text:
    JONES CANTRELL v. STATE.
    No. A-2537.
    Opinion Filed September 23, 1916.
    (159 Pac. 1092.)
    1. EVIDENCE — Reputation. It is error prejudicial to the rights of the person on trial for the court to permit evidence of the general ' reputation of such person for the commission of the same or similar crimes to the one charged. The law is that the prisoner at the bar can be tried only for the crime charged against him, and not upon his reputation for having committed other crimes.
    2. NEW TRIAL — Newly Discovered Evidence. An application for a new trial upon the ground of newly discovered evidence is addressed to the sound discretion of the court, and when a motion of this kind is made, upon a showing that strong evidence of this character has been discovered, the court should grant a new trial. The law contemplates that this discretion should be exercised in the interests of fairness and justice. A failure to properly exercise the same will warrant this court in reversing the judgment and ordering a new trial.

      Appeal from the Superior Court of Muskogee County. H.' C. Thurman, Judge.

    Jones Cantrell was convicted of violating the prohibitory law, and appeals.
    Reversed.

      Crump & Crump, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., Jor defendant in error.
   ARMSTRONG, J.

The plaintiff in error, Jones Cantrell, was convicted at the March, 1915, term of the Superior Court of Muskogee county on a charge of unlawfully conveying intoxicating liquor from one place in Muskogee county to another place therein, and his punishment fixed at a fine of Five Hundred Dollars and imprisonment in the county jail for a period of six months.

There are two assignments of error fatal to this judgment. The first is based upon the proposition that the court erroneously admitted testimony prejudicial to the rights of the plaintiff in error in this: That he permitted the sheriff of Muskogee county, J. F. Ledbetter, to testify on behalf of the state that he knew the reputation of the plaintiff in error to be that of a bootlegger. It is a doctrine as old as free government that men who are placed upon trial charged with the violation of criminal statutes are to be tried for the offense alleged against them and are not to be tried upon a reputation for having committed similar or kindred offenses. The issue in a criminal case is single, and is always based upon the question, is the defendant at the bar guilty of the offense charged against him in the information? and not has he the reputation of being guilty of similar or other offenses against the laws of this country. In Kirk et al. v. The State, 11 Okla. Cr. 203, 145 Pac. 307, we say:

It is a fundamental principle of criminal law that .the character of the defendant cannot be impeached or attacked by the state, unless he puts his character in issue by introducing evidence of good character.

Says Bishop:

'Bad character is never admissible in evidence against a defendant as ground for presuming guilt. This doctrine is absolute; thus, the evidence of stealing a horse cannot be reinforced by showing that the defendant is an associate of horse thieves.' (1 Bishop’s New Cr. Proc. par 1112.)

And we hold, the fact that an offense has been committed cannot be proved by common rumor or general repute.

It appears that the jury were instructed, over the defendants’ objection:

‘That the testimony touching the general reputation of these defendants as to being bootleggers is to be considered by you only touching the credibility of these two defendants and for no other reason or purpose.’

The question presented is whether such evidence is competent and admissible to impeach the credibility of the defendants as witnesses.

In general, it may be said that a defendant, by availing himself of the statutory privilege of becoming a witness in his own behalf, has voluntarily changed his status from defendant to witness, and consequently may be cross-examined within the usual boundaries, and thus be discredited and impeached. Buxton v. State, ante, 143 Pac. 58.

Our statute provides (section 5046, Rev. Laws 1910) that a witness may be discredited by showing on cross-examination his conviction of a criminal offense.

In the case of Hendrix v. State, 4 Okla. Cr. 611, 113 Pac. 244, it is held that:

‘For the purpose of affecting the credibility of a witness, lie may be asked as to whether or not he has ever been convicted of a violation of the prohibitory liquor law of the state.’
In the absence of any further specific provision in our Code of Criminal Procedure, .the common-law rule prevails (section 5543, Rev. Laws, 1910)_and, when it is sought to impeach a witness by general reputation, the inquiry and the answer must be as to his general character or reputation for truth and veracity in the community in which he resides. In other words, where the purpose of testimony is to impeach a witness for want of veracity, the testimony, to be competent, must be confined to witness’ ■general character or reputation for truth in the community in which he resides. To impeach him on this inquiry the testimony must show that his general reputation for truth is bad. Knode v. Williamson, 17 Wall. 586, 21 L. ED. 670.
If it were the law that everything which has a natural tendency to lead the mind towards a conclusion that a person charged with crime is guilty must be admitted in evidence against him on the trial of that charge, the argument for the state would doubtless be hard to answer; but the law is otherwise. It is the law that a defendant in a criminal case is presumed to be innocent until the contrary is proved by competent evidence beyond a reasonable doubt. Whether the law in this respect is wise or unwise, whether it accords with human reason and experience, whether it affords too great protection to the criminal, or too little to society, are not questions with which we have to do. It is not the province of the courts to change and relax the rules of evidence in order to facilitate convictions in a particular class of offenses. Until the lawmaking power intervenes and prescribes .differently, the same rules of evidence must govern the trials of defendants in this class of offenses that govern in all other criminal trials.
It follows that evidence of the general reputation of the defenadnts as to being bootleggprs was incompetent to impeach the credibility of the defendants as witnesses, or for any other purpose. Its admission was therefore prejudicial to the substantial rights of the defendants.”

The next proposition is based upon an assignment to the effect that the court erred in. overruling the motion for a new trial, based upon the ground of newly discovered evidence. The motion for a new trial sets out that the plaintiff in error, after the trial, discovered witnesses, to-wit, G. W. Brown and B. F. Hembree, whose testimony -he could not with reasonable diligence, have found before the trial. Witness Brown filed an affidavit in which he sets forth the facts concerning the charge, and says that a negro placed the grip of intoxicating liquor in the cab and told the driver to take the grip to the Frisco1 depot. That witness left town within a few days, and did not hear of the trial until after the plaintiff in error had been convicted, and upon hearing that he had been convicted, and upon learning the facts as set forth on behalf of the plaintiff in error to the effect that he got in the cab as it came up town from the M., O. & G. depot, that the grip was in the cab when he got in the same, and that he knew nothing about it. Witness recalled the facts and volunteered the information. Hembree filed an affidavit to the effect that he was on Main street the day plaintiff^in error was arrested in the cab; that plaintiff in error and one Addington was standing on the sidewalk talking when the cab came by and plaintiff in error got in same .to go up town; that he never mentioned these facts to plaintiff in error until after his conviction. The plaintiff in error, as his defense, contends that he was on Main street when he got into the cab to drive up town; that the cabman was coming from the M., O. & G. depot. He was standing on Main street, and as the cabman came by, he asked him if he was going up town, and said if he was lie would go with him. He got in the cab and was riding to town when the driver let the team run into a telephone pole, and broke some of the harness; •that the sheriff, J. F. Ledbetter was standing on the corner, and walked out to the cab, saw the grip, examined it, and found it contained whisky, and arrested the plaintiff in error. That he knew nothing about the grip, didn’t know whose it was, and didn’t know what was in it, and had nothing to do with it. The plaintiff in error, at the time of his arrest, told ithe sheriff that he did not own the whisky, and had nothing to do with the same. The motion for a new trial should have been sustained on the ground of newly discovered evidence.

For the errors' indicated, the judgment of the trial court is reversed, and the cause remanded for a new trial.

DOYLE, P. J., and BRETT, J., concur.


source: Caselaw Access Project

author: ARMSTRONG, J.

license: Public Domain

text:
    JIM CATON v. STATE.
    No. A-2653.
    Opinion Filed October 7, 1916.
    (160 Pac. 26.)
    1. APPEAL — Affirmance—Want of Prosecution. When an appeal is filed in this-court and no briefs are filed on behalf of plaintiff-in error and no appearance made for oral argument, a motion interposed by the Attorney General in open court to affirm the judgment of the trial court on the ground that the aqjpeal has not been prosecuted as in'ovided by law, will be sustained.
    2. APPEAL — Briefs—Effect of Failure to File. The members of this court are not required to brief cases and search the record diligently for defects upon which to base a criticism of the judgment of the trial court. When counsel fail to file briefs as provided by the rules of the court and also fail to appear for oral argument when causes are assigned, this court will examine the record in felony eases for fundamental error only.

      Appeal from the District Court of Murray County. Hon. F. B. Swank, Judge.

    Jim Catón was convicted of assault with intent to kill.
    Affirmed.

      T. H. Robnett, and E. W. Fagan, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for defendant in error.
   ARMSTRONG, J.

Jim Catón was convicted at the August, 1915, term ’of the district court of Murray county on a charge of assault with intent to kill and his punishment assessed at imprisonment in the state penitentiary for two years. The appeal was filed in this court on the 26th day of February, 1916. No briefs have befen filed on behalf of the plaintiff in error and no appearance was made for oral argument.

The attorney general, in open court, moved the affirmation of the judgment of the trial court on the ground that the appeal had not been prosecuted as provided by law.

When an appeal is filed in this court and no briefs filed within the time provided by the rules of the court, and no appearance made for oral argument, a motion upon the part of the attorney general to affirm the .judgment of the trial court on the ground that the appeal has been abandoned and has not been prosecuted as provided by law, is tenable.

The court is not required to brief cases and search diligently the record to see if they find some flaw upon which to base a criticism of the judgment of the trial court. If any error has been committed in (the trial court, it is the duty of counsel to file briefs pointing out the same and supporting their contention with proper arguments and authorities. If this is not done, the court will only examine the record for fundamental error and when none appears, the motion of the attorney general to affirm will be sustained.

An examination of this record discloses no fundamental errar. The motion of the attorney general to affirm the judgment of the trial court is, therefore, sustained.

The judgment is affirmed. Mandate ordered forthwith.

DOYLE, P. J., and BRETT, J., concur.


author: BRETT, J.

text:
    BORAH v. STATE.
    No. A-2261.
    (160 Pac. 27.)
    1. HOMICIDE — Evidence—Sufficiency. Where the evidence shows that a husband had virtually abandoned his wife and child, making-only occasional visits to them, and had courted and engaged himself to marry another woman, and was! arranging to marry her in September, 1913, and that on August .30, 1913, while he was on a visit to his family, the house in which they slept was burned, that he made no sort of effort to rescue the family from the flames, and refused to allow others to enter the house to rescue them, that no screams or cries for help came from the building, though the flames in the wife’s bedroom were scarcely noticeable when the first neighbors arrived, and the condition of the wife’s body showed she was dead before the body was burned, held, that these facts, in connection with other incriminating facts and circumstances, are sufficient to- sustain a verdict finding the husband guilty of murder.
    2. HOMICIDE — Evidence—Admissibility. Where the husband attempts to explain his unseemly relations with another woman, whom he was engaged to marry,' on the ground that he and his wife had for years! had a mutual agreement, that when his ehild reached the age of twelve, he should obtain a divorce, and that in anticipation of obtaining the divorce when the ehild was twelve, he courted this woman, and expected to marry her in September, held, that a letter written by the wife on August 3d, prior to her death on August 30th, which shows that she had no thought of a divorce proceeding, or even suspected that the time had come when she should surrender her place as a wife to another woman, is competent to show her frame of mind, and to rebut the husband’s statement as to the anticipated divorce.
    HOMICIDE — Evidence—Weight and Sufficiency. Where a father made no effort himself to rescue his child from a burning building, made no outcry for help, and even when a friend, at the peril of his own life, said, “By God! I am going in that building,” the father replied, “No, you can’t go in there,” and no cries from the ehild are heard, held, that the jury was warranted in believing that that child’s voice had been hushed and its form stilled before it was touched by the flames.
    CRIMINAL LAW — TRIAL—Conduct of Counsel. Counsel for the state must be fair. The state is as much interested in the vindication and acquittal of the innocent as it is in the conviction of the guilty; and nothing must be relied upon, or resorted to, to obtain a conviction, except the law and the evidence, and the ¡ reasonable deductions therefrom. But held, that the things eom-plained of in this case, as improper, do not appear in the record, and if they actually occurred, could not have prejudiced the defendant, in view of his own admissions.
    5. CRIMINAL LAW — Trial—Reception of Evidence — Order of Proof. Where the husband attempted to create the impression that his wife had committed suicide, held, that it was proper to admit in 1 rebuttal of his statements the evidence of a chemist that the stomach and lungs of the wife contained no poison.

      Error from District Court, Atoka County. Robert M. Rainey, Judge.

    W. A. Borah was convicted of murder, and brings error.
    Affirmed.

      James H. Mathers, of Ardmore, for plaintiff in error.

      R. McMillin, Asst. Atty. Gen., for-the State.
   BRETT, J.

Plaintiff in error in this case, who will be referred to as defendant, was charged and convicted of murdering his wife, and was sentenced to life imprisonment.

The facts are among the most revolting in the annals of crime.

The defendant was born in the state of Kentucky, of worthy parents, and was reared in an atmosphere which should have produced a true and noble character, and we hesitated to believe he could be guilty of the atrocities charged. But the record forces us to the conclusion that the jury made no mistake.

(1) In early manhood the defendant courted and won a young woman of his native state, whom the record shows, though mistreated and deserted by him, was true to him to the day of her death. She was the mother of his child, a little girl, and the testimony is, that this wife not only loved but “idolized him.” In 1910 he virtually abandoned her and took up his abode in Sapulpa, and had her to remain at Tishomingo in the little home he had provided for her during the days he loved her. At first he visited her and his little child about every 60 days, but as time went by his visits grew farther and farther apart, until he got to making only about two visits a year. And only a few days before her death her weary submissive soul breathed its agony in a letter to him as follows:

“My dear husband we are disappointed to tears to-day, we looked for you so hard last night, and we did not even get a letter of explanation.
“It is just one month from the 1st of Aug. before Gwendoline starts to school, then if I look wholly to her interest as I have always done, I will be tied another 9 months. Are we to stay here alone, and you home one or twice in a whole twelve months?
“Of course if you will it, we will do it, but do wish some other arrangements could be made.
“Poor 'Peter’ how he must have longed for his loved ones when he was exiled. We watch every 'auto’ & train, but still we catch no glimpse of you. Perhaps as 'Annie L/ee’ in ‘Enoch Arden’ says, we can not adjust our spyglass properly, so we wait a year? Then a month, and still you do not come. • Now won’t > you sit down this minute and write us a long letter all about your business, and come home as soon as you can leave without too great a loss.
“You never tell me anything about your affairs, but here is the way I have it studied o,ut, I do not see any profit in what you are doing more than you could make here.
“I do not think I am asking too much of you, when I ask you to come home for a while.
“With oceans of love Ellie Borah.”

This letter was written the 3d day of August, 1913, and on the 28th day of August, 1913, the husband came home. But between the time the wife penned this letter and the homecoming of the husband the record shows he received eight most affectionate letters from another woman, whom he had promised to marry in September. In fact the first of these letters, this woman sent, him a sample of the goods of which she expected to make her wedding dress. On August 10th, in a letter, she says a friend “asked me my name now, so that she could introduce me to her friends, and was surprised to hear me say, Miss Hewey. Had taken you for my husband. So many people do that, we won’t be taken for newly-weds next month.”

On August 11th she writes:

“* * * Yes, dear, we are going to be happy — life will begin • with another measure of happiness when you make me your bride. Will write you again real soon. Loving you very much I kiss you good-bye.
“Ever yours, Ethel.”
On August 15th another letter says:
“* * * A mighty nice letter came from Bartlesville.this morning — I know you have been busy, but I have been well remembered all the time. Do so hope your deal will go thru,- — not so much for our trip, but to feel we could do as we wish, but darling, deal or no deal I am expecting you about the middle of September. Know you will try your best to please me — I want you then. * * *”

On August 16th in another letter she says:

“* * * Mama is saving our chickens for the. wedding breakfast. Maybe I 'll see how much chicken I can make you eat.
“Don’t you,think I was real good to you last week; wrote you more letters than you have had in many a week. Felt you were busy and perhaps my letters would bring me nearer to you. * * *
“Dear 'twas only two weeks ago this evening since we went. up the river for supper — but it seems months ago since I ate supper with you. Would you like for me t’o take breakfast with you — just take the car and come up — how I wish you were coming — but dearest, I know you are mighty busy and am going to leave it to you to decide our next visit — maybe I could wait until you come to stay — say you come several days before our wedding — I’d make you work, but you won’t object will you—
“Loving you very tenderly and to-morrow I shall be very near you
“Ever yours, Ethel.”
On the 18th she again writes:
“* * * My special letter came about ten thirty and brought you very near me — your love seemed to fill the entire day with a certain measure of happiness (never complete with you miles away.) * * *
“Loving you more than I did when I let you go home last Sunday week and trusting every thing will go as we wish, believe me to be
“Ever yours, Ethel.”
On August 20th the last of the letter says:
“* * * Mrs. Gibson gives me a party so dearest, you see, you have a very busy girl.
“Yes, I think we could enjoy a car very much. But dear even walks are lovely with you. We seem to enjoy everything when shared with one another. Remember a walk we had one happy Christmas day? * * *
“Will tell you good bye now, with a life that is yours and love enuf for happiness. I kiss the dearest boy in the world good bye
“Lovingly yours, Ethel.”
On August 23d a letter closes:
“* * * Dearest, I am hoping you will be home Sunday. Think you can work better for having one days rest — no one expects you to be very busy that day. When you are away on Sunday I am going with you then the day won't seem so long. Darling I am wanting to make your life happy — think I can if I am near you — Loving you oh so much, accept my love and all my kisses for I am,
“All yours, Ethel.”

With these letters in his possession the husband goes through the mockery of visiting his wife, the wife of his youth, the mother of his child. About 6 o’clock on the morning of the 30th the neighbors’ attention was attracted by human groans. They saw the defendant on the porch in night garments, wringing his hands and groaning: “Oh! Oh!” Before any one reached him he turned and walked back into the house, and closed the door behind him. One after another of his neighbors arrived, but the defendant did not tell any one what the trouble was, or call upon any of them for help. Some of them rushed to the window of the wife’s bedchamber, and looking through the glass saw a fire slowly kindling near the bed. Soon the room was enveloped in flames. About that time a Mr. Wheeler came; and defendant was standing in the yard groaning. Wheeler asked him where his folks were, and the defendant.pointed toward the house and said, “I reckon they are in there.” Wheeler said, “My God Let’s see if anybody is in that house.” The defendant replied, “Do not go in there.” Wheeler said, “I am going in there;” to which the defendant replied, “No, you can’t go in there.” No one heard any screams or cries for help proceeding from the building, although the flames were scarcely noticeable when the first neighbors arrived. The voices of the wife and baby were silent. No call for help came from them, and the husband and father, though denying responsibility for their death, did not call for help for them, although he says he saw his child enveloped in flames, and admitted that he did not make any effort himself to rescue his family from the flames. The fire department was called by the neighbors, but the child was burned beyond recognition. The side on which the wife lay was badly burned, but not charred. There were no blisters upon that side, which the physicians testify shows that she was dead before the body was burned. Her mouth was open and her charred tongue was protruding from it. A neighbor asked defendant to go over to her house and put on some clothes. He went, and before dressing stated that his hands were soiled, and asked for a pan of water in which to wash them. He left his night garments on the bed in the room where he dressed, and the arresting officer 30 minutes later examined them and testified they had the smell of coal oil upon them. A five gallon can was found in the room where the wife and child were burned. After the discovery of the letters from the woman he had promised to marry, an officer visited him at the jail and asked him if he knew this woman, and he denied knowing her. Yet, on the witness stand, when confronted by these letters, he admitted his relations with her, that he received the letters from her, that he had given her a $185 diamond ring, and a $65 set of furs, and that he had expected to marry her in September. He also admitted that his affection for his wife had grown cold, that child, but that his affection for her had waned. There are many other incriminating circumstances, but these are the substantial facts upon which the jury found their verdict. And in our judgment they preclude every other reasonable hypothesis than that of the defendant’s guilt. But in addition to this we think the defendant’s own testimony condemns him.

(2) His explanation of his unseemly relations with his fiancee is, that in 1910 he and his wife mutually agreed to a separation, and that they also had an agreement that when the child was 12 years old that he should obtain a divorce; that she reached her twelfth birthday on the 14th day of July, 1913, and that relying on this agreement, which was well understood between him and his wife, and in anticipation of obtaining the divorce when the child was 12, he courted this woman, and expected to consummate that engagement by a wedding in' September. The wife’s lips were sealed, but that letter of August 3d is a more complete refutation of his statement than if she had appeared in person and denied his statement from the witness stand. No one can gather from that letter that she anticipated a divorce proceeding, or that she even suspected that the time had come when she was to surrender her place as a wife to another woman. No thought was further from her mind as she penned those words and closed that touching missive, “with oceans of love.”

The defendant complains because the court allowed this letter to be introduced in evidence, and insists that it should have been excluded on the ground that the defendant was not quite sure that he had- ever received it. But he identified the handwriting and admitted that it was penned by his wife. And whether he received it or not fit was competent to show the frame of her mind, and to rebut his statement as to the anticipated divorce. And it does rebut it as effectually as though it were a voice from the dead.

(3) Again the defendant states that on the morning of the 30th he was waked up suddenly, and heard his child cry, “Oh! papa, we are about to burn up!” that he opened the door and saw his child wrapped in flames; and he says she “seemed to fall over, and it occurred to me that my wife had committed suicide or done something awful. I was just dazed or, as the lady said a while ago, I lost my presence of mind. It was the awfullest sight I ever saw, and I never had such a feeling in my life. I saw poor little Gwendoly there in the flames.” And according to his own statement, at that time the flames did not extend over more than one-third or one-half of the room. She had an open space into which to flee. Yet he made no sort of effort to rescue the child; made no outcry for help; and even when later a friend, at the peril of his own life, said, “By God! I am going into that building,” he told him, “No, you can’t go in there.” The flames had not yet done their work. They had not yet concealed the deeds he intended they should cover. It would be but’ natural that if this father saw his child wrapped in flames that he should lose his presence of mind, but it would' be equally as natural that in his desperation he would go to the rescue, regardless of danger or death. But under the evidence the jury was justified in believing that the child’s voice had been hushed and its form stilled before it was enveloped in flames.

Defendant complains of alleged misconduct on the part of counsel for the state. But the matters complained of do not appear in the record, and no objections were made at the time.

(4) Counsel for the state must be fair. The state is as much interested in the vindication and acquittal of the innocent as it is in the conviction of the guilty, and nothing should be relied upon for conviction except the law and the evidence and the reasonable deductions from the same. While the things complained of are not properly presented for our consideration and cannot be considered, yet, even if they were before us they could not work a reversal of this case. One of the most serious complaints is, that the county attorney intimated to the jury that if a certain witness, who was sick, was present he would be able to show improper relations between the defendant and a young lady in Sapulpa. That intimation, if made, was improper; but its only effect could have been to show a motive for the commission he respected her as a good woman, and as the mother of his of the the crime charged, and surely no stronger motive was needed or could have been shown along that line than the admitted relations of the defendant and his fiancee.

(5) The defendant complains because -the state was allowed to use in rebuttal Professor Williams, of the State University, who testified that he, as a chemist, examined the stomach and lungs of Mrs. Borah, and found no traces of poison in them; the complaint being that this testimony should have been introduced by the state in its case in chief. But we think it was logically and properly offered in rebuttal of the attempted effort of the defendant to make it appear that his wife had committed suicide.

We have examined the record, including the' instructions, in this case with the care that its importance deserves, and feel that the defendant was awarded a fair trial, and that the judgment should be affirmed.

The judgment is therefore affirmed.

DOYEE, P. J., and ARMSTRONG, J., concur.


text:
    HARRIE BLAKE v. STATE.
    No. A-2267.
    Opinion Filed September 23, 1916.)
    (160 Pac. 30.)
    1. EMBEZZLEMENT — Elements—Conversion, (a) A fraudulent conversion is an essential element of the crime of embezzlement and such conversion must be shown by proof that the embezzler appropriated the money to his own personal use or that he placed it to some other use than the purpose for which it was received by him, or that he failed to account for and pay over the same on proper and lawful demand.
    (b) Proof of' a mere failure to pay over money, standing alone, will not support a judgment of conviction for embezzlement.
    2. TRIAL — Verdict Contrary to Evidence. When the proof introduced at the trial fails to establish the commission of the offense charged, the verdict of guilty and judgment rendered thereon, as a matter of law, are contrary to the evidence.

      Appeal from the District Court of Wagoner County. Hon. R. C. Allen, Judge.

    Harrie Blake was convicted of embezzlement, and appeals.
    Reversed.

      Sponsler & Graves, Owen & Stone, Simmer J. Lipscomb, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for defendant in error.
   ARMSTRONG, J.

The plaintiff in error, Harrie Blake, was convicted in the district court of Wagoner county, on a charge of embezzlement, and his punishment fixed at imprisonment in the State Penitentiary for a term of two years and a fine of One Thousand Dollars.

The indictment is a lengthy document, and no good purpose can be served by setting the same out in full. It contains, however, allegations to the effect that certain funds “were paid to and received by the said Harrie Blake for the purpose of satisfying a certain judgment in favor of the plaintiff in said action, L. W. Clapp, by virtue of his office as clerk of the district court of Wagoner county, state of Oklahoma.”

“And being then and there by virtue of his office the clerk of the district court, the proper person to receive said sum of money for the use and benefit of the judgment creditor, L. W. Clapp, and having so reseived said sum of Two Thousand One Hundred Forty-two and 63-100 Dollars, the property of and belonging to said L. W. Clapp, he, the said Harrie Blake, did in Wagoner county, state of Oklahoma, then and there unlawfully, wilfully, feloniously and fraudulently, and not in the due and lawful execution of the trust of him, the said Harrie Blake, as clerk of the district court of Wagoner county, state of Oklahoma, aforesaid, embezzle, convert and appropriate said sum of Two Thousand One Hundred Forty-two and 63-100 Dollars * * * to the use of him, the said Harrie Blake, contrary to the form of the statutes,” etc.

It appears that L. W. Clapp brought a suit in the district court of Wagoner county against C. S. Roach, et al. and recovered a judgment of $2,142.63. The allegation against the plaintiff in error is to the effect that this money was paid to him, received by him, and embezzled by him.

The testimony introduced by the state was from five witnesses: C. M. Bryant, clerk of the district court at the time of the trial; L. E. Cahill, Deputy State Examiner and Inspector; T. C. Harrill, president of a bank in Wagoner; T. H. Hammett, deputy clerk of the district court under Harrie Blake, and County Attorney C. E. Castle.

In addition, certain admissions were made and certain facts agreed upon by counsel. Witness Bryant testified that after he became clerk of the district court of Wágoner county he received about $2,100.00 through County Attorney Castle, and paid the same to the attorneys of record for L. W. Clapp in satisfaction of the judgment. He knew nothing further about the facts in the case. Fie also said that the county never lost anything by reason of the transaction. In fact, .that no one lost any money on account of the same. Witness E. E. Cahill did not testify to any incriminating fact. Witness T. C. Harrill testified to no incriminating fact. He was asked about the bank account of Harrie Blake subsequent to December 30, 1911, and said that from and after this date the account of Harrie Blake did not include any item of $2.100.00 or more. Witness Hammett testified to no incriminating fact. Witness Castle testified to no incriminating fact.

Counsel for the state and for the accused agreed upon a statement of certain facts, to-wit., that Harrie Blake received $2,142.63 in the manner as alleged in the indictment; that he was clerk of the district court of Wagoner county at the time.

Section 5327 R. D. 1910, provides:

“Where there is no execution outstanding, the clerk of the court in which the judgment was rendered may receive' the amount of the judgment and costs, and receipt therefor, with the same effect as if the same had been paid to' the sheriff on an execution; and the clerk shall be liable to be amerced in the same manner and amount as a sheriff for refusing to pay the same to the party entitled thereto, when requested, and shall also be liable on his official bond.”

This is the section of the statute which authorizes the clerk, under certain conditions, to receive money in satisfaction of judgments. There is no allegation in the information to the effect that plaintiff in error, as clerk, received this money and failed to pay the same over upon proper demand therefor.

The proof fails to show that any demand was ever made at any time upon the plaintiff in error for the payment of the money in question.

Section 2243 R. B. 1910, among other things, provides that:

“Any sheriff, coroner, clerk of a court, constáble -or other ministerial officer, and any deputy or subordinate of any ministerial officer who fraudulently appropriates to his own use or to the use of another person, or secretes with intent to appropriate to such use, any money, evidence of debt or other property entrusted to him in virtue of his office* is guilty of a felony.”

This is the statute under which the conviction in this case was had. It is contended by counsel for plaintiff in error that the judgment in this case should be reversed upon the ground that the verdict is contrary to the evidence.. The crime charged in this case was embezzlement. The only proof in the record bearing upon the question of guilt is that .the plaintiff in error received the sum of money as charged, and that his successor in office paid the judgment with funds received from the county attorney. Whether or not the same identical funds finally paid this judgment is a question upon which there is no light thrown by proof. It is fundamental that the crime of embezzlement cannot exist without there be a fraudulent conversion. The burden is on'the state to show this conversion beyond a reasonable doubt. A felonious conversion under the embezzlement statute should be proved either by proof of an appropriation of the money to the personal use of the accused; that is, that he disposed of the same for his own personal benefit and his own private business, or by putting it to some other use than a proper discharge of the trust imposed, or by proving that the accused, after obtaining lawful possession of the funds, failed to account for or to pay the same over on proper or lawful demand. There was no proof offered of either in this case. If a proper demand had been made upon the accused to pay over or account for the money in question and he had failed to do so, the law would presume a conversion. This the state not only failed to prove, but did not even attempt to prove. The county attorney in his opening statement to the jury, stated that he expected to prove these facts but wholly failed to do so. A fraudulent act of conversion is essential to the validity of a conviction under the statute. A mere failure to pay over the money will not justify the same. See Fitzgerald v. The State, 50 N. J. L. 415, 14 Atl. 746; Henderson v. The State, 105 Ala. 82, 29 So. 199.

This question is discussed at some length in the case of People v. Wyman, 102 Cal. 552, 36 Pac. 932. Among other things, the court in the discussion in that case said:

“The only other facts relied upon to sustain the verdict are: First, -that defendant neglected up to the time of his arrest, a period of 13 days, to cash the orders sent him, and to- pay for the land which his client desired to purchase from the government; and secondly, that, when arrested, he 'did not have on his person all the money which had been intrusted to him for -the purpose of making such payment, and did not offer to account for the same. These facts are, clearly insufficient to prove that defendant had fraudulently appropriated the money of the client to his own use prior to the filing of the complaint upon which he was arrested. The fact that he did not have upon his person all of the money sent to him by his client was not of itself sufficient to justify the jury in finding or believing that he had fraudulently appropriated such money to his own use before his arrest, because such fact is not necessarily inconsistent with the fact that he may still have retianed such money under his control, or subject to his order. The circumstance, to say the least, is inconclusive, affording only slight, if any, ground for suspicion, and is not strengthened by the other evidence in the case. Nor can the failure of the defendant to pay for the land prior to his arrest be regarded as a conversion by him of his client’s money, much less as evidence of the fraudulent appropriation of such money to his own use.”

In the case of Fitzgerald v. The State, cited supra, the court, among other things, said:

“When the owner of goods which have been intrusted to another seeks redress for their conversion in a civil action, he is compelled to establish the fact of conversion by proof of the exercise of some dominion over -the goods inconsistent with the right of the true owner. Proof that the owner had demanded the goods, and that the person in possession had refused to return them, is accepted as evidence of conversion; but mere neglect to return, in the absence of a demand, has never been admitted as proof of conversion. Still less will the mere neglect to pay over proceeds lawfully received prove a fraudulent conversion thereof.”

In Allen v. The State, 110 Ga. 883, 78 Am. St. Rep. 140, the Supreme Court of Georgia discussed the principle here involved, and, among other things, said:

“There can be no'question that, under the evidence, the check was delivered to the accused for the purpose of purchasing cotton seed for the oil company, and it cannot be denied that this specific check was delivered by the accused to one of his creditors and went to pay a personal debt. It must be noted, however, that it takes more than this to constitute the offense with which the accused was charged. Undoubedly, the check was technically converted from the use to which it was intended by tlie owner to have been put; but it is only when a fraudulent conversion has been made that a criminal offense is committed.”

See also State v. Hunnicutt, 34 Ark. 562; State v. O’Keen, 35 La. Ann. 901; State v. Flourney, 46 La. Ann. 1519, 16 So. 454; State v. Smith, 16 So. 938; State v. Pellerin, 43 So. 161; People v. Paige, 116 Cal. 386, 48 Pac. 326.

In this latter case the court, among other things, said:

“On May 28th defendant did not appear,'and an order was then made removing him as guardian of the said estate. 'No other order was made, and no person was appointed guardian in his place and stead, and no demand was made upon him for the moneys and goods in his possession and belonging to the said estate of Louis Litchneger.’ The minute order of removal containing the recital, ‘and it appearing to the satisfaction of the court that said Page has .appropriated to his own use the funds of the said insane person, and that he has rendered no account thereof,’ was next introduced in evidence, against the objection of defendant that it was immaterial, irrelevant, incompetent and hearsay. In January, 1896, defandant was arrested in the city of New York, and he stated at the time to .the officer arresting him, ‘that he was anxious to return to stand his trial for the offense of which he was accused.’ The above is, in substance, all the evidence introduced by the prosecution, and at the conclusion of it the defendant, by his counsel, moved the court to instruct the jury to acquit ‘upon the ground that the facts proven by the prosecution were not sufficient to establish the guilt of the defendant of embezzlement; that there was nothing in the proof to show that Mr. Page had fraudulently misappropriated any of his ward’s money or property; that no demand had ever been made upon him for the money or property of his ward; and that no person had ever been designated by any court, or by any person in authority, to whom the defendant, Mr. Page, could have delivered the money or property of his ward.’ The court overruled the motion, and thereupon the. case was submitted without further testimony. It is very evident that the recital above quoted from the order removing defendant from the position of guardian did,not constitute any evidence tending to support the charge of embezzlement. At most, it was mere heresay, and Judge Slack, who made the order and was on the stand as a witness, was no.t asked, and did not attempt to state, upon what ground the recital was based. It must, therefore, be entirely disregarded. Leaving out this recital, it will be observed that there was no evidence showing that defendant ever spent, wasted, or appropriated to his own use any of the money of his ward. It is true, he drew from the savings and loan society most of the money which was on deposit there to the credit of Lichtneger; but this was not a criminal act and did not show a criminal intent to misappropriate the money. lie may have intended to deposit the money in some other bank, or to invest it in safe securities. The cashier of the savings and loan society, who testified to the withdrawal, stated: T do not know what Mr. Page did with the money which he withdrew. He may have deposited it in some other bank or some safe deposit box.’ So faj; as appears, the defendant at the time of the trial may have still had all the money ready to be paid over on demand to any one authorized to receive it. The fact that he did not pay to the insane asylum the $475.0.0 ordered to be paid by Judge Levy does not tend to show a misappropriation of that money. He may have believed that Lichtneger was in the ‘pauper ward,’ and that the asylum was not entitled to demand pay for keeping and caring for him.
“It is urged for respondent that, while ‘the fact that a defendant does not take the witness stand on his own behalf cannot be taken against him by the jury, yet it is, in our judgment, a fact that should be taken into consideration by this court on the point of the sufficiency of the evidence to justify the verdict.’ We do not think so. A person accused of crime is presumed to be innocent until he is proved to be guilty, and facts and circumstances which cannot be considered by the trial court or the jury in determining as to the guilt or innocence of the accused cannot be resorted to in this court to support a verdict not otherwise authorized.”

In the case of People v. Royce, 106 Cal. 173, 39 Pac. 524, the Supreme Court of California, in another case involving the principle herein discussed, said:

“Thé fact that the treasurer of an association deposits a check drawn in its favor in a bank, and has the amount credited to his personal account, does not justify a conviction, in the absence of evidence of a demand by the association, or of inability to respond to a demand.”
“In the opinion delivered in department (37 Pac. 630), it is said- that ‘the errors complained of are based upon rulings .upon questions of evidence, and upon instructions to the jury,’ and as to such errors and questions we are satisfied with that opinion. But a hearing in banc was ordered on account of a grave doubt whether, under any proper view of the law, there was evidence sufficient to warrant a conviction of the crime charged; and, from further consideration of the case, we are satisfied that there was not such evidence.
“The facts shown by the evidence are these: On February 21, 1893, the appellant was treasurer of the Veterans’ Home Association, a corporation, and on that day received a certain draft for the benefit of said association for $10,350.00. On the same day he deposited said draft with the Crocker-Woolworth Nátional Bank of San Francisco, and the amount of the draft was credited to appellant’s personal account. The president of the bank testified that he ‘did not hear him (appellant) give any direction as to whose credit it should be placed,’ and that ‘we did not place it to the credit of the association because we have not had any such account on our books.’ Appellant informed the bookkeeper of the association that he had received this draft, and the amount of it was entered by the bookkeeper on his ledger of the date of February 21st. On February 24th the association received from appellant $8,310.35 of this money; and the charge against appellant is the embezzlement of the balance of said draft, amounting to about $2,050.00. What became of this balance does not appear. Appellant may have had it ready to be produced whenever called- for. The by-laws of the association required the treasurer to deposit all funds over a certain amount ‘in such bank as the board (of directors) may direct;’ but it does not appear that the board ever made such direction, or named any bank in which the deposits should be made. The by-laws also provide that all moneys in the hands of the treasurer should be turned over to his successor in office; but it does not appear that appellant ever had a successor in office. It is also provided in the by-laws that the treasurer shall make reports of moneys received and expended ‘to the association at its annual meeting,’ and, also, ‘at each quarterly meeting of the board of directors;’ but there is no evidence of any such yearly or quarterly meeting between February, 1893, and the date of the indictment, which was June 2, 1893, or that appellant failed to report said money, or made any report in which it was not mentioned. There is no evidence that any demand was ever made upon appellant for said money by the association, or by any officer or agent thereof, or by any other person. The conviction rests, therefore, solely 'upon the fact that the money was deposited with the bank on Febrúary 21st to the personal account of appellant, under the circumstances as above stated. This was evidently the theory upon which the indictment was based, for it is alleged that the embezzlement was committed on the 24th dhy of February — just three days after said deposit. It is true, as the court instructed the jury, that the crime charged might have been committed at any time before the date of the indictment; but the deposit of the money in the bank on February 21st was the only fact proven upon which the conviction could have been based. And that fact is not sufficient to support the verdict. It does not appear that he was ever called upon to apply the money to any need of the association, or to make any particular use of it, or to put it to any special place. It is true that he drew one or two checks on the Crocker-Wool-worth Bank; but it does not appear that he had not private funds there, and the testimony of the president of the bank leaves the impression that he had been keeping an account with that bank. He may have had the money all the time ready to respond to any demand of the association. In fact, there is no evidence that he did not pay it over to the association. It is clear that he did not clandestinely keep it; for he reported it to the bookkeeper. No doubt, embezzlement may be established, under certain circumstances, without proof of a demand; as where other, evidence clearly shows an appropriation by an employee of his employer’s funds with intent to do so fraudulently and feloniously. But there is no such evidence in the case at bar. It is sometimes held in civil cases that the deposit by a trustee of trust funds to his personal account is sufficient cause for charging him with interest; but such fact alone is not sufficient evidence to convict a man of a felony.
“For the reasons above given, we are of opinion that a new trial should have been given. The judgment and order are reversed, and the cause remanded for a new trial.”

In the case of State v. Weber, 31 Nev. 385, 103 Pac. 411, the Supreme Court of Nevada discussing the question here being considered, among other things, said:

“The mere depositing of the check to defendant’s personal account, especially in the fact of showing that the corporation had not' then, and never did have, a regular depository for its money, and that the treasurer of the company was not present at the time, certainly, we think, could not be held to constitute a conversion by the defendant of the money due upon the check. Before the defendant could be legally convicted of embezzlement, it must be proven beyond a reasonable doubt, that the money credited to his personal account upon the check of Captain Hooper belonged to the Doctor Mining Company, and that the defendant either applied the money so credited to him to his-own use, or to some use or purpose other than that for which the same was intrusted to him, or that he refused to deliver it to the rightful owner, upon demand. There is no showing in the evidence that the defendant applied the money, or any part of it, to his own use or to any other use whatever, or ever refused to account for the same upon demand of the Doctor Mining Company, its treasurer, or any one else, or that any demand whatever was ever made upon him. * * *
“The record contains a number of other assignments of error, but the view we have taken upon the insufficiency of the evidence makes its unnecessary to- consider them.”

The proof disclosed by this record, subjected to the test provided by law, wholly fails to warrant the conviction, and, as a matter of law, the verdict was contrary to the evidence. We know nothing of what the real facts in connection with this transaction may be, but in order to warrant a conviction, a case must be established under the proof beyond a reasonable doubt.

For the errors indicated, the judgment is reversed, and the cause remanded for a new trial.

DOYLE, P. J. and BRETT, J., concur.


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    FRED GABBERT v. THE STATE OF OKLAHOMA.
    No. A-2650.
    Opinion Filed October 7, 1916.
    (160 Pac. 33.)
    1. APPEAL — Time for Taking Proceedings. Appeals in misdemeanor cases must be filed in this court within sixty days from the date of the judgment rendered by the trial court unless that court, for good cause shown, extends the time not to exceed sixty days additional.
    2. APPEAL — Effect of Delay in Taking Appeal. The filing of an appeal in this court after the expiration of the time fixed by the orders of the trial court as limited by the statute, is fatal to the jurisdiction of this court.

      Appeal from the County Court of Garvin County. Hon. W. R. Wallace, Judge.

    Fred Gabbert was convicted of violating the prohibitory law and appealed.
    Dismissed.

      A. C. Barrett, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., and R. E. Bowling, Co. Atty., of Garvin Co., for defendant in error.
   ARMSTRONG, J.

The plaintiff in error, Fred Gabbert, was convicted at the November, 1915, term of the County Court of Garvin county, upon a charge of unlawfully conveying intoxicating liquor to a point in Garvin county, and his punishment fixed at a fine of $100.00 and imprisonment in the county jail for a term of sixty days. Judgment was pronounced on the first day of November, 1915. The appeal was file'd in this court on the 8th day of February, 1916.

The Attorney General filed a motion- to dismiss' the appeal on the ground that the same was not perfected in the time and in the manner provided by law. No answer has been filed to the motion. An examination of the record discloses the fact that the motion was well taken. It is, therefore, sustained.

It is the duty of counsel to perfect appeals from the trial court to this court within the time provided by law and the order of the court.

Appeals in misdemeanor cases must be perfected in this court within 120 days from the date of the judgment. The trial court has no power to extend the time for filing appeals beyond that period. It is uniformly held that the failure to file an appeal within the time provided by the statute and the orders of the trial court is fatal to the jurisdiction of this court and that this court is without jurisdiction to review th,e record on the merits and have jurisdiction only to dismiss the same and direct the trial court to enforce the judgment and sentence.

The appeal is dismissed. Mandate ordered forthwith.

DOYLE, P. J., and BRETT, J., concur.


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    CHOATE v. STATE.
    No. A-2208.
    Opinion Filed October 14, 1916.
    (160 Pac. 34.)
    1. SUFFICIENCY OF EVIDENCE — Corpus Delicti — Question for Jury. A conviction cannot be had upon a defendant’s extrajudicial admissions alone, • unless the state proves in some way the corpus delicti, independent of the defendant’s admission. Direct and positive proof is not essential to establish the corpus delicti, but it may be proved by circumstantial evidence. And when it is proved by circumstantial evidence, the question should 'be submitted to the jury along with the other questions of fact in the case, as to whether or not the state has established the corpus delicti beyond a reasonable doubt.
    (a) The danger which this rule is supposed to guard against is greatly exaggerated in common thought. Yet there are rare instances of morbid minds that need to be protected by this rule against their own perversity and morbid imagination.
    (b) To prove the corpus delicti is a simple matter. If a dead body is found with marks of violence upon it, or other circumstances that indicate that deceased came to his or her death by unnatural or violent means, proof of such fact, independent of defendant's confession, establishes the corpus delicti in a murder ease. And to p,rove the corpus delicti in a charge against a guardian for embezzlement it is only necessary to prove the relation of guardian and ward, that the guardian received certain funds belonging to the ward’s estate, and to show by some fact or circumstance, independent of the defendant’s admission, that he did not have the funds, or that they had been dissipated or fraudulently misappropriated.
    2. ADMISSIONS — Voluntary Character. The fact that one is brought into court by process to give his testimony by no means renders the statements made in such testimony involuntary.
    3. EMBEZZLEMENT — Criminal Liability — Defenses. A claim that one charged with embezzlement appropriated the funds, alleged to have been embezzled in good faith, believing the owner of the funds was indebted to him in the amount appropriated or more, is under our statute, no excuse or defense whatever. - And to all intents and purposes such a claim made in open court would amount to a plea of guilty.

      Error from District Court, Garvin County R. McMillan, Judge.

    J. H. Choate was convicted of embezzlement, and brings error.
    Reversed.

      Blanton & Andrews, W. H. Lasater, and Carr & Field, all of Pauls Valley, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   BRETT, J.

The defendant (plaintiff in error) in this case is a full-blood Indian, and was appointed guardian of his minor children, and was subsequently prosecuted, and convicted of embezzling $1,463.82 belonging to the estate of Phelix N. Choate, one of his wards.

(1) The defendant did not go upon the witness stand in this trial, and complains that he was convicted solely upon admissions made by him in the county court, at a hearing in the guardianship matter of Phelix N. Choate and. others, and that there was no evidence offered by the state to prove the corpus delicti before these admissions were admitted in evidence, and that these admissions could not be used in evidence against him until the state had first proved by evidence, independent of his admissions, the corpus delicti.

The letters of guardianship, the proceedings in the sale of real estate, including the order of confirmation, and the guardian’s report acknowledging receipt of the funds charged to have been embezzled were all introduced in evidence, which properly established the relation of guardian and ward, and charged the guardian with the funds alleged to have been misappropriated. But there was no evidence that he had misappropriated the money, or that he did not have the total amount in hand offered by the state before introducing in evidence his admissions at the hearing in the county court; and the fact that the funds had been misappropriated was an essential of the corpus delicti in this case. To show that the relation of guardian and ward existed, and that certain funds belonging to the ward’s estate had been received by the guardian, did not prove that a crime had been committed. And to prove that fact, or the corpus delicti of the offense charged, the state should have gone one step farther, and shown in some way, independent of the defendant’s admissions, that_ he did not have the. funds, or that they had been dissipated or fraudulently misappropriated. Direct and positive proof is not essential to establish the corpus delicti, but it may be proved by circumstantial evidence. And when it is proved by circumstantial evidence, the question should be submitted to the jury along with other questions of fact in the case as to whether or not the state has estáblished the corpus delicti beyond a reasonable doubt. But it is an old and well-established rule of law that the fact must in some way be established, independent of the 1 defendant’s admissions, that the crime has been committed, before the court will permit a conviction on the extrajudicial statement of the party charged, that he committed the crime.

(a) As stated by'Mr. Wigmore (Wigmore on Evidence, vol. 3, sec. 2070), the danger which this rule is supposed to guard against is greatly exaggerated in common thought. Yet there are rare instances of morbid minds that need to be protected by this rule against their own perversity and morbid imaginations. A notable case of this kind occurred in England in 1660 where one of two brothers confessed that he, his brother, and his mother murdered his master. They were all executed for the crime. And two years later his master returned home and explained that he had been kidnapped by the Turks. Perry’s Case, 14 How. St. Tr. 1312. Other similar, though not numerous cases, are on record. Hence appellate courts, -which not only deal with Individual cases, but must declare rules broad enough to protect the substantial rights of every citizen, even the most unfortunate, as well as society, have guarded against the recurrence oí such cases as the one above cited by requiring the state to first prove, by evidence independent of the confession, that the crime charged-has been committed, before receiving the confession of the accused that he committed it. And this works no hardship on the state; for it certainly should have some tangible evidence in hand • that a crime has been committed before it accuses one of its citizens of its commission. We might cite numerous authorities in support of this proposition, but this court is committed to the-doctrine, and it is almpst universal. Shires v. State, 2 Okla. Cr. 89, 99 Pac. 1100; Frasier v. U. S., 2 Okla. Cr. 657, 103 Pac. 373; People v. Simonsen, 107 Cal. 345, 40 Pac. 440; People v. Jones, 123 Cal. 65, 55 Pac. 698; People v. Eldridge, 3 Cal. App. 648, 86 Pac. 832; People v. Grill, 3 Cal. App. 514, 86 Pac. 613; People v. Frey, 165 Cal. 140, 131 Pac. 127; People v. Spencer, 16 Cal. App. 756, 117 Pac. 1039; Ashby v. State, 124 Tenn. 684, 139 S. W. 872; Sullivan v. State, 58 Neb. 796, 79 N. W. 721; People v. Vertrees, 169 Cal. 404, 146 Pac. 890.

(b) To prove the corpus delicti is a very simple matter. If a dead mody is fourid with marks of violence upon it, or other circumstances that indicate that deceased came to his or her death by unnatural or violent means, the proof of such fact established the corpus delicti in a murder case. And to prove the corpus delicti in the case at bar it was only necessary to prove the relation of guardian and ward, that the guardian received certain funds belonging to the ward’s estate, and to show by some fact or circumstance, independent of the defendant’s admission, that he did not have the funds, or that they had been dissipated or fraudulently misappropriated. But thjere was no evidence in this case of a demand on the defendant to pay the money into court, or to his successor as guardian, and that he did not do so. Not even a circumstance, independent of his admissions, to show that he did not have the money, or had misappropriated it, was offered in evidence by the state to establish the corpus delicti before offering the admissions made by the defendant at the hearing in the county court. And in failing to do this the state did not comply with the requirements of the law before offering these admissions.

(2) 2. The defendant next contends that the statements made by him at the hearing in the county court were obtained by force, threats, intimidations, and duress, and therefore could not be used against him. But we think this claim is without merit. He freely and voluntarily and without any objection made -these statements at this hearing in the county court. And the fact that he was brought into court by legal process to give his testimony by no means renders it involuntary. The county court had a right to inquire into and to know how he was handling his ward’s estate; and the process by which he was called into court to give this information was only a means of informing him that the court desired to inquire into the condition of the estate and his manner of handling it. And no reasonable construction can render the statements made at that hearing involuntary. Scribner v. State, 9 Okl. Cr. 465, 132 Pac. 933, Ann. Cas. 1915, 381; Faucett v. State, 10 Okla. Cr. 111, 134 Pac. 839.

(3) 3. Again it is argued that the defendant claims “he appropriated the money in good faith, believing that the ward was indebteded to him in this amount or more.” And counsel ask:

“Can any reason be given why section 2678, R. L- 1910, should not apply in a case of this character, where it is provided, ‘That in any prosecution for embezzlement it is a sufficient defense that the property was appropriated openly and avowedly, and under a claim of title preferred, in good faith, even though such claim was untenable’ ?”

Our answer to this question is that, under section 2678, Revised Raws 1910, quoted in part by defendant, such a claim amounts to no defense or excuse whatever. That section, in addition to the portion quoted by defendant, provides that:

“Upon any prosecution for embezzlement it is a sufficient defense that the property was appropriated openly and avowedly, and under a claim of title preferred in good faith even though such claim is untenable. But this provision shall not excuse the retention of the property of another, to offset or pay demand held against him.”

Consequently the excuse suggested by counsel is specifically legislated against, and declared to be “no excuse for the retention of the property of another”; and to all intents and purposes such an excuse would amount to a plea of guilt. But the defendant did not take the witness stand, or offer any such excuse, or make any such admission at the trial of this case, either in person or by counsel; if he had', such a judicial admission would have presented an entirely different situation to that disclosed by the record.

There are other errors assigned, but, as the judgment must be reversed on the ground that a conviction cannot be had upon the defendant’s admissions alone without some semblance of proof of the corpus delicti, independent of the' defendant’s admissions, we deem it unnecessary to pursue the matter further.

The judgment is reversed.

DOYLE, P. J., and ARMSTRONG, J., concur.


text:
    KRIEGER et al. v. STATE.
    No. A-2602.
    Opinion Filed October 18, 1916.
    (160 Pac. 86.)
    1. SUNDAY- — Statutory Provisions — Theory. Our Sabbath law proceeds upon the theory, entertained by most of those who' have investigated the subject, that the physical, intellectual, and moral welfare of mankind requires a periodical day of rest from labor, apd, as some particular day must be fixed, the one most naturally selected is that which is regarded as sacred by the greatest number of citizens, and which by custom is generally devoted to religious worship, or rest and recreation, as this causes the least interference with business or existing customs.
    2. SUNDAY — Observance of Other Day. Our Legislature has wisely and properly, however, refrained from interfering with or coercing the conscience of those who uniformly, conscientiously, and religiously keep another than the first day of the week as holy time, by exempting them from the penalties of the law; provided they work on the first day of the week in such a manner as not to interrupt or disturb other persons in observing the first day of the week as holy time.
    3. SUNDAY — Observance of Other Day —“Servile .Labor.” In exempting persons who uniformly and conscientiously keep another than the first day of the week as holy time from the penalties of the statute, the Legislature intended to give them a substance and not a shadow; hence we hold the term “servile labor,” as used in our Sunday statutes, to be used as synonymous with the term, “secular labor.”
    4. SUNDAY — Observance of Other Day. Courts which hold that to require Sabbatarians to keep our Sunday does not prevent them from also keeping the seventh day overlook the fact that under the divine commandment, that these people are striving to obey, it is as imperative that they work six days as that they rest on the seventh and that if their conscience compels them to rest on day, and the law also forces them to rest another, they will thus be forced to violate the first provision of the commandment they ; are consciously attempting to keep.

      Appeal from County Court, Blaine County Ed. Bdker, Judge.

    G. J. Krieger and another were convicted of violating the Sabbath law, and appeal.
    Reversed and remanded, with directions to dismiss.

      William O. Woolman, of Watonga, and Cyrus Simmons, of Knoxville, Tenn., for plaintiffs in error.

      R. McMillan, Asst. Atty. Gen., and Homer N. Boardman, of Oklahoma City, for the State.
   BRETT, J.

The plaintiffs in error in this case were prosecuted and convicted in the county court of Blaine county for violating our Sabbath or Sunday laws. It appears from the record that they were conducting a general mercantile business at Hitchcock, Okla., and exposed their merchandise for sale on Sunday; that this was done in an orderly, peaceable and quiet way. And there is no complaint that it was done in such manner as to interrupt or disturb other .persons in observing Sunday or the first day of the week as “holy time.” It also appears that plaintiffs in error are and were Seventh Day Adventists, and uniformly and religiously observed Saturday, or the seventh day of the week, as a day of rest and “holy time.”

(1-3) Counsel for both plaintiffs in error and the state have filed able and elaborate briefs. But as we view the situation, the question presents a very simple proposition, and turns on the legislative ' intent as expressed in section 2406, Revised Raws 1910. After designating the first day of the week as the Sabbath, and declaring that Sabbath breaking shall consist: First of “servile labor, except works of necessity or charity;” and second, “trades, manufactures and mechanical employments” — the Legislature then makes an exception, and in section 2406 provides that:

“It is a sufficient defense in proceedings for servile labor on the first day of'the week, to show that the accused uniformly keeps another day of the week as holy time, and does not labor upon that day, and that the labor complained of was done in such manner as not to interrupt or disturb other persons in observing the first day of the week as holy time.”

Now the question is, What did the Legislature contemplate by the term “servile labor” in this exception ? It is loosely stated by some courts that the term “servile labor” is infelicitous. But there is no such thing as “servile labor’ ’ in this country, and has not been for years; and the term is not only “infelicitous” but is obsolete and meaningless, as applied to present conditions. And if our statute should be limited to the literal meaning of the term, then neither the prohibition nor exception in the statute could apply to any class of labor existing today, either in this state or the nation. The word “servile” pertains to slaves, to those held in subjection and enslaved, and no such thing as that exists today in our nation. But our legislature certainly had in mind some existing character or class of labor to which they intended that both the prohibition and the exception should apply, and we think must have intended to use the word “servile” as synonymous with secular. It would be highly improper to strike down a statute so vital as this as meaningless, unless it should be impossible, by any reasonable construction, to. ascertain the Legislative intent. This law, as stated by an eminent jurist—

“* * * Proceeds upon the theory, entertained by most of those who have investigated the subject, that the physical, intellectual, and moral welfare of mankind requires- a periodical day of rest from labor, and, as some particular, day must be fixed, the one most naturally selected is that which is regarded' as sacred by the greatest number of citizens, and which by custom is generally devoted to religious worship, or rest and recreation, as this causes the least interference with business or existing customs.’ ’

But our Legislature, we think, wisely and properly, by the provisions of section 2406, Revised Laws, 1910, exempted any one who “uniformly keeps another day of the week as holy time, and does not labor upon that day” from the penalties of this statute;- provided, such person who uniformly and religiously keeps another day as holy time works on the first day “in such manner as not to interrupt or disturb other persons in observing, the first day of the week as holy time.” The writer of this opinion conscientiously and religiously believes that Sunday, or the first day of the week, is the day upon which all persons should rest; and is the day that should be observed as holy time by all Christians; in commemoration of the greatest fact in our religion,, the resurrection of our Lord. But I cannot, and would not if I could, make my conscience the standard of my brother. We are all fallible, and I would not assume the responsibility of forcing him to adipt my faith; for, should I be wrong, my responsibility would then be doubled. And the legislature intended to1 refrain from interfering with or coercing the conscience of those who uniformly and conscientiously keep another day than the first day of the week as holy time, by the provisions of section 2406. And we think this is in harmony with the spirit and genius of our government. And when our legislators exempted persons who uniformly, conscientiously, and religiously keep another clay from the penalties of the statute, they intended to give them a substance and not a shadow. Hence we think the legislature intended to use the word “servile” as synonymous with “secular." And in this we are sustained by Gladwin v. Lewis, 6 Conn. 49, 16 Am. Dec. 33. But even without a precedent, we think, no other construction could give vitality to the real legislative intent.

(4) But it is facetiously argued by some courts that to say to these people they shall keep our Sunday does not prevent them from also keeping the day they regard as “holy day.” But these courts overlook the fact that under the divine commandment these people are striving to obey it is just as imperative that they work six days as it is that they rest on the seventh. And if their conscience compels them to rest one day, and the law forces them to also rest another, they would thus be forced to violate the first provision of the commandment they are attempting conscientiously to keep.

For these reasons, and others that might be added, we think the judgment should be reversed.

The judgment is therefore reversed, and the cause remanded, with directions to dismiss the case.

DOYLE, P. J., and ARMSTRONG, J., concur.


text:
    TOM TINSLEY v. STATE OF OKLAHOMA.
    No. A-2616.
    Opinion Filed October 21, 1916.
    (160 Pac. 331.)
    APPEAR — Review—Questions of Fact. When a plea of former jeopardy is interposed and counsel elect to submit the question to the jury rather than insisting upon a determination of the proposition of law by the court, the finding of the jury will not be disturbed' on appeal.

      Appeal from the County Court of Craig County Hon. B. M. Probasco, Judge.

    Tom Tinsley was convicted of violating the prohibitory law and appeals.
    Affirmed.

      Clyde McGary, for plaintiff in error.

      R. McMillan, Asst. Atty Gen., for defendant in error.
   ARMSTRONG, J.

The plaintiff in error, Tom Tinsley, was convicted at the October, 1915, term of the county court of Craig county, on a charge of violating the prohibitory law, and his punishment fixed at imprisonment in the county jail for thirty days and a fine of $50.00.

There is only one assignment of error briefed and argued in this case. This assignment is based upon a plea of former jeopardy.

It is the contention of counsel that the plaintiff in error had been tried and acquitted upon an information alleging a sale, in practically the same language as the information in the case at bar. The record shows, however, that counsel chose to make this a question of fact for the jury and introduced his proof accordingly and relied upon the jury to exonerate his client rather than for the court to determine the same as a proposition of law.

After counsel for plaintiff in error introduced his evidence upon this proposition, the State was permitted to introduce evidence in rebuttal. The issue was fairly submitted to the jury under the facts disclosed. The jury found against the contention of plaintiff in error and this court will not disturb the finding. If counsel had elected to stand on his plea as a proposition of law for the determination of the court, he would have been in a different attitude here, but having elected to make the issue one of fact and law combined to be submitted to the jury, he is bound by their decision when there is evidence tending to support the finding. ’ In this case there is ample evidence.

The judgment is affirmed.

DOYLE, P. J., and BRETT, J., concur.


text:
    GALBERT v. STATE.
    No. A-2264.
    Opinion Filed October 21, 1916.
    (160 Pac. 332.)
    1. HOMICIDE — Evidence—Sufficiency. In a conviction for murder, where eyewitnesses testified that they saw the defendant shooting at the deceased, coupled with the fact that immediately after the shooting a revolver was taken from the defendant with five empty , shells in it, the exact number of shots fired, the verdict will not be disturbed on the ground that it is not sustained by the evidence.
    2. TRIAL — Preliminary Proceedings' — Service of List of Witnesses. A defendant in a murder case should know before he announces ready for trial whether or not he has been misled by a nickname or other cognomen ascribed to a witness in the list of witnesses served on him in conformity to the constitutional requirement, and whether or not from the list he understands what their post office address is; and if he announces ready for trial without objecting to any inaccuracy or defects in regard to these matters, he waives such defects, and an objection to such matters made after the ease has gone to trial comes too late.

      Error from District Court, Pontotoc County. Tom D. McKeown, Judge.

    Raize Galbert was convicted of murder, sentenced to life imprisonment, and brings error.
    Affirmed.

      C. C. Williams, of Ada, for plaintiff in error.

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

In this case the plaintiff in error, who will be referred to as defendant, was tried and convicted of murder and sentenced to life imprisonment.

(1) 1. He complains, first, that the verdict of the jury is not sustained by the evidence.

The deceased, Haywood Armstrong, was killed at a church entertainment at Maxwell, Pontotoc county. And the evidence on behalf of the state shows the deceased closed a stove door that a boy by the name of Rado Gillespie had opened. Gillespie told deceased to leave the door alone, and opened it again. To this deceased replied that the stove was smoking, and would fill the house with smoke, and that he (Gillespie) should not do that way, and in reply to this Gillespie began to curse deceased; whereupon deceased started toward the door, as though he intended to leave the house. The' defendant, Galbert, called to him before he reached the door, and as he turned around, several eyewitnesses testify, without warning, or any demonstration on the part of the deceased, the defendant began shooting at him. Five shots were fired, some of which inflicted minor wounds, but two entered the body of deceased and produced almost instantaneous death. Immediately after the difficulty the father of defendant took a pistol from him containing five empty shells, and also took a pistol from Gillespie containing five loaded shells, one of which had been snapped.

The defendant denied shooting deceased, and claimed that his pistol was empty when he went to the entertainment, and that he emptied it in the afternoon shooting a bush near his home, and never reloaded it, but says that he missed the bush he shot at; hence it bears no mute evidence in his behalf. But he was corroborated by his mother and sister to the effect that he did fire five shots in the afternoon near the house. But under the testimony of eyewitnesses that they saw the defendant shoot at the deceased, coupled with the fact that defendant’s father, immediately after the shooting, took a revolver from him with five empty shells in it, which was the exact number of shots fired, and that the revolver of the Gillespie boy, which was taken from him at the same time, had not been discharged, but only snapped once, we could not think of disturbing the verdict in this case on the ground that it is not sustained by the evidence.

(2) 2. The only other matter defendant complains of is that among the names of the witnesses served on him, under the constitutional requirement, the only cognomen ascribed to one witness was “Rev. Walker,” and, further, that the post office address of the first witness was given at Maxwell, Okla., and instead of writing the words, “Maxwell, Okla.,” after each successive name, that only ditto marks appeared under the words “Maxwell,” and “Oklahoma” opposite the names of all the other witnesses, and contends that this was a serious infringement upon his constitutional rights. But the purpose of the constitutional provision that “in capital cases, at least two days before a case is called for trial, the defendant shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations in the indictment or information, together with their post office addresses,” is to apprise the defendant who the witnesses are and where they may be found, and thus enable him to investigate their character, learn what their testimony will be, and take whatever steps he may desire to offset or rebut their evidence; and if the defendant in this case had not been able to locate the witness Walker by the cognomen given, or did not understand what these ditto marks meant, and had been mislead by reason of their use, he should have made his troubles known to the court before announcing ready for trial. But he did not do this. He answered ready for trial, and waited until Rev. Walker was called upon the witness stand, and then objected to his testifying on the grounds above set out. But the objection came too late. He should have known before announcing ready for trial whether or not he had been misled by these ditto marks and the cognomen of Walker. He does not contend, or even intimate, that there was more than one Rev. Walker in the community, and that he had investigated the character of one Rev. Walker and talked to him, and that the Rev. Walker produced as a witness was another and different person to the one he had talked with, and ' whose character he had investigated. And under these conditions the defendant waived any right he might have had to require the state to furnish him more definite information as to the name of this witness, and his post office address; and the court properly overruled his objection. This proposition is thoroughly discussed and settled in State v. Frisbee, 8 Okla. Cr. 406, 127 Pac. 1091; Franklin v. State, 9 Okla. Cr. 178, 131 Pac. 183, and Walker v. State, 10 Okla. Cr. 533, 139 Pac. 711.

In Walker v. State, supra, the Christian name of one witness' was omitted, in the list of witnesses served on the defendant; but the surname of that witness was given in the list with his post office address. ‘ There was no objection on the part of the defendant to the list served on him before going to trial, and no showing was made that he had been misled or prejudiced by the omission of the .Christian name of this witness. And in that case the court held:

“* * * That where it affirmatively appears that the defendant has not been misled to his prejudice by the omission of the given name of a witness, whose surname and post office address appeared upon the list furnished to the defendant, he is not entitled to a reversal because the testimony of such witness has been received.”

There appearing to be no prejudicial error, the judgment is affirmed.

DOYLE, P. J., and ARMSTRONG, J., concur.


author: DOYLE, P. J.

text:
      Ex Parte Dave Myers.

    No. A-2215.
    Opinion Filed November 20, 1916.
    (160 Pac. 939.)
    FORMER “JEOPARDY” — Second Judgment., The constitutional provision, ‘ ‘ nor shall any person be twice put in jeopardy of life "or liberty for the same offense,” Section 21, Bill of Rights, and the common law principle therein declared is broad enough to mean that no one can be twice lawfully punished for the same offense. Hence, when a court has pronounced a judgment and sentence upon the verdict of a jury, and such judgment has been carried into execution, tEe power of the court as to that offense is at an end, and the court is without jurisdiction to render a second judgment and sentence upon the same charge.
    Application of Dave Myers for writ of habeas corpus.

    Petitioner discharged.

      W. P. Harn, for petitioner.

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

On March 18, 1914, there was filed in this court a petition duly verified, praying that a writ of Habeas Corpus issue to M. C. Binion, Sheriff of Oklahoma County.

The petition in substance avers that on the 29th day of December, 1913, in the superior court of Oklahoma County, the petitioner was sentenced in accordance with the verdict of a jury to be confined for thirty days in the county jail and to pay a fine of five hundred dollars; for the offense of “bartering, selling and otherwise furnishing intoxicating liquors,” that petitioner was on that day committed and since has been confined in the county jail, and that he is now illegally imprisoned and has been unlawfully restrained of his liberty since the 28th day of January, 1914, at which time the confinement part of said sentence had been fully executed and satisfied. That on the 16th day of March, 1914, he filed his petition for a writ of Habeas Corpus, in the district court of Oklahoma County, whereupon the county attorney of Oklahoma County gave oral notice that an application would be made to the superior court aforesaid to amend the judgment and sentence of said court on which said petitioner stands committed: and on said day the judge of the superior court of Oklahoma County at Chambers caused to be entered a new judgment and sentence for the offense of “keeping a place with the intention and for the purpose of violating the prohibitory law,” and which judgment concludes as follows:

“It is further ordered, adjudged and decreed by the court that at the expiration of said thirty days, if the said fine of five hundred dollars and costs are not paid, that he be imprisoned until the fine and costs are satisfied, and that the said fine and costs be satisfied and liquidated by imprisonment in the county jail at the rate of one day for each two dollars of said fine and costs.”

That thereupon his application for the writ was denied by the district court of Oklahoma County.

It is further averred that the judge of the superior court had no power to modify the judgment after the term of court at which the judgment was rendered had expired, and after the defendant had served the term of confinement fixed by the original judgment and sentence of the court.

To the petition the respondent interposed a demurrer.

Upon the consideration of the demurrer, it is the judgment of this court that the same should be overruled as not well taken. It appears from the petition and it is not traversed that the original judgment and sentence of imprisonment had been fully executed and satisfied before the court attempted to modify the judgment so as to include further imprisonment in case of default of the payment of the fine and costs.

The question presented has been fully considered and answered by this court in the case of Rupert v. The State, 9th Okla. Cr. 226, 131 Pac. 713; 45 L. R. A. (N. S.) 60. The language of that opinion is as follows:

“The general power of a court to reconsider its judgment and sentence and reverse, vacate, or modify it at any time during the term in which it was rendered, or to increase or diminish the sentence which it has imposed, where the original sentence has not been executed or put into operation, is undeniable. Bish. New Crim. Proc. sec. 1288, and cases cited. This power is inherent in all courts of record. However^ it would seem there must, in the nature of the power thus exercised by the court, be in criminal cases some limit to it. It is clear that a court cannot pass two sentences for the same offense, to be enforced at the same time. And the validity of a second judgment and sentence must be because the first judgment and sentence is legally annulled or revoked and made void.

That no person shall be twice put in jeopardy for the same-offense is a universally accepted principle of the common law, and this principle has been embodied in the federal Constitution and in all state constitutions, and it is incorporated in the Constitution of the state of Oklahoma by express provision, as follows:

“Nor shall any person be twice put in jeopardy of life or liberty for the same offense.” (Sec. 21, Bill of Rights.)
“Jeopardy, in its constitutional or common-law sense, has a strict application to criminal prosecutions only. The word “jeopardy,” as used in the constitution, signifies the danger of conviction and punishment which the defendant in a criminal prosecution incurs when put upon trial before a court of competent jurisdiction under a valid indictment, information, or complaint, and in this use it is applied only to strictly criminal prosecutions. Stout v. State, 36 Okla. 744, 130 Pac. 553, 45 L. R. A. (N. S.) 884.
“ ‘A person is not in legal jeopardy until put upon trial before a court of competent jurisdiction under an information or indictment sufficient in form and substance to sustain a conviction.’ Cooley, Const. Lim. (7th Ed.) 467, and cases cited.)
“We think this provision of the Bill of Rights, and the principle therein declared, is broad enough to mean that no person can be twice lawfully punished for the same offense. The one follows from the other, and this constitutional provision is designed and intended to protect the accused from a double punishment as much as to protect him from two trials. For this 'reason we think that where a judgment and sentence has been executed and satisfied that ends the prosecution, exhausts the power of the court, and terminates its jurisdiction, and the court is without power or jurisdiction to render another judgment and sentence in the case.
“The leading case upon this question is Ex parte Lange, 18 Wall. 163, 21 E. Ed. 872. In that case the defendant was convicted of appropriating mail bags,'of the value of less than $25, the punishment for which offense, as provided by statute, was imprisonment for not more than one year or a fine of not less than $10 or more than $200. The sentence was one year’s imprisonment and $200 fine. The defendant was committed in pursuance of the sentence and paid the fine the day after his commitment. On the second day after his commitment he was brought by Habeas Corpus before the same judge who sentenced him, who vacated the former judgment and sentenced the defendant anew to one year’s imprisonment. The case came before the supreme court of the United States on Habeas Corpus, and the defendant was discharged, on the ground that, where a statute imposes as a punishment a fine or imprisonment, and the court has both fined and imprisoned the defendant, who thereupon pays the fine, the court has no power, even during the same term, to modify the judgment by imposing imprisonment instead of the former sentence. One of the alternative requirements of the statute having been satisfied, the power of the court as to the offense was at an end.”

Our procedure criminal provides that:

“A judgment that the defendant be imprisoned and pay a fine and costs may also direct that at the end of the prison sentence he be -imprisoned until the fine and costs are satisfied, specifying the extent of the imprisonment, which cannot exceed one day for every two dollars of the fine and costs.” (Se'c. 5958 Rev. Taws.)

Therefore, after the execution of the thirty days sentence the defendant could not be legally held until the fine and the costs were satisfied as by law provided, for the reason that the judgment and sentence rendered against the defendant on the 29th day of December, 1913, and set forth in the commitment on which he was being held did not direct that in default of the payment of the fine and costs that he be further confined until such fine and costs are satisfied as by law provided, and the trial court was without jurisdiction to render a second judgment and sentence upon the same charge or correct the original judgment after such judgment had been executed, as in this respect the power of the court must be exercised when the original judgment is rendered. It follows that the second judgment and sentence was illegal and void.

The petitioner' having been enlarged on bail pending the determination of this cause, said bond is discharged.

ARMSTRONG and BRETT, J. J., concur.