances or facts of prior and subsequent acts of intercourse between the prosecutrix and the defendant. She stated that the first act and the last act were committed at’ Tell, Tex. This is the only detail as to time or place of said occurrence. No testimony was given by her as to the particulars and there was no direct evidence showing penetration.

It also appears that she made no complaint of injury or mistreatment on the part of the defendant until over eight months had elapsed from the date alleged in the information that the acts charged occurred.

The charge of illicit sexual relations is easily made, and often inspired by malice, hidden motives, or revenge, •and evidence to establish the same may be easily fabricated and hard to disprove. As has been well stated by an able jurist: “There is no class of prosecution attended with so much danger, or which affords so ample an opportunity for the free play of malice and private vengeance. In such cases the accused is almost defenseless.

In our opinion no person charged with crime shoulo: be convicted on such improbable, inconsistent, and unreasonable testimony as that given by the prosecutrix in', this case.

Our conclusion is that the evidence was insufficient to justify or sustain the verdict, and that the verdict was more the result of prejudice than the calm and dispassionate conclusion of the jury upon the facts in evidence.

We may remark here that a spirit of unfairness throughout the trial is apparent.

A fair trial is guaranteed to all persons whether innocent or guilty, and it is the duty of the trial court to uphold this guaranty.

It must not be forgotten that the rules of law in criminal cases are made not only to bring about the punishment of the guilty, but also to protect accused persons npon the presumption that they are innocent of crime until their guilt has been established beyond a reasonable doubt.

For the reasons stated and because the evidence is entirely insufficient to support the conviction, the judgment of the trial court should be reversed and the defendant discharged. It is so ordered.

DAVENPORT, P. J., and BAREFOOT, J., concur.


text:
    J. E. McCONNELL v. STATE.
    No. A-8839.
    Sept. 27, 1935.
    Rehearing Denied March 21, 1937.
    Mandate Issued May 22, 1937.
    (71 Pac. 2d 635.)

      Dudley, Hyde, Duvall & Dudley, Mounts & Chamber-lin, and H. P. Daugherty, for appellant.
    Mac Q. Williamson, Atty. Gen., and Smith C. Mat-son, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction pronounced and entered by the district court of Tillman county, in pursuance of the verdict rendered by a jury finding, “J. E. McConnell guilty as charged of receiving a deposit in a state bank when said bank was insolvent, and assess his punishment by a fine of $3,500.”

The information charged that J. E. McConnell and C. E. McConnell did, on or about the 12th day of January, 1932, commit the crime of knowingly receiving money for deposit, when the bank was insolvent, in manner and form as follows:

“That the said defendants, J. E. McConnell and C. E. McConnell, in the county and state aforesaid, on the day and year aforesaid, being then and there active officers and directors of the Security State Bank of Frederick, Okla., a corporation duly organized and existing under and by virtue of the laws of the state of Oklahoma and then and there engaged in transacting a general banking business in Tillman county, Oklahoma, with its principal place of business at Frederick, Okla., did, as such officers and directors of said bank, knowingly, willfully, unlawfully and feloniously accept and receive a deposit of and! from J. Fyie, in said bank in the sum of ($500) five hundred dollars, in good and lawful money of the United! States of America, consisting of checks of the value of five hundred dollars ($500), in good and lawful money of the United States of America, the personal money of J. Fyie, when said bank was insolvent, and said defendants and each of them then and there knew said bank was insolvent, contrary to, etc.”

This information charges an offense under section 9188, St. 1931 (6 Okla. St. Ann. § 233), which reads:

“No bank shall accept or receive on deposit, with or without interest, any money, bank bills or notes, or United States treasury notes, gold or silver certificates, or currency, or other notes, bills, cheeks or drafts, when such bank is insolvent; and any officer, director, cashier', manager, member, party or managing party of any bank who shall knowingly violate the provisions of this section, or be accessory to or permit or connive at the receiving; or accepting of any such deposit, shall be guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding $5,000, or by imprisonment in the penitentiary not exceeding five years, or by both such fine and imprisonment.”

As reasons for a reversal several errors are assigned, among them being that the evidence is insufficient to sustain the verdict.

It appears that the Security State Bank of Frederick was organized in 1920; appellant was a director and vice president. In January, 1923, he was elected president, with a salary of $100 a month; that his son C. E. McConnell, codefendant, was elected cashier, and that they were each successively re-elected as such officers and served as such, until said bank was closed by the State Bank Commissioner, in January, 1932.

It is undisputed that on January 12, 1932, the last day said bank was open for business, J. Fyie deposited with said bank cash or its equivalent in the sum of $500.

On January 15, 1932, the State Bank Commissioner, omitting formal recitals, made the following order:

“And thereupon, after considering the recommendation of Elmer E. Wilson, a duly appointed Assistant Bank Commissioner, who has examined the affairs of said bank, and being familiar with the conditions of said bank, I am of the opinion that said bank should be closed and its books, records and assets taken charge of by me as Bank Commissioner of Oklahoma., as provided by law, for the following reasons, to wit: (1) That the actual cash market value of its assets is insufficient to pay its liabilities. (2) That it is unable to meet the demands of its creditors in the usual and customary manner. (3) That it has failed to make good its reserve as required by law.”

It appears that Clyde Faught was appointed liquidating agent together with C. E. McConnell, codefendant, who continued as such agent but for a short time, then resigned.

Clyde Faught testified that he continued to act as liquidating agent of said bank up to the time of the trial of this case; that after he was appointed, he selected two groups of appraisers, to appraise both secured and unsecured assets of said bank at their cash market value as of January 12, 1932. And they made a report as to the fair market value of both the secured notes and the security behind the notes, and the unsecured notes.

The books of the bank were introduced to show the condition at the time of the deposit. Then the bank records were identified and introduced in evidence, consisting of the stock register, the teller’s cashbook covering dates of November 30, 1931, to January 14, 1932, the general ledger, the liability ledger, the draft register, the certificate of deposit register, and the cashier’s check register, also note case containing notes. The minutes of the meetings of the board of directors of said bank from April 28, 1921, also financial condition of the bank, October 1, 1930, and the minutes of the meeting of the board of directors, including instructions of the Assistant Bank Commissioner, were introduced in evidence. Also what is called the liquidation report, being an inventory of the assets and liabilities of said bank, when closed, was introduced in evidence.

The liquidation report shows that on January 14, 1932, the loans and discounts of said bank on said date were $267,865.98. That the unpledged notes were $187,-175.50, that the pledged bills payable showed $41,360.48, and the pledged rediscounts $39,330.

Mr. Faught further testified that the loss would be approximately $100,000, that the legal reserve was approximately short $24,000, on the 12th day oí January. On cross-examination he stated a bank in a town of this size was required to keep 20 per cent, of deposits in cash; that quite frequently banks were below their legal reserve; that over a period of time a bank can be in strong financial condition and still have less than the legal reserve; that the condition of the reserve is not necessarily an indication of the condition of the bank.

James M. Fritz, assistant to the Bank Commissioner, testified that he investigated the books of said bank and checked all deposits received in the year 1931, and up to the closing of the bank in January, 1932, to determine what deposits were received by appellant, as indicated by his initials on deposit tickets; and that appellant had received deposits in the total amount of $144,192.67; that on January 11, the day before the bank was closed, appellant received six deposits aggregating to $400.58; that he did not find a deposit ticket with appellant’s initials on it for January 12th; that J. Fyie’s deposit was taken on January 12th, but it was not taken by appellant.

A. E. Snodgrass testified that he had about $6,000 on time deposit; that on December 31, 1931, he told appellant he would take his time deposit out and did take it out; that appellant insisted on him putting it back, saying the bank was as sound as a dollar and told him he was behind the bank with every dollar he had, for him not to fear for his money; that he also put in $436.87 that day; that in everyday business with this bank, he dealt chiefly with J. E. McConnell.

,S. H. Ellis testified that he had known J. E. McConnell for 25 years; that from the time the bank opened until it closed, he transacted business with this bank; that J. E. McConnell’s office was in the front of the bank; that in a conversation with him, a couple of weeks before it closed, appellant said: “We never have needed any money; we are all right.”

J. Fyie testified that he was doing business with the bank before it closed, had on deposit $3,864.62, and made a deposit of $500 on January 12, 1932; that he had been paid 20 per cent. In a conversation with J. E. McConnell just before the bank closed about the bank’s condition, he said that Mr. Milam and Charley and he owned the bank, and that Mr. Milam was very wealthy.

State rests. Motion made on the part of the defense to direct the jury to return a verdict of not guilty for the reason that the testimony is insufficient to warrant a conviction, which motion was overruled.

Upon the part of the defense, Harry L. McConnell, son of appellant, testified that he was teller in the bank since 1923; that his brother, C. E. McConnell, had the management of the bank during the time he worked there; that he employed the help and fixed the salaries, and his father had nothing to do with that, but once in a while his father would receive deposits. On cross-examination he said he never attended meetings of the board of directors.

Esther Richardson testified that she worked in the bank from February, 1930, until the bank was closed; that she was employed by C. E. McConnell; that she did not attend meetings of the board of directors; that as far as she knew C. E. McConnell made the loans and looked after the details of the operation of the bank.

A number of witnesses testified that they had for several years transacted business with the bank, but did not transact their business with appellant.

As a witness in his own behalf, J. E. McConnell testified that he has resided in Tillman county about 30-years, became connected with the Security State Bank in 1920, owned 10 shares of stock, and that was all he ever owned; was president since 1923. That he never at any time attempted to actively manage the bank; never passed on any of the loans, or extended any credit; never had anything to do with borrowing money from other banks; left that up to his son Charley. That he always had money on deposit in the bank. That Mr. Milam and Mr. Phillips and his son Charley came to his house that evening; they said they needed some cash and would have to have it for the next morning. That he believed the bank was solvent and told them he would put up everything he had if necessary. Then they decided that it would be best to close the bank; that the Bank Commissioner did not have anything to do with closing the bank. On cross-examination he stated, “I was in the wholesale and retail business about 16 years.” Against objection he stated he owned the bank building-, and another building on that corner, also owned the Piggly Wiggly store building, and the Basket Grocery building, and owned his home. 'That he owned 160 acres three miles east and one north of the city; owned another 160 acres; no indebtedness against this property. That his son Charley received $4,500 a year as cashier, his son Harry received $125 a month as teller, and he himself received $100 a month as president. That on April 13, 1931, he had on deposit $5,849.93, on June 16th he had $4,393.24, on August 17th $4,023.68, on September 26, 1931, $2,704.98, and had on deposit $842.58 when the bank closed. That as the owner of the bank building he received $225 per month rent and $100 a month salary, his son C. E. $400 a month, and his son Harry $125 a month. That he was o-n the board of directors since 1923, and was president during, that time. That he never told any man that his personal fortune was behind anything and didn’t remember about the telling that two rich men were stockholders, one at Chelsea, Okla., and one at Kansas City, who were at all times ready to put cash up if necessary; that he might have told some men that Mr. Milam and Mr. Hovey, owning stock in the bank, were well fixed; that his son Charley never had any money to amount to anything. That he signed all reports to the Bank Commissioner as to> the condition of the bank.

At the close of the evidence a demurrer was interposed on the ground that the evidence introduced by the state fails to prove the allegations in the information, with supplemental motion for an instructed verdict of not guilty on the following grounds: That the evidence is insufficient to prove that the Security State Bank was insolvent on January 12, 1932; that the evidence fails to prove that the defendant had knowledge that said bank was insolvent at that time, if the bank was insolvent; and that the state has failed to prove that the defendant was an active managing officer of said bank when the alleged deposit was made. Demurrer and motion overruled. Exceptions reserved.

Some objections were made and exceptions taken to rulings of the court in the admission of evidence.

Complaint is made that the court erred in admitting Exhibit 1, being the minute book of the proceedings of the board of directors and stockholders of said bank; in admitting Exhibit 37, the same being a financial statement of officers and stockholders of said bank as shown by report on file in the office of the Bank Commissioner, of date November 1, 1930, in answer to his letter, wherein the Bank Commissioner classified $40,000 of the bank’s loans slow, and $96,000 of the bank’s assets-as doubtful. And Exhibit 38, being a letter from the banking department commenting upon examiner’s report upon the condition of the bank of July 14, 1931; which report classifies $95,000 of the bank’s paper as doubtful, and classifies $27,-000 of the amount as losses, and showing the bank’s reserve was only 14 per cent. It will be observed that this examination was six months prior to the bank’s closing. Also Exhibit 39, being inventory of the entire assets and liabilities of said bank made by the bank examiner as of January 30, 1932, which exhibit contained the order of the Bank Commissioner of January 15th, closing said! bank.

Section 9176, St. 1931 (6 Okla. St. Ann. § 154), provides in part:

“Upon taking possession of the property or the assets of such bank, the commissioner shall make an inventory of the assets in duplicate; one to be filed in the office of the commissioner, one in the office of the court clerk of the county in which the said bank was doing business, and the court clerk of said county shall give such case a number on the district court docket.”

Section 337, St. 1931 (12 Okla. St. Ann. § 502), provides in part:

“The books and records required by law to be kept by any county judge, county clerk, county treasurer, register of deeds, clerk of the district court, justice of the peace, police judge or other public officers, may be received in evidence in any court.”

Under this provision the official reports and records; of the State Bank Commissioner, including reports of the bank examiner, were competent and admissible in evidence, in so far as they pertained to the issues involved, subject to explanation or impeachment. Bradshaw v. State, 18 Okla. Cr. 619, 197 Pac. 715; Hays v. State, 22 Okla. Cr. 99, 210 Pac. 728.

In the case of Hodges v. State, 38 Okla. Cr. 259, 259 Pac. 1056, 1057, it is said:

“Testimony that the hank had failed to maintain the reserve required by law tended to throw light upon the condition of the bank as being insolvent or otherwise and! tended to show the knowledge of defendants of the bank’s condition, and for this purpose was admissible. Was the bank actually insolvent at the time the deposit was received, and did defendants have knowledge of such condition? was the issue for the jury. Now, if the bank had1 failed to maintain its reserve as required by law, this was a circumstance to be taken into consideration along with the other evidence for the purpose of determining whether or not the bank was actually insolvent and whether or not the defendants knew of its condition. State v. Syverson, 39 S. D. 638, 166 N. W. 157.”

The liquidation report admitted in evidence was one of the duplicate originals filed in the office of the court clerk of Tillman county, bearing the file mark of said court clerk, under date of January S'O, 1932. The order of the Bank Commissioner closing said bank was a part of this public record, properly contained therein, and admissible as a part of said public record.

It follows that the evidence objected to was competent. The solvency of the bank could not be ascertained1 as a mere matter of addition of its assets and the subtraction of its liabilities. The bank’s solvency depended on the value of its assets, and the examination by the State Banking Department was to determine that fact. The assets were admittedly not worth their face value, and the examination by the State Banking Department following the closing of the hank was to determine what its assets were worth. The liabilities of the bank were admitted. The testimony of the liquidation agent was that he found the value of the assets to be $100,000 less than their face value, as shown by the exhibits properly admitted in evidence. Of course, this testimony and evidence was not conclusive upon the jury and other testimony on this issue was received. The evidence discloses that on the trial date, April 16,1934, the uncollected notes totaled $168,471.71, listed as realized losses.

It is insisted by learned counsel for appellant that the court erred in overruling the demurrer to the evidence and the motion for a directed verdict of not guilty.

This contention necessitated a careful examination and consideration of the records of the bank, and the evidence showing the assets and their value, the liabilities and their amounts, and what were in fact assets. Our conclusion is there was such an abundance of proof of the bank’s insolvency at the time the deposit in question was made as to be conclusive. It also conclusively appears that the bank had been insolvent for at least six months.

Section 9170, St. 1931 (6 Okla. St. Ann. § 145), reads:

“A bank shall be deemed to be insolvent, first, when the actual cash market value of its assets is insufficient to pay its liabilities; second, when it is unable to meet the demands of its creditors in the usual and customary manner; third, when it shall fail to make good its reserve as required by law.”

And section 9136, St. 1931 (6 Okla. St. Ann. § 111), defines a reserve required by banks to1 be kept, and provides that a bank that shall fail for a period of 30 days after notice from the Bank Commissioner to restore its lawful reserve, may be deemed insolvent and possession of it may be taken by the Bank Commissioner.

In the case of Appelget v. State, 33 Okla. Cr. 125, 243 Pac. 251, 252, it is said:

“Upon a consideration of the entire statute, we are of the opinion that the word ‘insolvent,’ as used in. section 4128 [section 9188, St. 1931], wherein, it is made a crime to accept or receive deposits by an insolvent bank, is that state of being insolvent which arises when the cash market value of the assets of the bank are insufficient to pay its liabilities; or where the bank is unable to' meet its obligations, liabilities, and debts, and to pay its depositors in the ordinary course of business, when given a reasonable time to procure the money for such purpose by pledging its collateral and credit to meet any temporary inability or emergency, and not the state of being insolvent set out in sections 4124 and 4135 [sections 9136 and 9170, St. 1931]. It certainly was not the legislative intent to make criminal the accepting or receiving of deposits in a bank insolvent in that technical sense in which the word is used in section 4124 [section 9136], where a bank may be deemed insolvent when it shall fail for a period of 30 days after notice to restore its reserve. Nor was it the legislative intent to make criminal the act of the officers of a bank to accept or receive deposits, where, by reason of some unexpected demand or the failure to receive expected remittance, the bank had failed to pay some liability in the usual and customary manner, as defined in the second subdivision-of section 4135 [section 9170], To conclude otherwise would lead to- absurd results. For instance, a bank might have assets worth much more than its liabilities, and yet by inadvertence or negligence have failed to> make good its reserve or have failed to procure means to meet some unexpected demand in the usual and! customary manner.”

This rule finds support in the following cases: Smith v. State, 203 Ind. 561, 181 N. E. 519, 81 A. L. R. 1154. And cases in Annotation 81 A. L. R. 1160.

In this respect the court instructed the jury as bearing upon the testimony as to the value of the assets on the date charged, as follows:

“You are instructed that a bank is insolvent at a certain date in the sense used in the information filed herein, if the assets owned by the bank were not of sufficient value to pay its debts and liabilities, or if the bank was financially unable to pay its debts and obligations as the same become due and payable.
“Now this inability to pay its debts, as herein used, does not mean a temporary inability to pay its debts, such as might occur when there is a ‘run on the bank’, or failure of the bank to have enough available cash in the bank on any particular day to run the bank for that day, or because of any other emergency but it means an inability of the bank to meet the bank’s debts and obligations and pay depositors in the ordinary course of business when given such a reasonable time to get the money as is usually and ordinarily required by a bank in conducting its business under the usual and customary way.
“And in this case now on trial, should you find beyond a reasonable doubt that on the date named in the information, at the time the deposit in question was made that the Security State Bank of Frederick, Oklahoma, did not have sufficient money and under ordinary and usual circumstances was unable to get the same by putting up its notes, collateral, credits, or other assets, in a sufficient sum to pay its debts or obligations, and its depositors as the same became due and were presented for payment in the ordinary course of its business it was insolvent in the sense used in the information; and unless yon so find, beyond a reasonable doubt, you should find said bank solvent at the time of its closing.”
“Excepted to by defendant and exception allowed.
“F. Mathews, Judge.”

This instruction was certainly as favorable as appellant could reasonably ask.

The state was required to prove not only the insolvency of the bank on the date stated, but that appellant knew the bank was insolvent. For this purpose evidence was introduced showing the relationship of appellant to the bank and his knowledge of the assets. The fact that he had signed as president the annual and semiannual reports as to the condition of the bank as shown by the exhibits introduced asi part of the records of the Bank Commissioner’s office, the letters to him from the Bank Commissioner’s office showing the findings of the bank examiner as to the bank’s condition, and testimony of his conversations with persons transacting business with the bank, as to the bank’s financial condition; the fact that for more than nine years preceding the closing of the bank its affairs were conducted by appellant and his two sons, C. E. and Harry; that the meeting of the board of directors was held at appellant’s home on the evening the bank closed its doors; and the fact that appellant in the last nine months the bank was open reduced his personal deposit in amount of more than $5,000 — all of this was competent to show appellant’s relationship to the bank and his knowledge of its financial condition.

Counsel for appellant in their brief cite the case of State v. Sanford, 317 Mo. 865, 297 S. W. 73, 78, with excerpts from the opinion, the first as follows:

“Manifestly, and in common justice, appellant was not chargeable at that time with knowledge of the financial condition of the bank as it appeared in the light of later events and subsequent investigation. His culpability in assenting to the reception of the deposit must be measured by what he knew or reasonably should have known concerning the solvency of the bank when the deposit was accepted.”

We add another excerpt from the court’s opinion:

“Here the evidence offered by appellant tended to show that he had complete confidence in the ultimate solvency of his bank. Every dollar he had, and even the home he had given to his wife, were sacrificed in an attempt to make good such confidence. Most of appellant’s fortune, whether or not it was as large as he thought it was is immaterial, was tied up with the fortunes of the bank before it was turned over to the commissioner of finance. That constituted the strongest sort of evidence of his belief in the solvency of his bank. Whether he was justified in his belief or not is beside the question. The test fixed by the statute is knowledge of insolvency or knowledge that his bank is in failing circumstances at the time he assented to the reception of the deposit. The jury had the right and duty to pass upon the question of knowledge from appellant’s point of view, as well as from other facts shown in evidence. Concededly appellant was chargeable with actual knowledge of all facts and circumstances bearing on the solvency of his bank which actually existed at the time and which he reasonably should have known. He was chargeable with such knowledge of the assets of the debtors of his bank as he reasonably should have known by use of the means of knowledge then possessed by him.”

We think that it is apparent from the record that appellant, as an officer of the'bank, was fully acquainted with the condition of the bank and knew at that time, and had known for some time, that the bank was insolvent. We think the evidence is ample not only to show the actual insolvency of the bank, but also the knowledge of appellant with reference thereto.

It is also insisted that the evidence is insufficient to show that appellant was an active managing officer of the bank.

In support of this contention the case of Witte v. State, 35 Okla. Cr. 204, 249 Pac. 968, 970, is relied on. In this case Judge Edwards in the opinion affirming the judgment' says:

“The record shows that defendant was a director of the bank at the time the note in question was taken into the assets of the bank, and that while his resignation had! been filed and accepted, it was in fact in abeyance, and he continued in the bank, assisting actively in conducting its operations until October 27. In the case of Eubank v. Bryan County State Bank, 216 F. 833, 133 C. C. A. 37, wherein section 4127, Comp. Stat. 1921 (section 270, Rev. Laws 1910), was under consideration in syllabus 1 it was held:
“ Held, that a director of a bank is an “active managing officer” within the meaning of section 270, and cannot be relieved from responsibility as such by any action of the other directors, and consequently that a loan of money made by the bank to him is illegal. * * *’
“On page 838 [of 216 F.] of said opinion (133 C. C. A. 42), we find the following language:
“ “■ * If the duties of Dunlap as one of the managers of the bank depended alone upon the fact that he was its president, it may be that the board of directors might prescribe and limit his duties, a question that need not now be determined, for section 262 of the Oklahoma statute (Rev. Laws 1910) imposes upon the directors of the bank, of which Dunlap was one, the positive duty of its management and control. His duties as one of the managers of the bank arose therefore from the fact that he was one of its directors, and not alone from the fact that he was its president; and these duties we think cannot be restricted or limited by any action of the board of directors.’
“The Supreme Court of the state, in a case growing out of the same transaction, cited in Eubank v. Bryan County State Bank, supra, in the case of Bryan County State Bank et al. v. American National Bank, etc., 56 Okla. 529, 156 Pac. 352, said:
“* * It is clear that one of the main purposes of the banking laws of the state of Oklahoma is to impose upon the officers of the bank, such as the president or director, the positive duty of its management and control and to fix upon these officers the duty and responsibility of conducting said bank in accordance with law, and this court should be slow to adopt any construction of law which would relieve these officers from their responsibility. * * *’ ”

In the case of Appelget v. State, supra, this court held:

“Where the managing officers of a bank, with knowledge that it is insolvent, permit the bank to continue to receive deposits by its employees, they are guilty of accepting and receiving deposits within the meaning of the law, although they do not personally receive the deposits.”'

And see Hudson v. State, 37 Okla. Cr. 290, 258 Pac. 352.

The evidence shows, on page 48 of minute book, a resolution of the board of directors at the regular semiannual meeting, held July 3, 1926, with the following directors present: J. E. McConnell, C. E. McConnell, Andrew H. Smith and A. L. Schrimsher:

“Motion duly carried that, whereas, it is highly desirable that the officers of this bank should, from time to time, be able to borrow sums of money on its behalf; now therefore, Resolved:
“ ‘1st. That the President, Vice-President and Cashier of this bank are, and each or either of them is, hereby authorized to borrow, from time to time, on behalf of this Bank from the First National Bank in Oklahoma City, Okla., such sums of money, for such, times and upon such terms as may to them or to> either of them seem advisable, and to execute obligations in the name of the bank for the payment of any sums so borrowed.
“ ‘2nd. That each or either of the said officers is hereby authorized to rediscount with the First National Bank in Oklahoma City, any of the bills receivable now. or hereafter held by this Bank, upon such terms and at such time or times as to him or them may seem advisable.
“ ‘3rd. That each or either of the said officers is hereby authorized to pledge any of the bonds, stocks, bills receivable or other securities or property of the bank, for the purpose of securing any moneys so borrowed, and or any such bills receivable so rediscounted, upon such terms as may to the officer pledging, the same seem advisable.
“ ‘4th.. That the foregoing powers shall continue and remain in force until express notice of their revocation has been duly given to said First National Bank, in Oklahoma City, Oklahoma.’
“Signed C. E. McConnell, secretary; J. E. McConnell, president.”

On page 73 of the minute book, the record is as. follows :

“Page 73': The annual stockholders meeting of the Security State Bank of Frederick, Oklahoma, was held; Tuesday, January 8, 1929.
“The meeting was called to order by J. E. McConnell with the following stockholders present: C. E. McConnell 243 shares, J. B. Milam, 75% shares, J. E. McConnell 19 shares; A. L. Schrimsher 5 shares, Geo. S. Hovey, 33 shares, represented by proxy in the hands of C. E. McConnell.
“The minutes of the last stockholders meeting were read and approved without any corrections or objections. The cashier presented a statement of the affairs of the bank, and a motion by Mr. J. B. Milam, seconded by Mr. A. L. Schrimsher that a vote of thanks be extended the managing officers, regarding the affairs of the bank.”

Thus it appears that appellant was more than a mere director of the bank; he was its president, and he received am annual salary of $1,200, as one of the managing officers of the bank. The foregoing resolution authorized the president and cashier, or either of them, to borrow money from time to time for the bank, as they or he deemed advisable. The stockholders recognized that there was more than one managing officer of the bank as expressed in the vote of thanks extended to the managing officers.

It appears the capital stock of the bank was $50,000, shares 500, and that appellant and his son C. E., code-fendant, were the owners of a majority of the stock, and together had control of the affairs of the bank.

Upon this record the jury were fully warranted in concluding that appellant was a managing officer of the bank.

It is sufficient to say that when a bank becomes insolvent, it should decline to receive deposits and should discontinue business.

What we have said leads to the conclusion that the court did not err in overruling the demurrer to the evidence and in refusing to direct a verdict of acquittal. The weight of the evidence and its convincing effect was for the jury, and not for the court.

Upon a careful examination of the voluminous record, and having considered the assignments of error, argued orally and in the brief, we are satisfied that no exception taken upon the trial is of any force or merit. Our conclusion is that appellant had a trial that was eminently fair and no error requiring, a reversal is shown.

The judgment appealed from is therefore affirmed.

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


author: DAVENPORT, P. J.

text:
    ERNEST HANKINS v. STATE.
    No. A-9182.
    Aug. 13, 1937.
    (71 Pac. 2d 119.)
    Finney & Cook, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error,. the defendant in the trial court, was by information charged, with Carl Pruitt, with the larceny of two mules; was tried separately, convicted, and sentenced to serve five years in the penitentiary, the record properly saved; and by case-made with petition in error attached has brought his case to this court.

The record contains over BOO pages. The substance of the testimony is that the defendant Ernest Hankins lived in and near the town of Valliant; that A. F. Calfee also lived in the neighborhood of Valliant; the defendant is a brother-in-law of A. J. Whitfield, who was the owner of a large farm and pasture lands south and west of Valli-ant, in Choctaw county, Okla.; that A. J. Whitfield moved to Sapulpa, and the defendant in this case had been supervising and looking after the farm and pasture lands; that during the year 1934 Carl Pruitt had rented the use of the pasture to graze fifty or more head of cattle jointly with the defendant’s cattle and continued to keep them on the pasture until it got so dry it was necessary for the defendant to ask Carl to get some other place for his cattle, as the grass was drying up and there was. no' more grass than would be required for the stock the defendant had in the pasture.

During the same year, and for several years prior thereto, W. B. and J. C. Birmingham, colored, had occupied and cultivated the land on the Whitfield farm. Oh the 20th day of November, 1934, A. F. Calfee missed a pair of mules and began searching for them. The Birmingham negroes claimed they knew nothing about his mules, and knew nothing about what became of them; Mr. Calfee in searching for his mules claims that on the morning of the 20th of November, 1934, the defendant in this case drove by his place and on up to the Whitfield farm which he was supervising. Some time later the record shows that W. B. and J. C. Birmingham were arrested and put in jail; that the state officers went to the jail and interviewed them and they claimed to know nothing about the mules; one of the officers struck J. C. Birmingham a time or two, and finally told the other officers to get the cuffs and a board and he would make them tell the truth about the mules. The record shows that after this, charges were filed against the defendant and Carl Pruitt charging them with the larceny of the mules. The Birmingham negroes were used as witnesses against them.

The testimony of the negroes is in substance as follows: On Tuesday morning before the mules were taken that night/ the defendant in this case came by the farm where they were living, and went with them across the field looking for some hogs, and during the time he was at the farm told one of these negroes to catch the mules that were there in the oat pasture and to take them to the gravel pit that night, designating the place they were to be taken; that it was raining, that evening, but the negroes led the mules down to the gravel pit, and claimed that just before they reached the gravel pit the defendant drove up in his car and turned his car and. went back to the gravel pit, and they delivered the mules to the gravel pit where Carl Pruitt and defendant were; that they helped load them in a pick-up and trailer and they were taken aAvay by Carl Pruitt. No one was present when the mules were taken up by the negroes/ and. no one was present at the gravel pit according to the testimony of the negroes, except the negroes, Carl Pruitt, and the defendant. In the meantime Carl Pruitt had been convicted of a crime and was serving a term in the penitentiary.

The OAvner of the mules kneAV nothing of the defendant’s connection with the larceny of the mules, and only claims to have seen the defendant on Tuesday before the mules were taken going toward the farm of his brother-in-law which he was supervising. Some of the witnesses for the state claim the defendant asked whose mules they were that were grazing along, near where he passed and mentioned the fact of their being good mules. The witness A. F. Calfee, and one or two- others, testified they went to the gravel pit and back-tracked the mules to the Whitfield farm, and testify that somewhere along between the gravel pit and the farm there had been an automobile turned and seemingly went back toward the gravel pit.

All of the testimony agrees that it rained Tuesday night and some Wednesday, and some of the testimony also shows it had been raining on Sunday night. The witness Calfee testified to the car tracks he saw between the gravel pit and stated it looked like the tracks were made by the same kind of a casing the defendant was using on his car.

The defendant denies he was at the Whitfield farm on Tuesday, the 20th of November, 1934, as stated by the other witnesses, but states he was on a FERA project near Wright City, and other witnesses corroborated his statement that he was working, on a FERA project on Tuesday, November 20, 1934, and the defendant also testified he assisted his sister-in-law in catching a bus from Valliant to Paris, Tex., the evening of the 20th, and as shown by his wife he was at home after they drove home from Valliant and did not leave their home that night.

Page after page of testimony is introduced in the record to show who worked at the FERA project, and the pay rolls of the time keeper were introduced in evidence by the state, in rebuttal, to contradict the testimony of the defendant as to- where he was working, and when he was working.

The testimony of the Birmingham negroes show the part they took in the stealing of the mules and the efforts made to connect the defendant with the larceny of the mules, which Carl Pruitt hauled away and sold. It is not deemed necessary to go into detail and state at length the testimony in full. The foregoing is the substance of the testimony, and all that it is deemed necessary to set ont to arrive at an opinion in this case.

The defendant in his petition in error has assigned 16 errors alleged to' have been committed by the trial court. The first assignment is :

“,Said court erred in overruling plaintiff in error’s motion for a new trial. To which ruling of the court the plaintiff in error saved his exceptions.”

This assignment is the only error it is deemed necessary to consider, as the motion for a new trial covers all the other errors. The defendant in his motion for a new trial urges that the verdict of the jury is not sustained by the evidence; that the court erred in overruling defendant’s demurrer to the evidence introduced; the court erred in overruling the defendant’s motion for an instructed verdict at the close of the testimony; error of the court in refusing to give defendant’s requested instructions, 1, 2, 3, and 4; that, the verdict is contrary to the law and not sustained by the evidence. And it is further urged by the defendant that the witnesses W. B. and J. C. Birmingham are not corroborated by any competent testimony showing that the defendant is guilty of any public offense.

The question to be determined by this court is: Is the testimony of the Birmingham negroes sufficiently corroborated by other witnesses to sustain a conviction of the defendant? The Birmingham witnesses admit they took the mules from the field on the Whitfield place and tied them up, and after dark and while it was raining took them to the gravel pit where Carl Pruitt was, and helped load them into a pick-up and trailer; they claim the defendant was present.

Section 3071, O. S. 1931, 22 Okla. St. Ann. § 742, is as follows:

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

The statute explicitly states what is necessary to be done in order to sustain a conviction on the testimony of accomplices. The court is of the opinion that the testimony of the witnesses W. B. and J. C. Birmingham is that of accomplices, and if this conviction is allowed to stand there must be found in this record evidence independent of those two witnesses which tends to connect the defendant with the commission of the offense. The state asserts that the evidence is sufficient. The only evidence tending to connect the defendant with this case is the evidence of the witnesses who claim to have examined the tracks between the gravel pit and the Whitfield farm and stated they looked like tracks made by the defendant’s car. It is not to be lost sight of that all the witnesses admit they did not examine these tracks until several days after the mules had been taken, and they further admit it rained on Tuesday night, the night the mules were taken, and some of the witnesses state it rained on Wednesday, which testimony, if true as to the rain, would to some extent blur or obliterate the tracks.

It is true the testimony of these witnesses as to the car tracks is such as would create a suspicion of the defendant being connected with the taking of the mules, but no more as we view it. The fact defendant was supervising the farm upon which the Birmingham negroes were living and had been cultivating the land is not sufficient to connect the defendant with the taking of the mules. It was his duty to look after the farm and he had a right to go to and from the farm at any time he chose to make the trip.

It is not sufficient corroboration to prove the crime was committed in the manner described by the accomplices. •Their testimony must be corroborated as to the particular defendant, and it is not sufficient for this purpose merely to connect the defendant with the accomplices, or other persons participating in the crime, but the evidence must tend to connect him with the crime itself, and not simply with its perpetrators, and corroborating evidence may be sufficient although of itself slight, but it is not sufficient if it merely tends to raise a suspicion of guilt.

In Cornett v. State, 42 Okla. Cr. 93, 274 Pac. 676, this court in the first paragraph of the syllabus stated:

“A conviction cannot be sustained unless there is proof of substantial'facts tending to connect the defendant with the commission of the offense aside from and without the aid of the accomplice’s testimony.”

In Wever v. State, 22 Okla. Cr. 414, 211 Pac. 1062, this court cited with approval the case of Kirk v. State, 10 Okla. Cr. 281, 135 Pac. 1156, in which it was stated:

“There cannot be a conviction unless there is proof of substantial facts tending to connect the defendant with the commission of the offense aside from and without the aid of the accomplice testimony.”

In Jolliffee v. State, 21 Okla. Cr. 278, 207 Pac. 454, the court reaffirmed the doctrine that a party cannot be convicted on uncorroborated testimony of accomplices. Citing Thompson v. State, 9 Okla. Cr. 525, 132 Pac. 695.

In Holmes et al. v. State, 52 Okla. Cr. 406, 5 Pac. (2d) 770, 771, in the body of the opinion this court said:

“In addition to the settled rule based upon the statute, that there cannot be a conviction unless there is proof of substantial facts tending to connect the defendant with the commission of the offense aside from and without the aid of the accomplice’s testimony, it also frequently has been said that it is not sufficient corroboration merely to connect the defendant with the claimed accomplice in the crime. The evidence, independent of the testimony of the accomplice, must tend to connect the defendant with the crime itself, and not simply with the perpetrator. Flynn v. State, 10 Okla. Cr. 41, 133 Pac. 1133; Kirk v. State, 10 Okla. Cr. 281, 135 Pac. 1156; McKinney v. State, 20 Okla. Cr. 134, 201 Pac. 673; Powell v. State, 21 Okla. Cr. 332, 207 Pac. 570; Wever v. State, 22 Okla. Cr. 414, 211 Par. 1062; Livingston v. State, 29 Okla. Cr. 247, 233 Pac. 235; Key v. State, 38 Okla. Cr. 169, 259 Pac. 659.”

In Rogers v. State, 57 Okla. Cr. 294, 48 Pac. (2d) 344, 346, this court in the body of the opinion stated:

“The rule of law forbidding a conviction iipon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense is, under the statute (section 3071, St. 1931), positive and peremptory.
“ ‘The corroborative evidence must of itself and without the aid of the testimony of the accomplice, tend in some degree to connect the defendant with the commission of the offense; and independent evidence merely consistent with the main story is not sufficient corroboration if it requires any part of the accomplice’s testimony to make it tend to connect the defendant with the crime.’ ”
“ ‘The corroborating evidence may be sufficient although by itself slight, but it is not sufficient if it merely tends to raise a suspicion of guilt.’ 1 Enc. of Ev. pp. 104, 105, 106, and 108, and cases cited.”

We fail to find in this record any evidence which we deem to be sufficient for the purpose of corroborating the Birmingham witnesses. True there is some evidence which would create a suspicion of the defendant’s guilt, but no more as we view it.

There are many other questions raised by the defendant and discussed in his brief, and many errors alleged to have been committed in the introduction and rejection of testimony, some of which possess merit and were prejudicial to the rights of the defendant; but the view we take of this record it is not deemed necessary to extend this opinion further by discussing each of them separately; suffice it to say that the testimony in the record is insufficient to corroborate the admitted accomplices.

For the reasons herein stated, the judgment of the trial court is reversed.

DOYLE, J., and BAREFOOT, J., concur.


text:
    Ex parte W. O. WEST.
    No. A-9341.
    Aug. 20, 1937.
    (71 Pac. 2d 129.)

      C. F. Gowdy, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for respondent.
   DOYLE, J.

The petitioner, AY. O. West, now confined in the state penitentiary, alleges that he is unlawfully imprisoned and restrained of his liberty by the warden, Jess F. Dunn.

It appears both by the petition upon which a rule to show cause issued, and by the response of the warden that the petitioner was convicted in the district court of Tulsa county, upon an information charging him with the crime of burglary in the second degree, second offense; the judgment was rendered on November 22, 1935, upon his plea of guilty, and he was sentenced to a term of five years in the penitentiary.

The petition alleges:

“That said restraint is illegal in this, that over timely objection he was forced to plead to the information charging him with second degree burglary as a second offense without first being given a preliminary examination on said charge as a second offense, and that the county attorney was unauthorized to file an information different from and alleging a different crime, or one which carried a different penalty than the one upon which petitioner was bound over to answer; that the information shows upon its face that it is void and of no effect in that it is not signed by the county attorney or by an assistant county attorney as required by section 2829, St. 1931, 22 Okla. ,St. Ann. § 303, the signature being Holly L. Anderson County Attorney by M. S. Simms, assistant, and that petitioner was not represented by counsel at the time he entered his plea.”

The Attorney General’s response on behalf of respondent and the state concludes as follows:

“For further response to the rule to show cause issued herein, respondent says that the defendant did not plead guilty as a second offender as shown by respondent’s ‘Exhibit A’, and that the second paragraph of petitioner’s ‘Exhibit O’, which was the information filed in the district court of Tulsa county, Oklahoma, upon which the above judgment and sentence in said case No'. 7441 wasi based, is mere surplusage and of no force and effect.
“For further response to the rule to show cause issued herein, respondent says that the petition and application on file herein does not state facts sufficient to warrant the release and discharge of the petitioner as prayed for therein or to show that said petitioner is entitled to be released or discharged from further retention and imprisonment in the Oklahoma state penitentiary.”

It is elementary law that in habeas corpus proceedings jurisdictional questions only are reviewable or to be considered. The writ cannot be invoked for the purpose of reviewing the acts of courts of record, where they acted within their jurisdiction, nor for the purpose of correcting irregularities or errors, or as a substitute for an appeal.

Before the writ is available as a means of release from confinement, it must appear that the court issuing! the process has acted without jurisdiction.

The information in this case was based on Penal Code, article 6, §§ 1817 and 1818, entitled, “Second Offenses,” 21 Okla. St. Ann. §§ 51, 52.

In the case of Ex parte Bailey, 60 Okla, Cr. 278, 64 Pac. (2d) 278, construing said sections, this court held:

“Habitual criminal statute, * * * does not create or define a new or independent crime, but describes circumstances wherein one found guilty of a specific crime may be more severely penalized because of his previous conviction.”

And further held:

“The allegation of previous conviction is not a distinct charge of crime, but is necessary to bring the case within the statute, and goes to the punishment only.”

When the county attorney’s name is affixed with authority to an information which is signed by his legally appointed assistant, it is a sufficient compliance with the statute. Section 2829, 22 Okla. St. Ann. § 303.

It is unquestionably the law where the petitioner is imprisoned under a judgment of conviction for crime, unless the court was without jurisdiction to render the particular judgment and the judgment is void and not merely voidable, release cannot be had by habeas corpus however numerous and gross may have been the errors committed during the trial, or in the procedings preliminary thereto. In re McNaught, 1 Okla. Cr. 528, 99 Pac. 241; Ex parte Hollingshead, 24 Okla. Cr. 131, 216 Pac. 486; Ex parte Bailey, 35 Okla. Cr. 402, 178 Pac. 701.

It appearing that the petition is insufficient to show that the petitioner is entitled to have the writ issue, the demurrer thereto is sustained, and the writ denied.

DAVENPORT, P. J., and BAREFOOT, J., concur.