author: DAVENPORT, P. J.

text:
    JOHN CALLOWAY v. STATE.
    No. A-9126.
    Jan. 27, 1937.
    (64 Pac. [2d] 935.)

      Louie Gossett and F. L. Welch, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The parties in this opinion will be referred to as they appeared in the trial court. The defendant, John Calloway, was by information charged with forgery in the second degree, the act having been committed by the raising of a check from $8 to $18, and passing the same on Homer McFatridge. He was tried, convicted, and sentenced to serve a term of two years in the state penitentiary.

The evidence on behalf of the state is in substance as follows: Ed M. Taylor stated:

“I live a mile east of Antlers, engaged in farming and stock raising; I bought a yearling from Clyde Maynard, on the 11th day of April, 1935, giving him my check for $8.” The check alleged to have been raised was ex-liibited to the witness, and examined, and witness stated, '“I gave this check to Clyde Maynard; it has been raised from $8 to $18, the letters ‘een’ added after the word ‘eight’ and the figure ‘1’ placed before the figure ‘8’ in said check. When I received the check from the bank a month later I found it had been raised $10. I went to Mr. Maynard to see him about the check, and from there to see John Calloway. When I met Mr. Calloway he asked to see the check, and looked it over several times, and placed it against the side of the truck and started with his finger rubbing out his signature; I recovered the paid check, and turned it over to the county attorney.”

On cross-examination witness admitted he had known the defendant many years, and had many dealings with him, and he had never raised a check on him before. Witness further stated the check had the indorsement of Clyde Maynard, John Calloway, and Homer McFatridge on it when it was received from the bank.

Clyde Maynard testified:

“Ed M. Taylor gave me the check; it was for $8; when I passed the check I indorsed my name on the back of it; T spent the check at John Calloway’s, store where 1 bought a sack of meal, John Calloway giving me back $7.35, the sack of meal costing 65 cents.” Maynard further stated, “When I signed the check left in his hands it was made out for only $8.”

Homer McFatridge, testifying for the state, stated:

“I live at Antlers; I am in the oil business, wholesale agent for the Continental Oil Company; I sell gasoline and motor oils to filling stations and country stores; I know John Calloway; last April I had business dealings with him.” Witness examined State Exhibit A, which is the check alleged to have been forged by raising it from $8 to $18, and stated, “I handled the check as my signature is on it. The amount of the check when I got it was $18, and I deposited it in the bank.” Witness then exhibited, a deposit slip showing that on April 15, 1935, he made a deposit and among other items was the $18 check the slip showed he had received from the defendant, John Calloway.

Garland Hamby, testifying for the state, stated: “I work for Homer McFatridge of the Continental Oil Company.” Witness examined state’s exhibit C, which showed an invoice of 50 gallons of bronze, 50 gallons of white gas, and 20 gallons of kerosene, and stated he delivered the gasoline and kerosene mentioned in the invoice to the defendant, John Calloway. Witness was then handed state exhibit A, and states the names on the check, and stated further he at no time altered or changed it in any manner.

Tom Wilkins, another witness for the state, stated he lives east of Rattan, and was acquainted with John Calloway, and also' Ed Taylor. John Calloway came to him and requested him to talk to Ed Taylor for him, that Ed was sore at him, and that he wanted a check that had been turned over to Buck Smith, the county attorney, for an investigation. Witness admitted on cross-examination that John Calloway’s reputation was good.

A. E. Templeton, testifying for the defendant, stated he heard a conversation between Taylor and the defendant about the check; that Calloway got the check away from Taylor and erased or attempted to erase or rub' out something on the check by placing it up against the side of the truck.

G. M. Stallings testified, “I live at Rattan, and have 'been deputy sheriff in the community where Clyde Maynard lives; I know Ed Taylor.”

John Calloway, the defendant, testified on his own behalf and stated, “I have lived at Rattan for 17 years and for 11 years ran the post office; I know Clyde Maynard and Ed Taylor; I had a conversation with Taylor but I did not try to erase my name from the check.”' Defendant further stated Ed Taylor traded with him andl he had several of Ed’s checks before the one in question. “I admit I handled the check introduced as state exhibit A. I have no particular independent recollection of the amount of the check. I do not know who raised it if it had been raised.” The defendant then stated witness Maynard was offended at him about a letter that left his place, and had quit trading with him. The defendant admitted he had a conversation with Maynard; he stated he had never been convicted of anything, and that he wished the people would let him alone; that it was a bunch of his enemies after him trying to get him into trouble, and absolutely denied he had anything to do with the raising of the check or passing it after it was raised.

A number of witnesses testified for the defendant, and stated that up to the time of his accusation his reputation in the community was good. Over the objection of the defendant the court permitted a witness, Bill Gardner, in rebuttal to testify he was a deputy sheriff in 1929 and 1980, and had an occasion to arrest the defendant John Calloway on a charge of larceny of domestic animals.

The foregoing, is the substance of the testimony.

The defendant in his petition in error has assigned eleven errors alleged to have been committed by the trial court. The first question this court will consider is the tenth assignment of error, which is:

“Said court erred as a matter of law during the trial of said cause in permitting the county attorney to repeatedly question witnesses and answers to be given with reference to the guilt of the plaintiff in error of the offenses of arson, cattle stealing- and drunkenness, and as to charges and accusations against plaintiff in error of these offenses, over the continued and repeated objections of the plaintiff in error,, all to the great prejudice of the substantial rights of the plaintiff in error; that on account of the said matters the court should have arrested the judgment of conviction herein, sustained the motion for a new trial or declared a. mis-trial of said cause.”

The defendant, in presenting his argument on this assignment, states that the testimony admitted was immaterial and improperly admitted. The testimony complained of is as follows (Ed Taylor, a witness for the state, examined by the county attorney) :

“Q. Where was that that John came along? A. Between Rattan and the little store over there, I don’t know what they call it, Miller’s Store. He passed me and I waved him down and I showed him this check. He flew mad and he said he had been accused of burning houses and stealing cattle but never had been convicted. By Mr. Gossett: We object as not being responsive to the question. By the Court: Overruled. By Mr. Gossett: Exceptions. By the County Attorney: Q. What did he say? A. He said he had been accused of stealing cattle and burning houses but he never had been convicted.”

On redirect testimony of Clyde Maynard, state witness, the following, questions were propounded:

“County Attorney: Q. When you met John Calloway, you and Mr. Taylor, and asked him, you mentioned somebody being about half sore. Did John Calloway get sore? A. Yes, sir. Q. Do you remember any statement he made? A. He said, ‘Do you say I raised the check?’ I said, ‘I don’t know whether you raised it or not but it was damn sure raised after you got it.’ Q. Was anything said about that? A. He said he had been accused of stealing cows and burning buildings but never had been convicted yet, and said he would go to the penitentiary 99 years before he would give Ed Taylor’s money back. By Mr. Gossett: We move that that be stricken as incompetent, irrelevant and immaterial. Such statements, if your Honor pleáse, are prejudicial. (At this time counsel confer with the court out of the hearing of the jury and the court reporter. ) Mr. Smith: Q. What did you say Mr. Calloway said in reference to that, I didn’t quite understand you? A. He said he had been accused of— By Mr. Gossett: We object to that. A. ■ — of stealing and everything. By the Court: Overruled. By Mr. Gossett: Exception. A. He had been accused of cattle stealing and burning buildings and most everything but never had been convicted yet. He said he would go to the penitentiary 99 years before he would give Ed Taylor his $10.00 back. By Mr. Welch: We move that it be stricken as prejudicial. By the Court: Overruled. By Mr. Welch: Exceptions.”

The witness Tom Wilkins, on redirect examination, was asked the following, questions by the county attorney:

“Q. I will ask you if you ever hear immor of anything in the community about him violating the law? A. Nothing but this check is all I ever heard. Q. Never did hear anything else? A. No, sir. Q. Now, do you recall— A. Not ever been arrested. Q. Did you ever hear rumor of any talk in the community about him being connected with any cattle stealing? A. There was some talle about that. (Objection — Overruled—Exception.) Q. Don’t you know it to be a fact that he was arrested for stealing cattle with Cecil Harris? A. I don’t think he was arrested. (Objection — Overruled—Exception.) Q. If it should develop in this case that Mr. Calloway was arrested and brought to trial here, charged with Cecil Harris, if that should develop that you are mistaken? A. I know they were trying to implicate him but if he was arrested I don’t remember it. Q. Do you remember anything about any building being burned in which he was implicated and released? A. There was some talk, yes, sir. Q. Did you ever see him drunk? A. No. Q. You would swear to the jury that you never saw him drunk? (Objection — Overruled—Exception.) Q. If it should develop that he has been charged with theft, of cattle down there and that had been rumored around and talked, and that should be true, then you still say his reputation is good? 4. Yes, sir. * * * * Q. Do you remember some talk about a building being burned that he was accused of burning? A. Carl Cooper’s store. Q. That is his competitor? A. Yes, sir. Q. Explain to the jury if you remember what you heard in your community about the cow stealing case? A. I don’t recollect just about that cow case. I know there was a lot of talk at that time about the cattle being stolen and John being implicated. Q. They were supposed to have been trucked out of that community, wasn’t they? A. Yes, sir. Q. And you still say in spite of all that talk that went through the community, that he still bore a good reputation in the community? A. Yes, sir.”

Over the objection of the defendant, the court permitted Bill Gardner, a witness for the state, to testify as follows:

“I was deputy sheriff during 1929 and 1930. Q. I will ask if you had occasion to arrest John Calloway? Mr. Gossett: We object to that. John Calloway admitted it. The Court: Overruled. Mr. Gossett: Exceptions. A. Yes, sir. Q. Tell the jury what for? A. Larceny of domestic animals. Mr. Welch: We object to that as incompetent, irrelevant, immaterial and prejudicial. The Court: Overruled. Mr. Welch: Exceptions.”

The defendant insists that the foregoing testimony offered by the trial court, over his objections, and to which exceptions were saved, and the repeated propounding of questions and soliciting testimony which was prejudicial to the rights of the defendant, was prejudicial to the rights of the defendant, and deprived him of securing a fair and impartial trial. Counsel have no right to inquire of a witness whether or not he has been arrested upon a criminal charge. A witness can only be asked for the purpose of affecting his credibility if he has been convicted of a crime. Corliss v. State, 12 Okla. Cr. 526, 159 Pac. 1015.

For the purpose of affecting the credibility of a defendant as a witness it is prejudicial error for the court to require the defendant to answer on cross-examination as to his having been charged with other offenses. Byars v. State, 15 Okla. Cr. 308, 176 Pac. 253.

This court has repeatedly held that for the purpose of affecting the credibility of a witness he may be asked; on cross-examination if he has been convicted of a felony or of any crime which involves moral turpitude. But it is prejudicial error to ask such witness if he has been indicted, arrested, or imprisoned for a misdemeanor, or if he has been charged, arrested, or imprisoned, before conviction, of any offense whatever. Nelson v. State, 3 Okla. Cr. 468, 106 Pac. 467.

In Nelson v. State, supra, the holding of the court has been followed and approved in the following cases: Crawford v. Ferguson, 5 Okla. Cr. 377, 115 Pac. 278, 45 L. R. A. (N.S.) 519; Keys v. United States, 2 Okla. Cr. 647, 103 Pac. 874; Smith v. State, 14 Okla. Cr. 348, 171 Pac. 341.

In Jones v. State, 20 Okla. Cr. 154, 201 Pac. 664, 665, in the fourth paragraph of the syllabus this court said:

“Unless the defendant himself puts his good character in issue, it is not admissible, on cross-examination of the defendant, to interrogate him as to the commission of other particular crimes or offenses not connected with the crime for which he is being tried. If the good character of the defendant is made an issue by the defendant, it may be impeached only by showing that his general reputation was bad, and not by evidence of particular acts.”'

The testimony complained of by the defendant does not relate to the general reputation, but relates to specific acts of the defendant not material to or in any way connected with the crime for which he was on trial, and it is perfectly clear from the holding of this court, and other courts, that the testimony complained of by the defendant was prejudicial to his rights, and the court, in admitting the same over his objections, committed a reversible error.

Several errors have been assigned and argued by the defendant, but in the view we take of this record the error herein discussed is the only error necessary to consider. The admission of the testimony, over the objection of the defendant, that the defendant had been arrested for different crimes not connected with the crime for which he was on trial, is reversible error. The defendant was not accorded a fair and impartial trial as guaranteed to him by the Constitution of the United States, and the state of Oklahoma.

For the reasons stated, the case is reversed and remanded.

DOYLE and BAREFOOT, JJ., concur.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    BENTON WALKER v. STATE.
    No. A-9092.
    Jan. 27, 1937.
    (64 Pac. [2d] 935.)

      J. Q. A. Harrod and Clay Snodgrass, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   BAREFOOT, J.

The plaintiff in error, Benton Walker, was convicted of burglary in the second degree in Jackson county, Okla., on the 28th day of September, 3935, and was sentenced to serve a term of two years in the state penitentiary. His appeal was filed in this court on March 27, 1936.

No brief has been filed on behalf of plaintiff in error and no appearance was made when the case was set for oral argument.

The rule has long been established in this court that when no brief is filed, or no appearance made for oral argument, the record will be examined for the purpose of determining whether or not jurisdictional facts are disclosed, and when such facts are disclosed, and no fundamental error appears, the judgment of the trial court will be affirmed. Bloodsworth v. State, 10 Okla. Cr. 99, 133 Pac. 1131; Spann v. State, 22 Okla. Cr. 128, 210 Pac. 315; Gladys Mitchell v. State, 35 Okla. Cr. 61, 248 Pac. 654; Bob Jones et al. v. State, 58 Okla. Cr. 308, 53 Pac. (2d) 292.

We have carefully examined the record in this case and we find no error justifying a reversal. The defendant was given a fair trial. The jury, after hearing the testimony, found the defendant guilty. The judgment of the district court of Jackson county is therefore affirmed. John Bradley v. State, 18 Okla. Cr. 503, 196 Pac. 730; Holloway v. State, 37 Okla. Cr. 24, 255 Pac. 1022; Cannon v. State, 51 Okla. Cr. 304, 1 Pac. (2d) 791; Jim Hart v. State, 57 Okla. Cr. 372, 48 Pac. (2d) 337.

DAVENPORT, P. J., and DOYLE, J., concur.


text:
    MYRON BYNUM v. STATE.
    No. A-9086.
    Jan. 27, 1937.
    (64 Pac. [2d] 933.)
    Mathers & Mathers and J. H. Gernert, for plaintiff in error.
    Mae Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to1 in this opinion as the defendant, was by information charged with burglary, was tried, convicted, and sentenced to serve a term in the state penitentiary for five years.

The evidence of the state is substantially as follows: V. E. Liles, his wife, his wife’s sister and two children left his home in the city of Tulsa approximately at 6:30 in the evening; when they left home, the screens and the windows and doors were closed. “When we returned home about 9 or 9:30 I found a back screen was pulled loose and a window was up. On examination I discovered two of my suits of clothing were gone. My sister-in-law’s jewelry, consisting of a wrist watch, a dinner ring, and necklace, had been taken.”

Jess Alexander, testifying for the state, stated on the 20th of February, 1933:

“I was a police officer operating a scout car; I received a call at 9:45 p. m., and reported to 2725 East Fourth place; this place was about four blocks from 2636 East Sixth street, V. E. Liles’ home. When Mr. Pollock and I drove up to the house at 2725 East Fourth place, Mr. Pollock got out of the car and chased a man who was running toward the back of the house; I saw a man coming out of the window, arresting him, searched him for firearms and took him to the police station, where upon a thorough search we found the jewelry belonging to the sister of Mrs. Liles on his person.
“About an hour after reaching the police station we received another call, and I reported back to the vicinity where we had arrested the defendant and found a Buiek car, in which car we found the two suits of clothing that had been taken from Mr. Liles’ home. The defendant stated the Buick car was. his. Later the car was turned over to the wife of the defendant.”

Mr. Lee Pollock, who was with the witness Alexander, corroborated the statements of Mr. Alexander. The defendant did not offer any evidence.

Several errors have been assigned by the defendant as a reason why his case should be reversed. In his brief the defendant argues that the evidence is insufficient to sustain the judgment. He also complains that the court erred in refusing to- give his requested instructions 2 and 5, but cites no authorities in support of his contention.

An examination of the instructions of the court discloses that the instructions given covered the law applicable to the facts in the case. This court has repeatedly-held that, where the instructions of the court cover the law applicable to the facts, it is not error for the court to refuse to give the requested instructions covering the same points.

The evidence shows that within four blocks of the Liles home the defendant was arrested by the officers coming out of another home. When searched, he had a part of the property on his person belonging to the sister-in-law of the witness Liles, and, when his car was picked up on the street, there were found in the car the two suits of clothing taken from the Liles home. In a statement to the officers the defendant stated he had loaned his car to a party but did not give the name of the party.

In Yeargin v. State, 54 Okla. Cr. 34, 14 Pac. (2d) 431, in the first paragraph of the syllabus, this court stated:

“Where an accused person is found in possession of property taken from the place recently burglarized, that fact may be considered by the jury, along with all other circumstances, as tending to show that the one in possession committed the burglary.”

The record shows the home of Liles was burglarized between 6:30 and 9:30 in the evening, and within four blocks the defendant was arrested coming out of another home. The jury is the exclusive judge of the weight of the evidence, and, where there is a clear conflict in the evidence, or if it is such that different inferences and deductions can properly be drawn from it, this determination will not be interfered with, unless it is clearly against the weight of the evidence or appears to have been influenced by passion or prejudice. Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Humberd v. State, 56 Okla. Cr. 23, 32 Pac. (2d) 954.

There is nothing in the record to show that the verdict of the jury in this case was influenced by passion or prejudice. From the evidence in the record the jury could not have reached any other conclusion than that of the defendant’s guilt. The evidence is sufficient to sustain the judgment. The defendant was accorded a fair and impartial trial. The court properly advised the jury as to the law applicable to the facts.

Finding no errors in the record, the judgment of the trial court is affirmed.

DOYLE and BAREFOOT, JJ., concur.


text:
    ARTHUR GOAD v. STATE.
    No. A-9153.
    Jan. 27, 1937.
    (64 Pac. [2d] 932.)

      I.O. Correll and Thos. W. Smith, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   BAREFOOT, J.

An information was filed by the county attorney of Atoka county against the defendant March 10,1932, charging him with the unlawful possession of a whisky still. The case was not tried until April 21, 1936. Defendant was convicted and assessed a fine of $50 and 30 days in jail and has appealed. It is assigned as error:

3. That certain incompetent evidence was introduced.

1. That defendant’s home was illegally searched.

2. That the evidence was insufficient to warrant a conviction.

In support of his first assignment of error, defendant contends that his home in Stringtown was. searched by oficers, without the issuance of a search warrant. The evidence upon this point is as follows:

“C. G. Maxwell, sheriff, being on the witness stand was asked: Q. Did you have a search warrant? A. I did. Q. Do you have the search warrant at this time? A. I do not. It’s in the files.”

Attorneys representing the defendant then asked the state to1 produce the search warrant and this motion was overruled by the court. After this testimony was given by the sheriff stating that he had a search warrant, the defendant made no attempt to show that no warrant had been issued. He did not offer as a witness the court clerk to show that no search warrant had been returned. The case, for some reason not shown by the record, was not tried until nearly four and a half years after the search Lad been made and the information filed. The defendant, while on the witness stand in his own behalf, testified as follows:

“Q. You heard the testimony of officers here a while ago as to what they found at your place? Tell the jury what they did find there. A. They come in and knocked at the door. Charley Maxwell said, ‘I have a search warrant for you’. I said, ‘All right, I want to see it.’ I don’t remember whether he showed it to me or not at that time. I said if you want to search the place, hop to it. Him and Bill went out the front door. Bill Turner started in the cellar. He come back with a little five gallon can. Charley come on in the house and found a thumper under the cook table where we keep the flour.”

It will thus be seen that the defendant did not remember whether the officers had a search warrant at the time of the search of the premises, and that he personally gave permission for them to search without a warrant. This court has held that the defendant may waive his right to have a search warrant issued by giving his voluntary consent to the officers permitting them to search without a warrant. In the case of Alpha Baker v. State, 35 Okla. Cr. 62, 248 Pac. 846, the court says:

“It is an invasion of the constitutional right of any person to search the residence and immediate premises without a valid search warrant, but this right may be Avaived by the voluntary consent of the person whose premises are searched, and, Avhen voluntary consent is given, evidence obtained by such search is admissible.”

Also in the case of Pennington v. State, 50 Okla. Cr. 291, 297 Pac. 330, where the court says:

“It is an invasion of the constitutional right of any person to search the residence and immediate premises without a valid search Avarrant, but this right may be waived by the voluntary consent of the person whose premises are searched, and, when voluntary consent is given, evidence obtained by such search is admissible.”

The contention that the evidence was insufficient to support the verdict cannot be upheld. The defendant and his family were living with his father at Stringtown. The officers searched the home and found a copper still with a boiler on it in the cellar, and a barrel partly filled with mash, caps, pipes, etc., and a. half gallon of whisky in the kitchen. The defendant, in his testimony, admitted the above articles were his property, that none of them .belonged to his father, that he was perfectly familiar with the parts that go to malee up a whisky still, and that he knew how to make whisky. He claimed that he had found these different parts of the still in the woods while securing firewood. All these facts were presented to the jury, and the jury, after hearing them, found the defendant guilty and gave him the minimum punishment.

The contention that the court erred in permitting the introduction of incompetent evidence is based upon the fact that the court permitted the officer to testify as to the finding of certain articles without producing in court the identical articles testified about. We do not think there is any merit in this contention.

The judgment of the county court of Atoka county is affirmed.

DAVENPORT, P. J., and DOYLE, J., concur.


text:
    CLARA UNDERWOOD v. STATE.
    No. A-9127.
    Jan. 27, 1937.
    (64 Pac. [2d] 929.)

      Gordon Fuller, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, for convenience herein referred to as the defendant, was by information charged with the specific crime of willfully, unlawfully, Avrongfully, and feloniously selling and delivering to one Roy Bridges five marihuana cigarettes, for the consideration and sum of 25 cents; was tried, convicted, and sentenced to serve a term of two years in the state penitentiary. From which conviction the defendant appeals.

The substance of the state’s testimony is that the defendant was living at No. 2 S. W. Fourteenth street, Oklahoma City, Okla.., on the 24th day of May, 1935. The proof shows on the said date John Von Elm, together with Roy Bridges, went to the home of the defendant, and Von Elm claims he gave Roy Bridges 25 cents to go to tbe defendant’s borne and buy marihuana cigarettes. Bridges claims he went to the defendant’s home and found the defendant, Vada Runnels, and a boy, and asked if they had any weeds, and that he bought from the defendant five marihuana eirgarettes. He struck a match and lit one and came out of the house smoking it, and gave to the witness on returning the one he was smoking and four other cigarettes.

Vada Runnels, ■ testifying for the state, says the defendant sold the cigarettes to Bridges.

The defendant denies she sold the cigarettes to Bridges, and denies she was at home the day the alleged sale took place, but states she left home that morning at 7 o’clock, and took her car and drove a Mr. and Mrs. Vaughn to Seminole. Both Mr. and Mrs. Vaughn corroborate the defendant as to' when she left Oklahoma City, and where they went, and what time in the evening they returned to Oklahoma City. Both Mr. and Mrs. Vaughn state they left with the defendant, in her car, from Oklahoma City, about 7 a. m., and were with her all during the day and returned to Oklahoma City about 9 o’clock in the evening of the 24th of May, 1935, the day of the alleged purchase of the marihuana cigarettes by Roy ■ Bridges.

To rebut the testimony of the defendant and Mr. and Mrs. Vaughn, Vada Runnels was recalled by the state, and testified the defendant did not leave her home until after Bridges came down to the house and bought the cigarettes from the defendant.

The defendant in her testimony denied that she sold Bridges any marihuana cigarettes, or that she had any in her possession at the time. Over the objections of the defendant, the court permitted the state to prove that at a later hour in the day than they claim Bridges bought the cigarettes of the defendant they went back to the defendant’s home with a search warrant, and searched the premises, finding the witness Yada Runnels and a boy at the home, but that the defendant was absent, and permitted the witness to tell of the marihuana cigarettes and other things they found around the place. This was subsequent to the specifically alleged offense of the sale of five marihuana cigarettes to Bridges.

The court also permitted, over the objections of the defendant, the state to prove by W. D. Tucker that three weeks or more prior to the 24'th day of May, 1935, he went to the defendant’s home, and took possession of some marihuana cigarettes. The defendant was in bed at the time, and witness stated there was only one room in the house. The witness says he did not have a search warrant to search the house, nor did he have permission.

The defendant assigns eight errors alleged to have been committed by the court in the trial of her case. In her brief she only discusses three of the assignments.

“1. Error of the court in overruling her motion for a new trial.
“2. Error of the court in overruling her motion for a directed verdict.
“3. Error of the court in admitting incompetent, irrelevant, immaterial and prejudicial testimony and evidence on the part of the State of Oklahoma, over the objection of plaintiff in error, the defendant.”

These three assignments have been considered together by the defendant in her brief, and the defendant earnestly urges that the court committed error in permitting incompetent, irrelevant, immaterial, and prejudicial evidence to be introduced against the defendant, over her objections.

It is necessary to keep in mind in this case the defendant was charged with a single sale of five marihuana cigarettes for 25 cents.

This court in Alexander v. State, 24 Okla. Cr. 435, 218 Pac. 543, in the second paragraph of the syllabus, said:

“Where the information charged a single sale to a named person on a certain date, proof of other alleged sales to another person at different times and on different occasions was improperly admitted over objection of accused; no- question of knowledge, design, intent, or mistake, or other such element entering into the issues formed by the evidence, to make such evidence admissible.” •

During the progress of the trial the state was permitted to offer testimony of W. D. Tucker that within three Aveeks prior to the date of the alleged sale in this case he visited the home of the defendant without a search warrant to search her home, and out of some of the furniture in the room took some marihuana cigarettes. This evidence was admitted over the objection of counsel for the defendant, and exceptions duly taken. As shown by the record, the witness was a trespasser in the home of the defendant when he entered it and proceeded to go through the furniture and take from the house anything in particular, either marihuana cigarettes or any other property, for the reason that he had no-authority to enter the defendant’s home as an officer or individual without a. proper search warrant to search the same based on an affidavit as provided by our statutes.

The home of the defendant is her castle, and, though a one-room shack, she is entitled to the protection of the law, and any officer who enters it without a search warrant is a trespasser and law violator, and any testimony procured while violating the law as a trespasser in the home of the defendant is inadmissible and prejudicial to the rights of this defendant on trial for a specific sale.

The testimony of Tucker had no relation to the alleged sale to Roy Bridges, and, if true, was a violation of the law by the defendant at a different time and on a different occasion to the one charged in the information. Where the state relies on a particular sale of marihuana cigarettes, the general rule is that proof of other violations of the law for the purpose of establishing the particular sale charged is not admissible. The issue in this case is single, and the testimony should be confined to the issue. When the defendant is on trial for one offense, the prosecution cannot aid the proof against her by showing she committed other offenses. Horton’s Crim. Evidence, par. 104; First Bishop, Crim. Proc. par. 1120.

The reason and justice of the rule is apparent, and its observance is necessary to prevent injustice in criminal prosecutions. Bishop says:

“To permit such evidence will be to put a man’s whole life in issue upon a charge of a single wrongful act, and crush him by irrelevant matter he could not be prepared to meet.” First Bishop, Crim. Proc. par. 1124.

The defendant further complains that over her objections certain officers were permitted to testify that about thirty minutes to an hour after the time Roy Bridges testified the accused had sold him five marihuana cigarettes at her residence in Oklahoma City the officers made the search of the residence of the accused, and in her room occupied at the time of the search by Vada Runnels and a boy they claim to have found marihuana cigarettes. The undisputed evidence of the officers shows that at the time the search was made the defendant was not at home. We cannot see that this evidence had any bearing upon the single sale to Roy Bridges, or that it was properly admitted to contradict or disprove the evidence offered by the defendant.

For the reason stated, the conviction is reversed and remanded to the trial court for further proceedings not inconsistent with this opinion.

DOYLE and BAREFOOT, JJ., concur.


text:
    HERMAN WASHINGTON v. STATE.
    No. A-9154.
    Jan. 27, 1937.
    (64 Pac. [2d] 926.)
    Newman & Phillips, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess Pullen, Asst. Atty. Gen., for the State.
   BAREFOOT, J.

The county attorney of Bryan county filed an information against the defendant on the 16th day of November, 1935, charging him with the transportation of intoxicating liquor. The defendant filed a motion to suppress the evidence upon which this information was based for the reason that the officers had no search warrant at the time they searched the automobile and seized liquor for which the defendant was being prosecuted.

The court overruled the motion to which the defendant excepted. The case was tried, the defendant found guilty and has appealed to this court.

The facts are that the defendant was arrested while driving his Ford roadster near the city limits of Durant, in Bryan county, by officers stationed near the highway for the purpose of inspecting lights and brakes on all cars, by order of the Governor. These officers had no search warrant. They did not know the defendant and had no warrant for his arrest. They had no reason to suspect that he had violated any law when they apprehended him. on the highway. The only basis for his arrest was that one of the officers testified that as his car passed him he saw the turtle-back of the car fly up and saw a box setting in the back marked whisky. This was about 9 o’clock at night, on November 14th, and while the car was running about 15 or 20 miles an hour. He, at no time, saw any whisky, but was merely suspicious that the box might contain whisky.

The facts in this case come clearly within the rule announced by this court in many cases. In Murray v. State, 51 Okla. Cr. 44, 299 Pac. 506, the court says:

“Search of a car without a warrant of arrest, or search warrant, or knowledge by the officers that it contained intoxicating liquor, or without sufficient knowledge to cause an ordinarily prudent person to' act, is illegal, and the evidence so obtained should have been excluded upon timely objection.”

Also, in the case of Combest v. State, 51 Okla. Cr. 38, 299 Pac. 920, 921, the court says:

“It is also argued that the search of the automobile sitting in front of defendant’s house was unlawful and evidence obtained thereby is inadmissible. With this contention we are also in accord. The officers had no warrant to search the automobile and the search was unlawful.” See, also, Smith v. State, 48 Okla. Cr. 115, 289 Pac. 792; Bowen v. State, 50 Okla. Cr. 36, 295 Pac. 623; Britton v. State, 34 Okla. Cr. 391, 246 Pac. 666; Strong v. State, 42 Okla. Cr. 114, 274 Pac. 890, and Stanley v. State, 82 Okla. 294, 200 Pac. 229; Taylor v. State, 118 Okla. 262, 247 Pac. 377.

The motion to suppress the evidence should have been sustained.

It becomes unnecessary to pass on other errors assigned in this case. The judgment is reversed.

DAVENPORT, P. J., and DOYLE, J., concur.


author: PER CURIAM.

text:
    Ex parte CLIFFORD WILSON.
    No. A-9245.
    Jan. 29, 1937.
    (64 Pac. [2d] 920.)
    L. A. Justus, Jr., and Ward & Ward, for petitioner.
    Mae Q. Williamson, Atty. Gen., Sim T. Carman, Co. Atty., and L. L. McKenzie, Asst. Co. Atty., for the State.
   PER CURIAM.

The petitioner, Clifford Wilson, filed his duly verified petition in this court, on December 29, 1936, alleging that he is unlawfully restrained and imprisoned in the county jail of Osage county, Okla., by R. B. Conner, sheriff of Osage county.

The petitioner further alleges that thé cause of said complaint, according to his best knowledge and belief, is that he was arrested on a charge of murder upon a warrant issued by R E. Havens, justice of the peace. That heretofore your petitioner filed a petition for writ of habeas corpus in the district court of Osage county, and further asked that if the court found there was sufficient evidence offered before, the examining magistrate to justify the order of court, then said petition he treated as an application for bail, and that bail be allowed and fixed by the petitioner; which petition was denied by the district court.

It is further alleged by the petitioner that in the hearing before the justice of the peace there was no evidence offered which showed or tended to show in any manner, “That the offense charged had been committed by the defendant, or that any other offense had been committed against the laws of the state of Oklahoma, by said defendant, nor was there any evidence offered which showed or tended to show that there was any probable cause or belief that said Clifford Wilson was guilty of the offense charged, or any other offense, but the evidence offered at the said preliminary wholly fails to establish, probable cause that the defendant was guilty of the crime charged, and was insufficient to justify the examining magistrate in issuing an order committing said defendant to the county jail for trial before the district court, on a charge of murder. Yet, notwithstanding the premises the said justice of the peace did wrongfully and illegally refuse to discharge the said Clifford Wilson, and on the 3'Oth day of November, 1936, issued a commitment to the sheriff of Osage county, to take into1 his custody and safekeeping the said Clifford Wilson, to await trial in the district court of Osage county, at the next term of court or as soon thereafter as the case could be heard, and the said justice of the peace did so order defendant held without bail.”

It is further alleged by the petitioner that the examining magistrate committing him to jail without bond was illegal and void, and that the commitment under which the petitioner is held is illegal, void, and insufficient ití law. A copy of the testimony taken at the preliminary trial was attached to the petitioner’s petition, and asked to be considered in support of his allegations that he is illegally held and restrained of his liberty.

Petitioner appeared by his attorneys, John L. Ward and L. A. Justus, Jr., and the state appeared by the Attorney General. The allegations of the petition and transcript of the evidence offered in support of his allegations have been carefully considered, as well as the oral argument made by petitioner’s counsel, and the court, having considered the allegations of the petition, and evidence in support of the same, is of the opinion that the petitioner is not entitled to the relief prayed for.

The application of the petitioner for the writ of ha-beas corpus to be admitted to bail is therefore denied.


author: DOYLE, J.

text:
    BENTON WALKER v. STATE.
    No. A-9144.
    Jan. 29, 1937.
    (64 Pac. [2d] 940.)

      Morrill & Snodgrass, for appellant.
    The Attorney General, for the State.
   DOYLE, J.

This appeal is from a judgment of conviction, rendered on the verdict of a jury finding the defendant, Benton Walker, guilty as charged of unlawful possession of a still, used for the manufacture of distilled spirits or liquor, second offense, and fixing his punishment at a fine of $300 and confinement in the county jail for a term of six months.

The information charged:

“That at and within said county and state, on or about the 15th day of March, 1935, and anterior to1 the filing of this information, Benton Walker, in the county and state aforesaid, and on the day and year aforesaid, did willfully, unlawfully and feloniously, commit a second offense against the prohibitory liquor laws of the state of Oklahoma in the manner and form as follows:
“That on the 5th day of December, 1932, the said Benton Walker was informed against in case No. 1999 in the county court of Jackson county, Oklahoma, for the crime of possession of intoxicating liquor, and did thereafter on the 5th day of December, 1932, appear in open court and enter his plea of guilty to' said information and was by the court sentenced to- serve a term of thirty (30) days in the county jail and to> pay a fine of $50.00 and! costs of said action, said court having jurisdiction of said offense, and the said Benton Walker did thereafter serve said sentence.
“That thereafter and on or about the 15th day of March, 1935, the said Benton Walker, having been previously convicted as aforesaid, did then and there in the said county of Jackson, state of Oklahoma, willfully and: feloniously, keep and have in his possession a still capable of being used in the manufacture of intoxicating liquor, contrary to,” etc.

The undisputed facts are that on the date alleged Sheriff Savage and a deputy discovered a still on the river on the Helm place, about two or three miles northeast of the town of Hedrick; shortly afterwards an automobile drove up, the defendant g;ot out of the car in front of a nearby dugout and said, “Come out and help me unload this damn stuff.” The sheriff helped the defendant unload a water tank, then the defendant recognized the sheriff.

It further appears that the defendant, as alleged, was formerly convicted of unlawful possession of intoxicating liquor.

No testimony was given by the defendant or by any witness in his behalf, as both parties rested at the close of the case for the state.

On May 18, 1936, an appeal from the judgment was taken by filing in this court a petition in error with case-made and proper proof of notice.

No briefs have been filed, and no appearance for oral argument made.

Where the defendant appeals from a judgment of conviction and no1 brief in support of the petition in error is submitted and no appearance for oral argument made, we do- not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in the admission or rejection of testimony. This court will examine the record proper for jurisdictional errors. If no fundamental error appears, the judgment will be affirmed.

We have examined the record and find that the information is sufficient to charge the offense defined in the Enforcement Act, section 2608, St. 1931, also as provided by section 2632, providing:

“For all second and all subsequent convictions for the violation of any of the provisions of this act, the penalty shall be a fine of not less than fifty ($50) dollars, nor more than two thousand ($2,000) dollars, and by imprisonment of not less than thirty (30) days in the county jail, nor more than five (5) years in the state penitentiary, and it shall be mandatory upon the trial judge in cases where anyone has been convicted under any provision of this act, to pronounce sentence within ten days from the date of conviction.”

Upon the record before us we have discovered no error which will warrant a reversal of the judgment.

The judgment of the lower court is accordingly in all things affirmed.

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


text:
    G. E. CROWDIS et al. v. STATE.
    No. A-9162.
    Feb. 5, 1937.
    (64 Pac. [2d] 1248.)
    W. F. Duncan, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error were convicted of the crime of assault and battery, and their punishment fixed a.t a fine of $75.

The record in this case was filed in this court on June 15, 1936; no brief has been filed in support of the plaintiffs’ assignment of errors. A careful examination of the record discloses no fundamental errors. The evidence is sufficient to support the verdict of the jury. The case is therefore affirmed.


text:
    BILL OWENS v. STATE.
    No. A-9163.
    Feb. 5, 1937.
    (64 Pac. [2d] 1234.)
    Kenneth B. Kienzle, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

Upon information filed in the district court of Pottawatomie county October 3, 1935, in substance charging that in said county on the 30th day of November, 1933', Bill Owens did unlawfully, willfully, and feloniously shoot and kill one Hoyt Hughes, the defendant was tried and convicted of manslaughter in the first degree; the jury by their verdict fixing his punishment at imprisonment in the penitentiary for a term of 20 years. A new trial having been denied, he appealed from the judgment pronounced in pursuance of the verdict by filing in this court on June 15, 1936, a case-made with petition in error attached.

Extensions of time in which to serve and file briefs were granted to counsel for the defendant before and after the case was submitted on the record. However, no briefs have been filed on his behalf and no appearance was made for oral argument when the cause was called for hearing and final submission.

It has often been said by this court that in a homicide case, where the defendant appeals from a judgment of conviction and no brief is filed or oral argument made, this court will examine the record and the evidence and, if no error prejudicial to the substantial rights of the defendant is apparent, will affirm the judgment. Lewis v. State, 12 Okla. Cr. 357, 157 Pac. 271; Northcutt v. State, 22 Okla. Cr. 410, 211 Pac. 521; Arthurs v. State, 35 Okla. Cr. 126, 248 Pac. 873.

The fact that the deceased was shot and killed by the defendant is not disputed. The homicide was committed in the city of Shawnee, at the Wolcott Hotel a few minutes after 8 o’clock, the evening of the date alleged. The deceased, Hoyt Hughes, a negro boy, was employed as a bell hop and to operate the elevator. The defendant came into the lobby of the hotel and entered the elevator; a few minutes later two shots were heard. The elevator door opened and the defendant rushed out through the lobby holding a pistol in his hand. The deceased was lying in the elevator and died there without speaking, as the result of two' gunshot wounds, one in the back and one in the abdomen.

The question for the jury on the evidence was whether the act was justifiable in self-defense as was claimed by the defendant, or murder or manslaughter in the first degree.

Jack Belisle, the principal witness for the state, testified that he was clerk at the Wolcott Hotel, on duty; that Hoyt Hughes was working on the night shift as bell-boy and operated the elevator; that the defendant came up/ from the basement to the hotel lobby, a few minutes later he heard a scuffle in the elevator then between the main and second floor, then he heard a shot, then another scuffle, then he heard another shot; at that instant the elevator was down to the main floor. The defendant ran from the elevator holding a revolver in his hand and passed out to the street. Hoyt Hughes, the negro bellboy, was lying on the floor of the elevator, apparently dead.

As a witness in his own behalf, the defendant, Bill Owens, testified that he was living with Bobbie Turner, a married woman, off and on before serving a term in the state penitentiary at MeA1 ester; that he left the penitentiary in June, 1933, and since then they had been living together; that day they arrived at Shawnee and were broke; that they went to the Wee rooming house and he went out and. sold his jacket to the boy who testified as a witness for the state for enough to eat supper on; and when he came back Bobbie was gone, pretty soon she returned, her dress was torn and she urns crying. After she told him what had happened, he Avent over to the Wol-cott Hotel, aiming to whip the deceased and stomp him through the floor of the elevator; that he got on the elevator and AAdien they started up he hit the deceased and knocked him up against the .side of the elevator and the deceased pulled a pistol; that he grabbed it and while they both had hold of the pistol it went off and the deceased fell over; that knowing he was an ex-convict he ran away instead of going to the police station; so he went back and told Bobbie to meet him in Tulsa, and from there they went to Pueblo, Colo.; that he worked there about five months before the officers arrested him; that he had served two terms in the state penitentiary and one in the state reformatory.

Upon the facts, which the foregoing, is but a brief outline, and as to which there was but little conflict, the case was submitted to the jury by the trial court in a charge fully and fairly covering the law of the case.

After a careful examination of the case, both as to the law and as to the evidence, we have failed to discover anything whereof the defendant has any just right to complain. In our opinion the evidence in the case shows beyond any reasonable doubt that the defendant committed a cold-blooded assassination by deliberately shooting an unarmed man in the back. Upon the undisputed facts, we think the jury would have been justified in assessing the extreme penalty of the law, and their failure tQ' assess the same confirms our conclusion that the defendant was accorded a trial more lenient even than a fair and impartial one.

The judgment of the lower court will therefore be affirmed.

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


text:
    Ex parte J. H. PORTER.
    No. A-9198.
    Feb. 5, 1937.
    (64 Pac. [2d] 1235.)

      C. E. B. Cutler, for petitioner.
    Mac Q. Williamson, Atty. Gen., for respondent.
   DOYLE, J.

(after stating the facts as above). The petitioner is in the custody of the warden of the state penitentiaiy under sentence of confinement in the state penitentiary at McAl ester for the term of seven years, pronounced and entered March 23, 1929, by the superior court of Okmulgee county, ELenryetta division, in pursuance of the verdict of a jury finding him guilty of manslaughter in the first degree. The commitment in conformity with said judgment did not issue until September 1, 1.93'6, on which date petitioner was committed to the custody of the warden of the state penitentiary.

In this proceeding petitioner by his counsel, C. E. B. Cutler, presented to- this court on September 9, 1936, a petition averring; that he is unlawfully imprisoned in the state penitentiary at McAlester for reasons stated.

Counsel in his brief says:

“The court officials were to blame for Porter’s running at large at a time when he should have been locked up in prison; they intentionally planned for his running1 ait large by telling him to remain subject to call of the sheriff. They agreed that Porter’s prison term was to ran from the date of his sentence and fixed the day in his sentence and judgment, as follows:
“ ‘Said term of imprisonment to begin at and from the 23 day of March, A. D. 1929.’ ”

The contention on behalf of petitioner is that the sentence has been fully satisfied by reason of said agreement and by lapse of time. Citing Ex parte Eley, 9 Okla. Cr. 76, 130 Pac. 821, 823; In re Jennings (C. C.) 118 P. 479.

The uniform holding of this court is that the time fixed for the execution of a sentence, or the commencement of its execution, is not one of its essential elements, and where the penalty is imprisonment the sentence may be satisfied only by the suffering of the actual imprisonment imposed. Ex parte Eldridge, 3 Okla. Cr. 499, 106 Pac. 980, 27 L. R. A. (N. S.) 625, 139 Am. St. Rep. 967; Ex parte Alexander, 5 Okla. Cr. 196, 113 Pac. 993; Ex parte Oliver, 11 Okla. Cr. 536, 149 Pac. 117, 119; Ex parte Smith, 17 Okla. Cr. 578, 190 Pac. 1092; Ex parte Smith, 33 Okla. Cr. 175, 242 Pac. 284. And see Ex parte Riggert, 33 Okla. 303, 125 Pac. 485.

In Ex parte Alexander, supra, it was held that:

“The time fixed for execution of a sentence, or for the commencement of its execution, is not one of its essential elements, and, strictly speaking, forms no part of the judgment and sentence, which is the penalty of the law as declared by the court; while the direction with respect to the time of carrying, it into' effect' is in the nature of an award of execution, so that, where the penalty is imprisonment, the sentence may be satisfied only by the actual suffering of the. imprisonment imposed, unless remitted by death or some legal authority.
“Where a convicted defendant is at liberty and has not served his sentence, and the same is not stayed as provided by law, he may be arrested as on escape and ordered into custody on the unexecuted judgment. * * *
“ ‘Expiration of time without imprisonment is in no sense an execution of the sentence.’ ”

In the case at bar a stipulation of facts was filed, supported by affidavit of J. Harry Swan, wherein affiant states that he was the superior court judge of Okmulgee county from 1923 to 1935, and was the presiding judge in the case of State v. J. H. Porter; that some time in 1931, said J. H. Porter reported to affiant and told him if he had to serve his sentence, he wanted it to begin at once; that he informed him that his sentence had already started, but to report to the sheriff, that he was subject to his command; that it was the understanding between the county attorney and officials, at the time of sentence, that it was to begin from the date as shown in the judgment; and as affiant is informed and believes, that said Porter did report to the sheriff, and that he was considered as a prisoner on leave by all of the officials of the county at the time.

It was further agreed that petitioner then returned to his home near the city of Seminole and continued to reside there until the sheriff on the commitment in question arrested him and delivered him to the warden.

In the case of Ex parte Oliver, supra, we said: “The only way of satisfying a judgment judicially is by fulfilling its requirements. This cannot be waived, as here claimed, by the officers of court, whose duties with respect to its judgments are purely ministerial.”

In the Eley Case, supra, relied on, there was a conviction, commitment, and imprisonment. After the sentence was partly executed, the prisoner was told to go home. He went and there stayed under the supervision of the sheriff. As stated in the opinion: “The petitioner in this case was in the custody of the sheriff and subject to his call at all times until the expiration of the prison sentence, and was in legal effect a ‘trusty.’ ”

In the instant case, if the agreement on the part of the court, county attorney, and sheriff with the petitioner could satisfy the judgment and sentence, it would in effect be an exercise of the power to pardon.

The authority “to grant, after conviction, reprieves, commutations, paroles, and pardons for all offenses, except cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper” is by the Constitution (article 6, § 10) vested exclusively in the Governor, and such action on the part of these officials was wholly unauthorized and without authority of law.

It follows from the foregoing, the judgment being valid and the sentence unserved, the commitment of petitioner in execution of the judgment was and is a legal and valid imprisonment.

For the reasons stated, the demurrer is sustained and the petition for writ of habeas corpus will be denied. It is so ordered.

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


author: CHAPPELL, J.

text:
    RUSSELL LONG v. STATE.
    No. A-8554.
    Oct. 19, 1934.
    Rehearing Denied Jan. 2, 1935.
    (44 Pac. [2d] 896.)

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

Plaintiff in error, hereinafter referred to as defendant, was convicted in the district court of Garvin county of the crime of manslaughter in the first degree in the killing of Joe Pack, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of four years.

It is not necessary to go into specific details as to what each of the witnesses who was present at the time of the shooting testified to. There is a direct conflict in the evidence. According to1 the state’s witnesses, defendant shot Joe Pack when he was several yards away from him and without any apparent necessity to use the amount of force he used at that time.

On the other hand, the testimony of defendant and' his witnesses, if believed, would have authorized the jury to acquit defendant on the ground of self-defense and defense of his father.

It appears from the record that the homicide Avas the result of a, dispute between defendant and his father and brother and Pack and certain of his family over the gathering of pecans on an Indian allotment, and considerable evidence was introduced by both the state and defendant concerning the rights of the parties. It does not appear from this evidence that defendant and those with him were protecting any property that belonged to them from any felony that was being committed against such property by deceased. The right of the parties was in dispute in the trial, but it does not enter into the relative merits of the killing. The testimony of defendant himself places his defense upon his right to defend himself and his father against an unlawful attack being made upon them by deceased. Defendant and those with him went upon the premises in dispute armed, evidently for the purpose of gathering the pecans and preventing deceased from obtaining any of them, and in the fight that, followed defendant killed deceased.

If there was involved in this appeal the question of the relative lights of the Packs and the Longs to- be upon this particular allotment at the time the killing occurred, the legal questions might become involved- and instructions required covering this point, but in view of the fact that the testimony of defendant is to the effect that he shot deceased solely in defense of himself and his father, it was not necessary for the court to instruct upon the relative right of possession of the parties, although it may be said in passing that the instructions of the court were sufficient to cover that issue.

There is no principle of criminal practice better established in this state than that the instructions must be considered as a whole, and when so considered, if they fairly -cover the law of the case as applicable to the evidence, they are sufficient, and failure to give requested instructions under such circumstances would not be reversible error. Manning v. State, 7 Okla. Cr. 368, 123 Pac. 1029; Ryan v. State, 8 Okla. Cr. 624, 129 Pac. 685; Smith v. State, 18 Okla. Cr. 519, 196 Pac. 734; Hawkins v. State, 24 Okla. Cr. 82, 216 Pac. 166; Hamilton v. State, 38 Okla. Cr. 62, 259 Pac. 168.

Under these authorities the requested instructions of defendant were properly denied.

The court on its own motion gave 19 instructions. When considered together, in connection with the facts and circumstances of the case, they fairly state the law and are as favorable to- the defendant as the law and the evidence require.

It is next contended the court erred in not granting a new trial because of the alleged disqualification of one A. F. Boren, who sat as a juror in the trial of the case.

It appears from the record that the question was raised in the motion for new trial, and that a lengthy stipulation was entered into between the state and the defendant as to what had occurred which would justify the courts in declaring a mistrial. It appears from the last clause in this stipulation that:

“In such conference between counsel for the state and the defendant, in the presence of the court, the court asked Mr. J. T. Blanton, counsel for defendant, whether he desired to ask for a mistrial, and he said ‘We do not ask for a mistrial.’ ”

Counsel having specifically waived the question of a mistrial on account of the alleged disqualification of the juror during the trial, he cannot take a position in thisi court inconsistent with the position he took in the trial court.

No reversible error appearing, the cause is affirmed.

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


author: EDWARDS, J.

text:
    H. S. CAPPS v. STATE.
    No. A-8717.
    April 19, 1935.
    (44 Pac. [2d] 151.)
    Ed Crossland, Prank Hickman, Will J. Ealy, and W. C. Peters, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted in district court, Tulsa county, of arson and his punishment fixed at eighteen months in the penitentiary.

On the date charged a dwelling house in Tulsa, belonging to a Mrs. Craft, was destroyed by fire. Defendant had acted as the agent of Mrs. Craft on different occasions and they had life insurance policies payable to each other. The state seeks to show that defendant procured one Arthur Clark to bum the house. Millard Green •testified defendant told him he had a fire'job he wanted dohe and asked him if he could get some one to do it. Green approached Clark with the proposition and the two agreed to bum the building for $100. They then bought some kerosene, went to the house and prepared to set the fire. At this point Green became alarmed, so they decided not to set the fire that night. Green had nothing further to do with it. Clark and his wife testified, in substance, that Clark went to his home, procured his wife to assist, and the two returned to the house the following night with a mixture of kerosene, and removed some of the furniture which they placed in their car and Clark set fire to the house. Mrs. Green testified defendant came to their house twice, but she knew nothing about the transactions.

The defendant sought to prove alibi and good character. The alibi witnesses testified in effect that defendant did not leave his home on the day of the negotiations at another place, as testified to by the state’s witnesses.

At the close of the state’s case, defendant demurred on the ground that there was no corroboration of the accomplices.

Section 3071, Okla. St. 1931, provides:

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

In Nichols v. State, 10 Okla. Cr. 12, 133 P. 256, it is said:

“To allow a conviction to stand upon the testimony of an accomplice not corroborated by any other evidence tending to connect the defendant with the commission of the offense would be in direct violation both of the letter and spirit of section 5884, Rev. Laws 1910, Procedure Criminal.”

In Kirk v. State, 10 Okla. Cr. 281, 135 P. 1156, it is lield:

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

Many cases state this general rule.

One accomplice cannot corroborate another. Cudjoe v. State, 12 Okla. Cr. 246, 154 Pac. 500, L. R. A. 1916F, 1251; Hanna v. State, 30 Okla. Cr. 354, 235 Pac. 928. Clark, Mrs. Clark, and Green are accomplices. There is no evidence in this case tending to connect defendant with the commission of the offense other than, their testimony. Since there is a lack of corroboration as required by law, the evidence is insufficient to sustain the verdict. The case is reversed.

DAVENPORT, P. J., and DOYLE, J., concur.


text:
    LLOYD GRABLE v. STATE.
    No. A-8838.
    April 26, 1935.
    (44 Pac. [2d] 152.)

      Gill & Caldwell, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Eula, Erixon, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter for convenience called the defendant, was by information jointly charged with Oscar Smith, Roy Smith, W. F. Cummings, Millard Pack, and Daniel. Smothers, with the crime of attempting to rob the First National Bank of Fletcher, Okla., by the use of firearms; was tried separately, convicted, and his punishment fixed at death by electrocution, and his case is here on appeal.

The condition we find this record in it is deemed necessary to mention the substance of the testimony. The defendant was positively identified as being at the scene of the robbery, and was afterwards arrested at the home of a Mr. Avery, in company with W. F. Cummings, who was also identified as being a member in the attempted robbery. The defendant denies he took any part in the bank robbery or was present.

The defendant has assigned 22 errors which he alleges are sufficient to warrant this court in reversing his case. The only assignment this court deems necessary to consider in reaching an opinion in this case is the seventeenth assignment, which is as follows :

“Error on the .part of the bailiff in going into' the jury room ■ and conversing with and praying to and for the jury, in violation of the cpurt instructions.”

Section 3081, O. S. 1931, is as follows:

“After hearing the charge, the jury may either decide in court, or may retire for deliberation. If they do not agree without retiring, one or more officers must be sworn to keep them together in some private and convenient place, and not to permit any person to speak to or communicate with them, or do so themselves, unless it be by order of the court, or to ask them whether they have agreed upon a verdict, and to return them into court when they have so' agreed, or when ordered by the court.”

By this section it will be seen that the only acts permitted to be performed by the bailiff are to keep the jury together in some private and convenient place and not to permit any person to speak or communicate with the members of the jury nor to do so himself unless by order of the court; or to ask the jury if it had agreed upon a verdict; and to return the jury into court when it has agreed or to return the jury into court by order of the court.

It is not disputed that M. L. Bergan, an ordained minister, was the bailiff sworn to attend the jury and to serve the jurors until they had reached an agreement or failed to reach an agreement, and to report the wishes of the jury to the court. That the jury was taken to the city hall in the city of Lawton, in Comanche county, Okla., the county in which the defendant was tried. That after the jury had 'been taken to the room in the basement of the city hall to consider its verdict, it was taken to dinner and came back through the city hall and again went into the basement. The bailiff Bergan stated:

“I did not notice any men in the city hall except the officers as we went down to the basement; I had furnished the jurors with paper,' and in about fifteen or twenty minutes they knocked on the door and I opened the door and he told me what he wanted. I told him ‘No, wait a minute’, when he told me what he wanted me to come inside fox*. He said the jury wanted me to come in and offer a word of prayer; I told them to wait a minute, but I had asked them if they had agreed on a verdict; he said they had. I went and got a drink of water and came back and asked him, ‘Stanley, have you reached a verdict?’ and he said, ‘Yes, dad.’ I asked no question, said nothing to either of the jurors, offered a word of pray ex*, and turned around and walked out. I am an ordained minister. I offered the prayer in the presence of all the jurors.”

The testimony further shows that before they got to the basement the bailiff in charge of the jury had to find a police officer to unlock the door so the jury could be taken into the basement of the city hall. The record shows that at the time the bailiff offered the prayer the jury was still in the jury x*oom; had not been taken into court; and had not returned its verdict into court.

The statement of the bailiff further shows that when he stepped in where the jury had been deliberating on the verdict, he pulled the door to, and when he came out he opened the door and kept it open. The witness further stated that before noon the jury had deliberated in the counsel chamber of the city hall; that while they were eating dinner he was directed by either Mr. McQuistion or Mr. Dwight to take the jury to the basement for their further deliberation.

Mr. Sneed, who was foreman of the jury, among other things, stated:

“We had agx*eed upon a vex*dict. I don’t remember whether we had notified the bailiff we had agreed upon a verdict at the time we called him or not.”

Mr. Sneed further stated that when the bailiff entered the room “we told him we had reached a verdict — I think we did — when the bailiff came in some one asked if we could have a prayer; I think it was Mr. Bates.”

Mr. Bates says;

“I can’t exactly say what our motive was but I just wanted to feel that I was clear, and was being guided by what I had done, I knew the bailiff was a minister of the gospel.”

It is true we are commanded to pray without ceasing. In the third chapter of Ecclesiastes, among other things, we are taught:

“To everything there is a season,
a time for every purpose under the heaven;
a time to weep and a time to laugh;
a time to mourn and a time to dance;
a time to get, and a time to lose;
a time to keep, and a time to cast away;
a time to love and a time to hate;
a time of war and a time of peace.”

Under the provisions of the law in this state, it is perfectly clear that it was not the proper time to pray, and, under the circumstances and admonitions of the court to the bailiff, the prayer in the jury room before the jury returned its verdict into court was a violation of the statute, the admonition of the court to the bailiff, and the instructions of the court to the jury, and was prejudicial to the rights of the defendant.

This is the first time, so far as this court has been able to find, where the jury and bailiff violated the law, and the instructions of the court by having a conversation and prayer in the room where the jury had been deliberating on its verdict. One of the jurors, Mr. Bates, says they had agreed upon a verdict before they called the bailiff into the room, but when asked as to why he wanted prayer, he said, “Well, I can’t just exactly say, but I just wanted to feel that I was clear, and was being guided by what- I had doné.”

An effort is made by the state to justify the action of the jury and the bailiff by attempting to show that a verdict had been agreed upon when they called the bailiff into the room and he offered prayer. It is necessary to keep in mind this fact and that is that at any time before the jury had left the jury room any member of the jury could have changed his mind and insisted on a different verdict. Any action, conversation, or prayer in the jury room, in the presence of the jurors, before the verdict had been returned into open court, was in violation of the law, unwarranted by the admonition of the court and. its instructions, and violated the rights of the defendant.

The question of the misconduct of the jurors and officers of the court has been before this court in many ways. In Ridley v. State, 5 Okla. Cr. 522, 115 Pac. 628, the court said:

“It is the duty of courts to enforce a rigid and vigilant observance of the provisions of th.e statutes designed to preserve inviolate the right of trial by jury, and the purity of jury trials.”

In Selstrom v. State, 7 Okla. Cr. 345, 123 P. 557, the court said:

“Where the bailiff calls a juror from the jury, room after the case bus been finally submitted to the jury, and the juror leaves the bailiff and goes into another "robin and' converses with the sheriff; and his conduct and conversation during that time is unexplained, it is an. abuse of discretion for the trial court to overrule the motion for a new trial.”

In Watson v. State, 7 Okla. Cr. 508, 124 Pac. 329, this court said:

“That- after the jury have retired for deliberation, if they shall desire to be informed on a- point of law, they must be conducted into the courtroom and the information given in the presence of or after notice to the counsel for both parties, it is reversible error for the judge to follow the bailiff to the jury-room and there instruct the jury as to the effect of a verdict rendered by them; none of the counsel being present.”

We could cite many more authorities upon the question of the misconduct of the courts and jurors, but, as stated heretofore in this opinion, we have been unable to find any case directly in point. Suffice it to say that in this case the defendant was on trial for a crime, the punishment of which could be death, and in this case upon the verdict of guilty the death penalty was imposed. It is of the utmost importance that the jurors and court officials should be held to the strict observance of the law describing their procedure and duties, and their conduct should be such that no breath of suspicion can attach to them of having acted in a manner prejudicial to the accused or in his favor. Under the statute (O. S. 1931, sec. 3085), if the jurors were in doubt .as to how to proceed, they should have required the officer in charge to conduct them into court and. the necessary information would have been given by the court in the presence of the parties.

In this case if the jurors felt they desired a word of prayer it was the duty of the jury to ask to be brought into- open court and return its verdict, and then advise the court they desired a word of prayer, or to have retired to some private room and asked the bailiff to have said a word of prayer for their benefit. If such conduct 'as was participated in by the jurors in this case should be tolerated and approved by this court, it would tend to destroy the sacredness and privacy of a jury in its deli-, berations when any case was submitted to it.

As there will be a new trial in this case, we refrain from discussing the other errors assigned, or from saying any word that would indicate our opinion as to the guilt or innocence of the defendant.

For the errors herein stated, the judgment of the trial court is reversed, with directions to grant the defendant a new trial.

EDWARDS and DOYLE, JJ., concur.


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    L. H. DISMORE v. STATE.
    No. A-8764.
    May 3, 1935.
    (44 Pac. [2d] 894.)

      R. L. Christian, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Tillman county of stealing an automobile and sentenced to serve five years in the state penitentiary. The evidence is that on the night of December 12, 1933, a Chevrolet coach, belonging to one Smith, was stolen from the streets of Frederick. About 9 o’clock that night defendant left Frederick in this car with one Crockett Fallin. Early the next morning they were pulled out of the bed of the North Fork of Red river where the car had stuck. When towed out of the river bed defendant was at the wheel and the ■ car was towed to the premises of a tenant of defendant by a team that he had been using. Later the car was run off a bluff, turned over and there dismantled by one Floyd Herring under an arrangement with defendant that the salvaged parts be sold and the proceeds divided. Herring went to the place to dismantle the car and found defendant had already removed some casings and other parts; the inference being that they were taken by Herring and defendant to Lawton and sold. When defendant was found in possession of this car, he told the sheriff he did not know anything about it, but later contradicted this statement. The defense is that defendant’s connection with transporting the car was entirely innocent; that he did not know the ear was stolen until in the afternoon of the day after it was taken and after the asportation was complete; that a week before he had talked with Fallin about getting a car with which to do some work for defendant; that he arranged with Fallin at Frederick to take him to his place in the country. He admitted substantially the other facts stated. Defendant previously had been twice convicted for grand larceny and had served terms in the penitentiary; Fallin had. also served a term in the penitentiary.

The first contention is that the evidence is insufficient. As hereinbefore summarized, the evidence is mainly circumstantial, but the proved and admitted facts are sufficient under the general rule that where there is competent evidence from which a jury may reasonably and logically arrive at the guilt of one accused of crime, this court will not weigh the evidence. It is generally said that possession of recently stolen property is not of itself sufficient to sustain a conviction, but is only a circumstance to be considered along with the other facts and circumstances; that unexplained possession creates an inference of guilt, which, with other incriminating circumstances, may be sufficient to warrant conviction. The evidence that defendant left Frederick in the nighttime in this stolen car, with other circumstances narrated, is sufficient to sustain the conviction.

Complaint is next made that there is no proof of venue in Tillman county, it being the theory of defendant that he had no knowledge the car was stolen until the next day when it was in Jackson county. So far as the evidence is concerned, defendant’s connection with the asportation of the car from Frederick to the place where it was wrecked is a sufficient proof of venue in Tillman county, although defendant denies he then knew the car was stolen and believed Fallin was rightfully driving it. This was a question of fact for the jury, and if the case were otherwise free from error, the verdict would be! iipheld, since Venue need not be proved beyond a reasonable doubt. Ward v. State, 13 Okla. Cr. 81, 162 Pac. 232; Jentho v. State, 19 Okla. Cr. 434, 200 Pac. 251.

The most serious question is that the court erred in bis instructions to the jury, particularly in No. 4. The defendant requested instructions, in substance, that if they should find from the evidence, beyond a reasonable doubt, that defendant knew nothing of the larceny of the Car, and did not aid, abet or participate in the taking and hád nothing to do therewith, they should acquit him. This part of the request the court gave. Defendant further requested the court to instruct if they should find that defendant, after the act of taking and transporting said property was complete, had salvaged and sold a part thereof, such fact would not render him guilty of larceny. This request was denied, but in No. 4 the court instructed the jury as follows:

“But should you find that the defendant had knowledge that said car had been stolen, and with such knowledge in his possession, thereafter participated in, or aided, abetted, assisted or advised in the dismantling of said car and disposing of the parts derived from said dismantling; then it will be your duty to return a verdict of guilty as charged.”

This instruction does not cover the defendant’s theory, which is that he had no knowledge of the theft of the car until after the asportation had ceased. A defendant is entitled to affirmative instruction applicable to his testh mony based upon the hypothesis that it is true, when his testimony affects a material issue of the case. Shears v. State, 20 Okla. Cr. 193, 281 Pac. 816. The refusal of the requested instruction was error.

This giving of that part of No. 4 above quoted is also error. The larceny of property does not deprive the owner of the legal right of possession, and until the asportation has terminated the larceny is a continuing offense, and when the property is taken in one county and carried into or through other counties, a prosecution may be had in any county into which or through which the property is taken. Bivens v. State, 6 Okla. Cr. 521, 120 Pac. 1033; Howard v. State, 9 Okla. Cr. 337, 131 Pac. 1100; Reed v. State, 22 Okla. Cr. 141, 210 Pac. 311. If the defendant was concerned with the original taking or knowingly aided or abetted in the taking or the asportation, he would be equally guilty with the taker and he may be prosecuted in either Tillman, Kiowa, or Jackson county. By instruction No. 4, however, the jury are told that the mere knowledge by defendant that the car had been stolen, if he then should assist, advise or abet in dismantling the car and disposing of the parts, he would be guilty of the larceny in Tillman county. This is not the law. Under this instruction the jury may have believed defendant’s testimony that he did not know that the car was stolen until after the asportation was complete, and then, if with such knowledge, he aided in removing and selling some of its parts, he would be guilty of the original larceny. After a larceny has been completed and the asportation terminated, one who has not participated in, nor aided or abetted the larceny or the asportation, but who then, with knowledge that the property has been stolen, aids in secreting, selling, destroying, or dismantling the stolen property, is not guilty of the larceny. Pass v. State (Ariz.) 267 Pac. 206; Tucker v. State (Tex. Cr. App.) 2 S. W. 893; Boyd v. State (Tex. Cr. App.) 6 S. W. 853; People v. Disperati (Cal. App.) 105 Pac. 617; Reed v. State, supra; Vann v. State, 21 Okla. Cr. 298, 207 Pac. 102. The case is reversed.

DAVENPORT, P. J., and DOYLE, J., concur.


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    ELIZABETH BARCUS v. STATE.
    No. A-8799.
    May 3, 1935.
    (44 Pac. [2d] 897.)
    Jno. V. Beveridge, Kelly Brown, and A. M. deGraf-fenreid, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Mayes county of manslaughter in the first degree and was sentenced to serve a term of ten years in the state penitentiary.

Defendant, Blue Rigsby, and John Doe were jointly charged with the murder of G. W. Barcus, the husband of the defendant A severance was had and Rigsby was tried separately, convicted of murder, and sentenced to life imprisonment, which judgment was affirmed by this court. Rigsby v. State, 55 Okla. Cr. 61, 24 Pac. (2nd) 1016.

Only one contention is made: That the evidence is insufficient to sustain the judgment. The evidence on the part of the state is that about 10 o’clock on the day of the homicide defendant left the place of abode at Muskogee and with the household goods in a truck moved to Siloam Springs, Ark. That some time prior to this separation she had been carrying on a liaison with her co-defendant, Rigsby, and on the night preceding her leaving Muskogee, she had a quarrel with her husband and at the time she moved' away she left word to be conveyed to him that she had gone to Oklahoma City. She drew $800 which she had on deposit with the Federal Postal Savings and delivered it to Rigsby, who arranged for the truck to take her household goods.

She was at Siloam Springs when the homicide was committed. The state does not claim that she had any personal connection with it. Deceased was killed by Rigs-by and John Doe, an unknown person, about midnight, December 12, 1931. Soon thereafter the body was discovered, and the following night the sheriff and another officer went to the place where the defendant was staying, arrested her, and returned her to' Pryor. The evidence tending to connect defendant with the homicide is entirely circumstantial and rests on the motive and inference arising from her connection; intimate relations, and misconduct with Rigsby, including the delivery to him of the money drawn from her savings account and the removal of the household goods from the place of abode, without the knowledge of her husband; to her seeming indifference to his death, and to1 statements made at and subsequent to her arrest. These statements are in substance that she was moving to Arkansas to get the benefit of a liberal divorce law, and if she had any connection with his death she would be a fool to- admit it. Defendant did not take the stand and offered no evidence.

Tbe killing of deceased by Rigsby and bis companions not being controverted, we deem it unnecessary to make a more full statement of tbe surrounding facts. Upon a consideration of tbe entire record, we are satisfied tbe evidence of a conspiracy between defendant and Rigsby and bis companion, or of an aiding or abetting them by defendant, does not attain that degree of certainty required to support a judgment of conviction. There is, it is true, a strong suspicion arising from tbe relations of defendant and Rigsby, and tbe circumstances surrounding her separation from deceased, but a conviction cannot be based on suspicion and inference; there must be evidence from which a jury can reasonably and logically find tbe guilt of accused. Tbe evidence in this case and tbe inferences to be drawn, from it are of too- weak and inconclusive a character to sustain the judgment. Davis v. State, 18 Okla. Cr. 112, 193 Pac. 745.

Tbe case is reversed and remanded, with instructions to discharge defendant.

DAVENPORT, P. J., and DOYLE, J., concur.


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    J. S. CASTELL v. STATE.
    No. A-8778.
    May 3, 1935.
    (44 Pac. [2d] 898.)

      J. Q. A. Harrod and Laynie W. Harrod, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith G. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, Avas convicted in the district court of Oklahoma county of manslaughter in the first degree and his punishment fixed at seven years in the state penitentiary.

At the time charged defendant and his family and Lee Roy Craig and his family lived in Linwood addition to Oklahoma City, in apartments opposite each other, with a driveway between. Some ill feelings had arisen between them from the use of the driveway and from some trivial difficulty between their children. On the date charged, about 6 o’clock p. m., a personal altercation between deceased and his wife on the one hand and defendant and his wife on the other occurred on this driveway. Defendant came out Avith a pistol on his person and with a broomstick in his hand, and Craig came out with the roller of a window shade in his hand. After a slight scuffle, Craig started to leave the scene, either running or in a fast walk, and defendant fired one shot, the bullet entering the back of Craig and coming, out above the heart, inflicting a Avound which resulted in death in a few minutes.

The defendant interposed the plea of self-defense and sought to justify the killing by proof of threats by deceased and testimony that at the time deceased left the scene he said, in substance, he was going to get a gun to kill defendant. This was contradicted by the state’s testimony.

The defendant was well represented and the issue of self-defense was fully and correctly submitted to the jury. The evidence for the state amply sustains a conviction of manslaughter in the first degree.

This case falls squarely within the settled rule of this court that where the evidence is conflicting and that on the part of the state is such the jury may reasonably and logically find the guilt of accused, it will not set aside a conviction on the ground it is not warranted by the evidence. In such case, weight of the evidence and the credibility of the witnesses is for the jury.

The case is affirmed.

DAVENPORT, P. J., and DOYLE, J., concur.