text:
    STATE v. G. A. JOHNSON.
    No. A-2849.
    Opinion Filed February 1, 1919.

      (177 Pac. 926.)
    GAMING — Offenses—Slot Machine. A slot machine which delivers an article the sale price, of which is the coin deposited in the, machine, and in addition thereto sometimes delivers certain trade checks ranging in quantity and value from two to 20 times the value of the coin deposited, and also indicates before each play what the machine will deliver on that particular play, hut does not indicate what will he delivered on any subsequent play, is prohibited from being set -up and operated in a place of business under sections 4 each of chapter 12S. Sess. Laws 1912, and chapter 2(i. Sess. Laws 1910.

      Appeal from County Court, Coal County; C. M. Threadgill, Judge.

    G. A. Johnson was acquitted in the county court of Coal county of the offense of setting up and operating a slot machine in violation of law, and the State appeals on a reserved question of law. Question decided in favor of the State.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty Gen., and G. T. Ralls, Co. Atty., for the State.
   MATSON, J.

This is an appeal taken by the state of Oklahoma from the county court of Coal county upon a question of law reserved by the state for decision by this court in the trial of one G. A. Johnson, who was charged by information as follows:

“That said G. A. Johnson did willfully, knowingly, and unlawfully set up and operate in his place of business on the Main street and at the corner of Main street and Ohio avenue, Coalgate, Oklahoma, a slot machine for the purpose of having the same and allowing the same to be played by others for money, property, checks, credits, and representatives of value contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

At the conclusion of the state’s evidence, the court gave the jury a peremptory instruction to acquit the defendant, because the evidence was insufficient to sustain a conviction. To this action of the court the state reserved an exception, and here contends that the trial court erred in instructing the jury to acquit the defendant; the state contending that the crime charged in the information was clearly made out by the state’s evidence.

The statute upon which this information is based reads as follows:

“Any person who sets up, operates or conducts, or who permits to be- set up, operated or conducted in or about his place of business, whether as owner, employee or agent, any slot machine for the purpose of having or allowing the same to be played by others for money, property, checks, credits, or any representative of value shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than twenty-five dollars, nor more than one hundred dollars,-.or by imprisonment in the county jail for a term of not more than thirty days, or by both such fine and imprisonment.” (Section 4, c. 128, Sess. Laws 1913; section 4, c. 26, Sess. Laws 1916.)

The evidence on the part of the state to support the charge was brief, four or five witnesses being introduced, whose testimony was in effect the same as that of the witness Albert Collier, which is as follows:

“Q. Your name is Albert Collier? A. Yes, sir.
“Q. You live in Coalgate, Okla. ? A. Yes, sir.
“Q. How long have you lived here? A. Three years.
“Q. What is your occupation? A. Carpenter.
“Q. Do you know the defendant, G. A. Johnson? A. Yes, sir.
“Q. How long have you known him ? A. About three years.
“Q. Do you know where he had a place of business in a little house on wheels down in front of the barber shop? A. Yes, sir
“Q. Were you ever in that little house? A. Yes, sir.
“Q. When was that? A. I was in there often.
“Q. Along about February, this year? A. Yes, sir.
“Q. Will ask you what he had in that little building? A. Cigars, tobacco, chewing gum, cold drinks, slot machine.
“Q. Did you play on the slot machine? A. Yes, sir.
“Q. What did you play the machine with? A. Nickels.
“Q. What would you get? A. Chewing gum and trade checks.
“Q. What 'was the most you could get for a nickel? A. Chewing gum.
“Q. When you played, what did you get? A. Checks sometimes, and chewing gum every time.
“Q. Did you play any checks? A. Yes, sir.
“Q. Where did you get those checks? A. Out of the machine.
“Q. What would you play to get checks? A. Nickels.
“Q. How many would you play to get checks? A. from two to 20.
“Q. How many did you get at a time? A. Don’t think I ever got more than four.
“Q. Would you always get checks? A. No, sir.
“Q. The checks you got playing, what did you do with them? A. Put them back in the machine, and sometimes you would trade them.
“Q. What would you buy? A. Tobacco and cigarettes.
“Q. That was here in Coalgate, Okla.? A. Yes, sir.
“Q. And the defendant, Arthur Johnson, had charge? A. Yes, sir.
“Q. He was there when you were playing? A. Yes, sir.
“Q. Did you see any one else playing there that day? A. I couldn’t say.
“Q. He was running openly? A. Yes, sir.
“Cross-examination by Mr. Trice:
“Q. What date was that? A. I couldn’t say.
“Q. You couldn’t say it was February, March, or April? A. Along in the winter some time.
“Q. When you put nickels in the machine, you could tell what you were going to get before? A. Yes, sir.
“Q. Would you always get a package of chewing gum? A. Yes, sir.
“Q. Could you tell the brand ? A. No, sir.
“Q. Was it Spearmint? A. I believe it was.
“Q. When you put nickels in the slot machine, you would get a package of chewing gum? A. Yes, sir.
“Q. Could you tell how many trade -checks you were going to get? A. Yes, sir.
“Q. Sometimes you wouldn’t get any trade checks? A. No. si1-
“Q. That was the only kind of machine you saw in there? A. Yes, sir; in operation.
“Redirect by Judge Ralls:
“Q. What you played and wouldn’t get checks, what was your object in playing? A. Chewing gum. .
“Q. When you got checks, you wouldn’t get chewing-gum? A. Nlo, sir; I could tell whether I was going to get checks, and I could tell every time what I was going to get.
“Q. Then what was your object in playing? (Objected to by the defendant. Objection sustained.)
“Q. When the indicator would indicate that you would not get any checks by playing, what was your object in playing at that time? A. Well, my object in playing was to get the indicator in shape so that I could get some.
“Q. Now, if the indicator showed you were not going to get checks, would you keep up playing? A. That was my idea; I could play until I went broke.
“Q. Were you playing the machine for — when the machine showed you were not going to get checks the next turn, why would you continue playing? (Defendant objects as incompetent, irrelevant, and immaterial. Objection sustained.)”

The state’s evidence in effect^ established that the defendant set up in his place of business and conducted a certain slot machine, which was played by certain of his customers by placing nickels in a slot which had the effect of operating the machine, and at each operation the person playing the same would get a package of chewing gum, and at some times, in addition to the chewing gum, the operator would get from two to 20 trade checks of the value of 5 cents each in trade at that place. These trade checks could be used either in purchasing cigars, tobacco, cigarettes, cold drinks, or chewing gum which the defendant kept at his place for sale, or else they could be played back into the machine; the testimony being that the trade checks would operate the machine as well as nickels.

The question here presented is:

“Is a slot machine wherein the operator or person playing same receives, at each play or operation, the equivalent of the amount invested in property (chewing gum), but at some operation in addition thereto receives certain trade checks ranging in value according to the number received by the play from 10 cents to one dollar, prohibited from being conducted under the terms of the foregoing statute; the evidence also showing in this connection that before the play is started the operator can tell from the machine’s index exactly whether he will receive only chewing gum or also trade checks in addition thereto on the play, but not what the index may show for any subsequent play?”

The trial court held that such a state of facts was insufficient to sustain a conviction under the statute, instructing the jury to return a verdict of not guilty against the defendant, which was done, and the defendant discharged.

By enacting the statute against slot machines, the Legislature intended to prohibit the setting up, operating, or conducting of any kind of a slot machine for the purpose of having or allowing same to be played by others for money, property, checks, credits, or any other representative of value. It was intended to prohibit the placing of such a machine in any place of business as an invitation to the public to play same for money or other property; to invite the public generally to take a chance of getting something for nothing.

The reason of the trial court for holding the evidence in this case insufficient does, not appear from the record. The court sustained the motion to direct a verdict of not guilty, merely commenting that it was the opinion of the court that “the testimony is insufficient to make out an offense against the defendant under the law.” It is evident to this court that, in directing a verdict of not guilty in this case under the facts proven by the state, the trial court erred.

In the case of Ferguson v. State, 178 Ind. 568, 99 N. E. 806, 42 L. R. A. (N. S.) 720, Ann. Cas. 1915C, 172, the Supreme Court of Indiana held:

“ A slot machine which delivers an article worth the coin deposited, and sometimes tickets for additional chances in addition thereto, and indicates before each transaction what will be delivered, does not prevent its being within the operation of the statute prohibiting gaming devices.”

The Indiana statute above construed is not as specific as the statute of this state prohibiting the operation of slot machines for money or other representatives of value. In the Ferguson Case, the argument was advanced that there was no element of chance in the operation of the machine, that the player always got the value of his money and knew before each play exactly what he was going to get; but in reply to such argument the court said:

“In the present case, the fact that the machine would indicate the reward before it was played makes no difference. The inducement for each play was the chance that by that play the machine would be set to indicate that it would pay checks on the following play. The thing that attracted the' player was the chance that ultimately he would receive something for nothing. The machine appealed to the player’s propensity to gamble, and that is the device at which section 2474 is directed. The inventor of the machine has endeavored ‘to adhere to the letter of the law while violating its spirit,’ and, as always must be the result, has failed. The evidence shows that the machine was a gaming device within the intent of the Legislature as expressed in section 2474, supra. Lang v. Merwin, supra [99 Me. 486, 59 Atl. 1021, 105 Am. St. Rep. 293]; Re Cullinan, supra [114 App. Div. 654, 99 N. Y. Supp. 1097]; Meyer v. State, 112 Ga. 20, 51 L. R. A. 496, 81 Am. St. Rep. 17, 87 S. E. 96; Lytle v. State (Tex. Cr. App.) 100 S. W. 1160; Horner v. United States, 147 U. S. 449, 37 L. Ed. 237, 13 Sup. Ct. 409; State v. Woodman, 26 Mont. 348, 67 Pac. 1118; Territory v. Jones, 14 N. M. 579, 99 Pac. 338, 20 L. R. A. (N. S.) 239, and case note, 20 Ann. Cas. 128; Fielding v. Turner [1903] 1, K. B. 867, 72 L. J. K B. N. S. 542, 67 J. P. 252, 51 Week. Rep. 543, 89 L. T. N. S. 273, 19 Times L. R. 404, 20 Cox, C. C. 531.”

Also in the case of State v. McTeer, 129 Tenn. 535, 167 S. W. 121, it was held that a slot machine operated like the one involved in this case was a gambling device within the meaning of the Tennessee statute. In the body of the opinion, it is said:

“The question raised is whether the slot machine described is a gambling device. We are of the opinion that it is. It is insisted by the defendant that this is not a sound conclusion, because the indicator always shows what the player is to get before he deposits his nickel; hence it is said there is no-element of uncertainty, and no opportunity of obtaining disproportionate gains, or sustaining loss, by the hazard of anything of value. It is true there is no hazard of loss, if we assume, as we think we should, that each package of gum is the fair commercial equivalent of five cents; but there is the prospect of obtaining very greatly disproportionate gains. The indicator may show a package of gum when the player deposits his nickel, and this he will get when he works the lever; but at the same lime the indicator may present for the next play either one of the numbers 2, 4, 6, 8, 10, 12, 14, 16, 18, or 20, representing checks of the value of 5 cents each. If, for example, the number shown is 20, the player, by depositing 5 cents, will obtain 20 checks, worth $1. So for the other numbers. The lure is the opportunity of winning from 10 to 100 cents by the deposit and expenditure of 5 cents. There must be at least one play before any one of the numbers mentioned is shown on the indicator, and there may be many, and it is not known which number will appear, nor at what time, nor after how many plays. In case the checks are shown on the indicator, the owner of the machine stands to lose on that play the difference between 5 cents and the denomination of the check which the machine may show; that is, the-loss of from 5 cents to 95 cents. We may assume that the dealer makes some profits on each package of gum and that the profits thereon, and the profits on the goods to be sold in exchange for the checks, will show an ultimate profit for him on all the contents of the machine, and this whether the contents be exhausted by one player or by many successive players. So there will be no ultimate loss to him. However, there is always the chance that any single player, by the expenditure of 10 cents, though making two plays of 5 cents each, may obtain, not only a package of gum worth 5 cents, but checks worth from 10 cents to 100 cents, and so in proportion for many plays, and a corresponding loss to the owner of the machine on such individual deals. The player is induced to continue by the fact that he is getting 5 cents’ worth of gum for each play, with always the chance just ahead that the next presentation of the indicator Will give him the opportunity of making a profit of from 100 to many times that per cent. We think this shows the machine is a gambling device. It is not essential that there should be the chance of loss to the players, as well as of extraordinary or greatly disproportionate gain. Bell v. State, 5 Sneed [Tenn.] 507; Eubanks v. State, 3 Heisk. [Tenn.] 488.”

In the case of State v. Googin, 117 Me. 102, 102 Atl. 970, the Supreme Court of Maine held a slot machine identical with the one operated by this defendant a device of chance within the meaning of the statute of that state against the operation of such devices. In the body of the opinion, it is said:

“But respondent says the gum machine involves no element of chance; that each play of the machine is a complete transaction, and shows precisely what the player is to receive, and what the machine is to give; that there is no contract, express or implied, that the player shall have a second or third play to avail himself of the opportunity of obtaining the trade checks; that, this being so, there is no element of chance. But the fallacy of this contention is found in the assumption that the machine deals with the individual, whereas by its method of operation, of necessity, it deals with the public. It is an automatic device, the operation of which is planned in every detail before it is put to use. It is then placed in public places, to be automatically worked. It is the dumb agent of its owner, inviting the public to operate it as often and as many times as any one of the public may please. We find no limitation upon the right of the same person to operate over and over again. It is undoubtedly this unlimited right that allures the patronage that makes the operation of the machine profitable. If the player does not win the first time, he knows he can repeat till he does win. • It is therefore quite apparent that it is the prize, and not the gum, that invites the public. Accordingly, while each play is a completed act, it may be only preliminary to the future play, by the same person, which will bring forth the coveted prize; the chance in this operation being, not in the visible play, which may show only a package of gum, but in the invisible play by which the machine may turn up a visible prize to be captured on the next play. If a play turns up no premiums, neither party loses. If it does turn up a premium, then the machine loses on that particular play.
“But it is said there is no loss to the machine in the end, and consequently no chance, because the machine has calculated the profits and losses beforehand, and set apart a certain part of the profits to be allowed its customers. True, but not to all customers alike. Some get something; some get nothing; some more; some less. In this lies the test of what this device means, and the theory upon which it is conceived and worked, namely, to induce' customers to play the machine with the expectation of getting something for nothing — it matters not what customer is successful — in that it is perfectly obvious that one part of the' public paj^s in money for what another part of the public gets in prizes. In other words, this machine is a device designed to play one part of the public against another part of the public, for the purpose of inducing the whole public to take the chance of gain, which in the end results in producing to its owner the predetermined profits.”

See, also, Allen v. Commonwealth, 178 Ky. 250, 198 S. W. 896.

The foregoing well-reasoned authorities support the conclusion that the evidence introduced on behalf of the state was sufficient to authorize the jury to convict the defendant of having set up, operated, and conducted in his place of business a slot machine which was played by others in violation of the foregoing statute. It was error, therefore, for the trial court to direct the jury to acquit the defendant, and the question of law reserved by the state, as to the sufficiency of the evidence in this case to support a conviction for the crime of unlawfully setting up and operating a slot machine, is decided in the state’s favor.

The trial court’s error of law in directing the jury to return a verdict of not guilty against the defendant having operated in his acquittal and discharge, this court is powerless to remand the cause for any further proceeding. We may only decide the question of law involved for the future guidance of trial courts in similar cases.

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


source: Caselaw Access Project

author: ARMSTRONG, J.

license: Public Domain

text:
    KEITH UNDERHILL v. STATE.
    No. A-2790.
    Opinion Filed February 4, 1919.
    (177 Pac. 929.)
    1. OBSTRUCTING JUSTICE — Prosecution—Conviction. To sustain- a prosecution under section 2258. Rev. Laws 1910. for tlie suppression of evidence in tlie nature of a written instrument, such instrument must be an instrument. which can be legally used as evidence, as alleged in the information.
    2. SAME — Sufficiency of Evidence. The evidence in this case carefully considered, and found insufficient to support the conviction of the plaintiff in error.

      Appeal from County Court, Pontotoc County; 1. M. King, Judge.

    Keith Underhill was convicted of suppressing evidence, and he appeals.
    Reversed with instructions to dismiss prosecution.

      Cratvford & Bolen, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Keith Un-derhill, was by information, with one Houston Dumas, jointly informed against and convicted of the offense of suppressing evidence, and each was sentenced to imprisonment in the county jail for six months and to pay a fine of $100 and costs. To reverse the judgment rendered, defendant Keith Underhill prosecutes this appeal. There was no appeal by defendant Dumas.

This is a prosecution under section 2258, Rev. Laws 1910, which reads as follows:

“Any person who maliciously practices any deceit or fraud, or uses any threat, menace or violence, with intent ■to prevent any party to an action or proceeding from obtaining or producing therein any book, paper or other matter or thing which might be evidence, or from procuring the attendance or testimony of any witness therein, or with intent to prevent any person having in his possession any book, paper or other matter or thing which might be evidence in, such suit or proceeding, or prevent any person being cognizant of any fact material thereto from producing or disclosing the same, is guilty of a misdemeanor.”

The evidence tends to show that J. H. Dumas feloni-ously took from the office of the county attorney a sworn written statement made by him (Dumas), which he had previously delivered to the said county attorney, and which said statement is as follows:

“County of Pontotoc,
“Ada, Oklahoma.
“McDonald 2 Heifer yearling calves.
“Some time after Dick'Aycock quit working for me he came to my house and got Loyd Robinson, they went and got two white yearlings and brought them to my place — he said to me, here is two yearlings I want to sell them. He also said I got them down south of here. He said that he had picked them up. He gave me the impression and I understood that he had stolen them. He said that he would see that they were alright. That if anything came up he would take it. That he would go with me to Hickory and help me ship them. The next morning he came over and helped me carry them over to Keith Underhill’s. I had some cattle over there that I had for from Keith that I was going to ship. T paid him $35.00 there (check), after I got over to Keith’s we talked together. Dick told us all that he had got them down south of there in a pasture. I didn’t know whose they were. Keith snoke up and says, it won’t do to ship these calves, you will get caught with them. He said if you will swap them to me, I will take care of them, they won’t expect to find them here with my bunch. Keith says papa has a calf he wants to trade and he says I will swap one of these calves for his and no body will notice this calf being there with his white face cattle.
“Keith then swapped me a little white faced calf for the other one and he gave me his father’s calf for the other. He then made the remark that they wouldn’t ever be noticed there, being one at his father’s and one at his place. These I understand were McDonald calves, and were afterwards found by him. I shipped the other two with my stuff. I also shipped a calf the same day that I got from Dick that he said he had stolen from F. M. Snyder. This was a red heifer calf with white spits in his forehead. I paid him $12.50 for that with check.'
“J. H. Dumas.
“Sworn to before me.
“H. J. Brown, J. P.”

The evidence shows that, on the day after the sworn written statement was missed from the office of the county-attorney, the said instrument was found in the possession of the defendant Keith Underhill, and that Dumas told the officer who found the paper on the person of defendant' Underhill that he (Dumas) got the paper and gave it to Mr. Underhill. There was no evidence to show that the defendant Underhill advised or in any wise aided the defendant Dumas in abstracting the said paper from the office of the county attorney, and there is no evidence that there was any case pending against Dumas for larceny.

The defendant Underhill demurred to the evidence, and requested the court to direct the jury to render a verdict of acquittal as to him, for the reason that there was no legal evidence tending to connect him with the offense charged, which demurrer was overruled, and requested instructions for acquittal denied, and exceptions saved.

The gravamen of the offense charged was the suppression of legal evidence which was to be used in evidence on behalf of the state in the case of State of Oklahoma v. Houston Dumas, No. 838, District Court of Pontotoc County, Oklahoma, and, unless the paper which was taken from the office of the county attorney could be used as legal evidence in that case, the defendant Underhill could not be legally convicted of the offense charged in the information.

It is insisted on the part of the state that the paper .abstracted was a confession voluntarily made of the offense charged in the said case, and hence legal evidence that could be used in that case. The information does not allege in any specific language the facts and circumstances constituting the offense with which Dumas was charged in case No. 838, in which it was charged the sworn statement was intended to be used. From the face of the information the court is unable to determine whether or not the sworn statement was material to the issues in that case, or would have been competent evidence therein. The record in this court shows that case No. 838 was a prosecution against Dumas for larceny oí two calves, while the sworn statement in'no way is a confession on the part of Dumas of the larceny of any property. The nearest it approaches to a confession at all is for the crime of receiving stolen property, and not larceny. This court has held in numerous decisions that the crimes of larceny and of receiving stolen property are two separate and distinct offenses. See Ex parte Harris, 8 Okla. Cr. 397, 128 Pac. 156. Hence it is apparent that the alleged. confession, even if voluntarily made, could not have been admissible in a prosecution for larceny of live stock against Dumas, which is charged in . case No. 838.

We are of the opinion that the evidence is insufficient to support the conviction of the defendant Keith Under-hill, as there is no evidence that the instrument abstracted from the office of the county attorney might be legal evidence in the case alleged in the information, and therefore the court committed reversible error' in refusing to instruct the jury to acquit the defendant Underhill.

The judgment of the trial court as to Keith Under-hill is reversed, with instructions to dismiss the prosecution as to him.

DOYLE, P. J., and MATSON, J„ concur.


author: MATSON, J.

text:
    WILLIAM M. GARRETT v. STATE.
    No. A-3002.
    Opinion Filed February 15, 1919.
    (178 Pac. 269.)
    1. CONTINUANCE — Absence of Witness — Ruling. Where application is -made for continuance by the defendant at the October, 1916, term of court on account of the absence of a witness who is a nonresident of the state, and again at the February, 1917, term of court, tbe application is again presented on account of the, absence of tbe same witness, wbo is still a nonresident of the state, and no effort was made between tbe October, 1916, and February, 1917, term to take the deposition of such witness, tbe continuance was properly denied.
    2. SAME — Denial of Continuance — Prejudice,. Where a continuance is asked in a rape case on account of the absence of a witness by whom it is intended to impeach the prosecutrix, and the prosecutrix admitted, on the trial, the making of all the-material statements desired to be proven by such absent witness,, it is clear from tbe record that no prejudice resulted to defendant by reason of the absence of such witness from the trial.
    3. APPEAL AND ERROR — Verdict—Review. Where the evidence-reasonably supports the verdict, a judgment of conviction rendered thereon will be sustained. It is the exclusive province of the jury to decide controverted questions of fact, and to determine the inferences properly to be drawn from the evidenca

      Appeal from District Court, Washita County; Thomas A. Edivards, Judge.

    William M. Garrett was convicted of the crime of rape in the first degree, and sentenced to serve a term of 16 years in the penitentiary, and he appeals.
    Judgment affirmed.

      Stoan C. Burnette, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

It is first contended that the court erred in overruling defendant’s application for a continuance. This application is based upon the absence of two witnesses for the defendant, namely, William Conner, a brother of the prosecutrix, and Mrs. Estella Platt.

The application in substance alleged that the witness William Conner is a resident of Chillicothe, 111.-, and is a material witness for the defendant, in that the defendant expects to prove by said witness that the prosecutrix, Nellie Conner, made statements to the witness that she was going to make trouble for the defendant, and that the witness inquired of said Nellie Conner what she intended to do prior to the time she made the charges against the defendant, and that, after the charges were made against the defendant, the said Nellie Conner told the witness that now he could see what she had in mind at the time she made the statement to him, prior to the time she made the charges against the defendant.

It is not necessary to consider any question in connection with the application for continuance on the ground of the absence of William Conner, except that of whether due diligence was-used to obtain his presence at the tidal, or to take his deposition in behalf of the defendant; he (Conner) being a nonresident of the state.

It is the duty of the defendant to use all reasonable diligence in order to secure the attendance of witnesses in his behalf, and it must be made to appear from the application for a continuance that he has used due diligence to procure the attendance of his witnesses, and the application must set out facts fully which constitute such diligence. Bryan v. State, 5 Okla. Cr. 542, 115 Pac. 619; Hopkins v. State, 9 Okla. Cr. 104, 130 Pac. 1101, Ann. Cas. 1915B, 736; Davis v. State, 10 Okla. Cr. 169, 135 Pac. 438.

The record in this case shows that this application for a continuance was presented to the court on the 16th day of February, 1917, and it' further appears that at the October, 1916, term of said court the defendant asked a continuance in this case on account of the absence of this particular witness. No reasons are given why defendant did not take the deposition of said witness between October, 1916, and February, 1917, terms of court; the witness being without the jurisdiction of the trial court, it was impossible to compel his attendance at the trial at any term of court. If trial courts were to grant continuances because of the absence of witnesses who were residents of other states, and whose attendance on court could not be compelled, where there is no showing whatever of diligence or attempt made to take the deposition of the absent witness on behalf of the defendant, then it would be practically impossible for the state to ever bring a criminal case to trial. Applications for a continuance should be granted only for the purpose of procuring the testimony of witnesses material either to the prosecution or the defense, and not merely for the purpose of delaying trial.

The application with reference to the witness Estella Platt shows that the purpose of having such witness in attendance upon court was to impeach the prosecuting witness, Nellie Conner. It also appears from the record that the said witness, Estella Platt, was present in court at a former trial of this case, that the prosecuting witness admitted having made every statement attributed to her in the presence of Mrs. Platt, and that the defendant did not use Mrs. Platt as a witness on the former trial because of such admissions by the prosecuting witness; and the record further shows in this trial that the prosecuting witness made the same admissions that were made by her on the former trial. It is therefore clear that, had Mrs. Platt been present in court, any evidence by her relative to such conversations on the part of the prosecutrix would have been clearly inadmissible because of such admissions.

It is therefore clear, from the entire record in this case, that the trial court did not abuse its discretion in overruling the application for a continuance. Where a continuance is asked on account of the absence of an impeaching witness, and the record shows that the witness sought to be impeached by such absent witness admitted all the material facts desired to be proven by such absent witness, the defendant is not prejudiced by the action of the trial court in overruling the application.

The only other question involved in this appeal is the sufficiency of the evidence to sustain a conviction. Counsel for defendant quotes liberally from several cases decided by this court in which the judgments of conviction in rape cases were reversed because not sustained by competent trustworthy evidence.

An examination of the cases cited by counsel for the defendant discloses that the cases relied upon were cases in which the prosecuting witnesses testified to an .act or acts of sexual intercourse committed by force. The charge in this case is not rape by force, but rape upon a girl of the tender age of 13 years. The defendant was her stepfather. The evidence of the prosecutrix is, not that she submitted to the act because of force, or that she was prevented from resisting by reason of threats of great bodily harm accompanied by apparent power of execution. The prosecution was not based upon either of such theories, but upon the ground alone that prosecutrix was under the age of consent at the time of the commission of the act.

The fact that prosecutrix testified that defendant threatened to kill her, should she expose the illicit relation between them, or refuse to submit thereto, was not material to the offense charged, but was admissible as tending to explain her failure to make disclosure thereof. The prosecutrix, being an inmate of defendant’s home and of tender years, would not be expected to act with that degree of discretion and circumspection chargeable to an older woman. We see nothing in her failure to disclose this outrage until outside protection was afforded her inconsistent with the guilt of this defendant.

The evidence of the prosecutrix bears the earmarks of truthfulness, and she is corroborated by the testimony of a reputable physician who made an examination of her person within 48 hours after one" of the alleged occurrences, and the examination disclosed a bruised, swollen, and distended condition of the private parts, such as would be made by a blunt instrument, and a discharge was found in the vagina which said doctor testified to be the semen from a man.

It is not necessary to enter into a lengthy discussion of the harrowing details of this crime. It is sufficient to say that, after a careful examination of the entire record, the court is convinced that there is ample evidence to sustain the conviction.

Finding no prejudicial error in the record, the judgment is affirmed.

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


author: PER CURIAM.

text:
    A. ZACKIE v. STATE.
    No. A-3482.
    Opinion Filed February 15, 1919.
    (178 Pac. 271.)
    ABATEMENT OF PROSECUTION — Death of Accused. Where accused dies ponding Hie determination of liis appeal, the case, will be abated.

      Appeal from Superior Court, Creek County; Gaylor R. Wilcox, Judge.

    A. Zackie was convicted of a violation of the prohibitory liquor law, and he appeals.
    Order that proceedings abate.

      Harris, Howard & Nowlin, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

The plaintiff in error, A. Zackie, was convicted at the May term of the superior court of Creek county, sitting at Drumright, on an information charging the possession of intoxicating liquors with intent to sell the same, and in accordance with the verdict of the jury was sentenced to be confined for two months in the county jail and to pay a fine of $500. From the judgment rendered on May 16, 1918, an appeal was attempted to be taken by filing in this court on November 18, 1918, a petition in error with case-made.

Counsel for plaintiff in error has filed a motion to abate, supported by the affidavit of Gaylor R. Wilcox, the trial judge, showing that on the 3rd day of December, 1918, said plaintiff in error, A. Zackie, departed this life at Drumright.

In a criminal prosecution the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death, and, where it is made to appear to this court that plaintiff in error has died pending the determination qí his appeal, the case will be abated.

It is therefore adjudged and ordered that the proceedings in this case be abated, and the same is remanded, with direction to the trial court to enter its appropriate order to that effect.


author: .DOYLE, P. J.

text:
    TOM WILSON v. STATE.
    No. A-2955.
    Opinion Filed February 20, 1919.
    (178 Pac. 490.)
    INTOXICATING LIQUORS — Unlawful Conveyance — Sufficiency of Evidence. In tlie prosecution for conveying intoxicating liquor^ the evidence considered, and held sufficient to sustain the conviction, and that no material error was committed on the trial.

      Appeal from County Court, Okmulgee County; Mark L. Bozarth, Judge.

    Tom Wilson was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.

      Joe S. Eaton and W. M. Pfeiffer, for plaintiff in error.
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   .DOYLE, P. J.

Plaintiff in error, Tom Wilson, was convicted in the county court of Okmulgee county on a charge that in said county and state, on the 24th day of November, 1916, he did unlawfully transport and convey 40 quarts of whisky from some place unknown to the New York Garage, on Morton avenue, in the city of Okmulgee, and his punishment was fixed at a fine of $250 and confinement in the county jail for 90 days. From the judgment rendered on the verdict he appeals.

The only assignment of error presented in the brief is that the verdict of the jury is not supported by sufficient evidence and is contrary to law. A substantial statement of the testimony of each witness who testified in the case is as follows:

The state’s first witness, M. Shefle, testified that he conducted a garage business on Morton avenue, city of Okmulgee; knew the defendant and he kept his car at his place; that on the night of the day alleged the car was driven into his garage; that the next morning the officers appeared and searched the car. On cross-examination he .stated that it was dark and a tall fellow drove the car; that he did not know the defendant well enough to say that it was not Tom Wilson who “was driving the car.

M. H. Bowman, chief of police of Okmulgee, testified that he knew the defendant, and with Worth Wright and Mr. Thompson, manager of the garage, and Mr. Shefle, he searched the defendant’s car in the New York Garage, and found 40 quarts of whisky therein. On cross-examination he stated that in a conversation defendant denied having any knowledge of his car being there with whisky in it.

■ Orvel Thompson testified that he was present when the whisky was found in defendant’s car, which was a Dodge roadster; that a day or two later he had a conversation with the defendant in which the defendant told him that it was his car, and that he brought the whisky' there for the Eagles’ Lodge; that he could not get any one up that night, and he just drove the car into the garage and left it.

Worth Wright testified that he knew the defendant, and assisted in the search of the car, and found 40 or 50 quart bottles of whisky in the car.

This was all the evidence in the case.

We think the foregoing statement shows that the evidence sustains the verdict. When the jury returned their verdict finding the defendant guilty, and there is evidence tending to sustain every essential allegation of the information, the conviction will not be reversed in the absence of prejudicial error.

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

ARMSTRONG and MATSON, JJ., concur.


text:
    T. E. CLINGAN v. STATE.
    No. A-3008.
    Opinion Filed February 20, 1919.
    (178 Pac. 486.)
    1. HOMICIDE — Manslaughter in the First Degree — Sufficiency of Evidence. Evidence considered, and held sufficient to support a conviction for manslaughter in the first degree.
    2. APPEAL AND ERROR — Evidence—Review. Where error is assigned based on the exclusion of proffered testimony by the defendant. and the brief of counsel for defendant (plaintiff in error) admits that the ruling of the trial court in excluding such evidence was correct, there is no contested question for decision by the appellate court.

      8. EVIDENCE — “Kes Gestae.” Spontaneous declarations springing out of and contemporaneous with the principal fact sought to be proven, and which are made at a time so near to it as to preclude the idea of deliberation and fabrication, whether they be declarations of a deceased or of a defendant or of bystanders, arc admissible as part of the “res gestae.”
    4. APPEAL AND ERROR — Exclusion of Evidence — Materiality— Reversal. The refusal to permit a witness for defendant to testify to a statement by defendant shortly after the difficulty, upon the ground that such statement was a self-serving declaration, will not bo held to be sufficient ground for reversal where it is apparent that the theory of the defendant was fully, fairly, and impartially submitted to the jury, and such excluded evidence claimed to be part of the res gestae is only cumulative of other evidence admitted bearing upon defendant's frame of mind at the, time of the fatal difficulty, and it is not likely that the evidence excluded would have changed the result.
    5. TRIAL — Refusal of Requested Instructions. It is not error to refuse requested instructions where the instructions given fully cover the law of the case in a manner not unfavorable to the defendant.
    6. APPEAL AND ERROR — Reversal — Miscarriage of Justice. Where it is apparent that the defendant has liad a fair and impartial trial on a valid accusation which will support a conviction of the crime for which the jury found defendant guilty, and that the evidence and law in support of the defense interposed were fully, carefully, and clearly presented to the jury, this court will not reverse a .-judgment of conviction even in a closely contested case wherein the evidence is conflicting, unless it is made reasonably (o appear that the errors complained of resulted in a miscarriage of justice or deprived-the defendant of some constitutional or statutory light.
    7. APPEAL AND ERROR — Conviction—Sufficiency of Evidence. In view of Rev. Laws 1910, sec. 5873. limiting jury to questions of fact, and section 5905. relating to requisites of charge, the jury being the sole judges of facts, where there is sufficient evidence, to reasonably support verdict, the Criminal Court of Appeals will not reverse a conviction.

      Appeal from District Court, Pushmataha County; C. E. Dudley, Judge.

    T. E. Clingan was convicted of manslaughter in the first degree, and he appeals.
    Judgment affirmed.

      S. E. Welch, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen.; for the State.
   MATSON, J.

This appeal is from a conviction had in the district court of Pushmataha county, in which the plaintiff in error was charged with the murder of N. T. Horton, on or about the 29th day of February, 1916, and found guilty of manslaughter in the first degree. On November 24, 1916, the court, in accordance with the verdict of the jury, rendered judgment and sentenced the defendant to imprisonment in the penitentiary for a term of four years. On May 21, 1917, an appeal was perfected by filing in this court a petition in error with case-made attached.

The first error complained of is that the trial court erred in overruling the motion for new trial on account of the insufficiency of the evidence to sustain the verdict and judgment.

A substantial statement of the evidence is as follows:

The defendant, T. E. Clingan, was the principal of the Sugar Loaf school, located near Darwin, Okla. There were three rooms to this schoolhouse. The defendant taught in the main room of the building; the other teachers being Miss Kerr and Miss Oehler.

The deceased, N. T. Horton, had three daughters attending this school, the youngest of whom, Tommie, was in Miss Oehler’s room. Some two weeks prior .to the date of the difficulty, Miss Oehler had administered a whipping to Tommie, and from that time until the date of the difficulty, Tommie had not been able to attend school.

On the day of the difficulty, the deceased, who was somewhat under the influence of liquor, made two trips to the schoolhouse. The first time he went to the defendant’s room shortly after school had taken up in the afternoon, and asked defendant if he knew that his little girl had been sick ever since she had received the whipping two weeks before, and inquired what he should do about it. Defendant advised him, to go to court with it. Deceased then received permission from the defendant to take his two other daughters home with him, which he did.

A short time later, during the afternoon recess,' the deceased again came to the schoolhouse. In the schoolyard, before he entered the building, he had a conversation with one of the pupils in which he stated that he had come to see Miss Oehler, the teacher who had given his daughter the whipping. He went into the room in which the defendant taught. Defendant was at that time helping one Nellie Hager solve a problem in arithmetic. They were sitting at the first desk in the center of the room. Deceased walked up to where they were, and placed his left hand on the desk in a leaning position. He asked defendant if he had said that “that thing (referring to Miss Oehler) didn’t give my little girl 39 licks,” and when defendant denied making such statement, deceased repeated it. Defendant then told deceased that he did not want to have any trouble with him, and rose from the seat, passing very close to the deceased, and went back to the stove, some five or six feet distant. When he reached the stove, defendant picked up a wooden club which had been used for a poker, which was three or four feet long. Deceased had followed the defendant down to the stove, and was standing within two or three feet of him. A number of pupils had gathered around, and the son of the defendant was standing between the defendant and the deceased taking to the deceased. The defendant, upon turning around after he had picked up the poker, said, “Stand back, boys,” or, “Stand back, please,” and immediately struck the deceased across the head with the poker, and in so doing, according to one witness, he also struck his son, who was a larger man than the deceased, on the shoulder. The deceased, Horton, never regained consciousness, an! died two or three days later from the effects of the blow.

The defendant claims that the deceased had an open knife in his overcoat pocket, and was holding same, with his right hand just above the pocket, leaving the blade of the knife in the pocket. Defendant's son also claims to have seen the knife when the deceased first came into the room the second time. However, none of the other witnesses saw the knife until after the deceased had fallen on the floor. The knife was found then with the point of the blade sticking in the overcoat pocket, the handle being a few inches from the right hand of the deceased. The deceased made no demonstrations with the knife, however, and the conversation above detailed was all that was heard by any of the witnesses except the defendant and his son. The deceased was standing still, apparently listening to what the defendant’s son had to say, when he was struck. Some of the witnesses testified that the defendant took a step toward the deceased just before striking him.

There are some conflicts in the evidence. Mr. Rich, one of the school directors, a witness for the ■ defendant, testified that deceased, on his way to visit the schoolhouse the second time, had a conversation with witness, in which the deceased told' him that he (deceased) was going “to get the defendant, and that he had just sharpened his knife in preparation for the affray.” However, one Mack, who was also present at the time of this alleged conversation, denied that any such threats were made by the deceased.

The defendant admitted that he had been convicted of manslaughter in the state of Arkansas.

Under the state’s evidence, we think the defendant was at least guilty of manslaughter jn the first degree, and the jury being the sole judges of the facts, where there is sufficient evidence to reasonably support the verdict, this court will not reverse a judgment of conviction. Sections 5873 and 5905, Rev. Laws 1910; Love v. State, 12 Okla. Cr. 1, 150 Pac. 913; Smith v. State, 12 Okla. Cr. 25, 151 Pac. 694; Etter v. State, 11 Okla. Cr. 208, 144 Pac. 560; Davis v. State, 10 Okla. Cr. 169, 135 Pac. 438; and many others. Therefore, we deem this assignment of error without substantial merit.

Another assignment, of error relied upon for reversal relates to the refusal of the trial court to permit the defendant to prove by the witness Miss Elva Oehler, a teacher in the school, who had previously given a whipping to deceased’s daughter, Tommie Horton, that such whipping was neither unusual nor the cause of the child’s illness. It is argued in this connection that, because the court erroneously permitted the state to prove by Tommie Horton that Miss Oehler had whipped her about two weeks before this difficulty, it was very prejudicial for the court to exclude, under the circumstances, Miss Oehler’s testimony regarding such whipping, because Tommie Horton had testified that she had been sick after she received that whipping. Counsel’ admit in the brief filed in behalf of the defendant that all the evidence relative to the whipping of the child was incompetent, irrelevant, and immaterial. It is not contended, therefore, that the ruling of the trial court was incorrect in excluding the proffered testimony of Miss Oehler.

The admission in the brief of counsel that this evidence was entirely incompetent and immaterial renders it unnecessary for the court to cite authority to that effect. It is apparent that the trial court did right in excluding any evidence which tended only to open an avenue of investigation into an immaterial matter, and also the opinion of the witness as to whether the whipping was unusual or the cause of the child’s sickness was equally incompetent. The ruling of the trial court excluding such proffered testimony was correct.

In his third assignment of error defendant contends that the court erred in refusing to admit the testimony of the witness Miss Oehler in regard to a statement alleged to have been made by the defendant to her just after the blow had been struck. The record on this matter is as follows:

“Q. You heard a noise, you say? A. Yes, sir.
“Q. What did you do? A. I stood there by the door until I heard the man fall, and then I opened the door and went in the other room, in the room where he was; yes, sir.
“Q. When you went into the room, what did you observe? A. I observed Mr. Horton lying on the floor, and Mr. Clingan standing erect by the body.
“Q. And whereabouts was Mr. Horton lying? A. Well, he was lying in the middle aisle, east of the stove, with his head opposite the front side of the.row of desks, you know.
“Q. And where were his feet lying? A. His feet were west.
“Q. Which was nearer the stove, his head or feet? A. His feet were. '
“Q. About how far were they from the stove? A. Oh, not more than two feet, I don’t suppose. I didn’t notice the distance closely.
“Q. Did you see any weapons of any kind in there at that time? A. Yes; when I went in, I did.
• “Q. All right; state what it was. A. The first word that was spoken when I went in„to the room—
“By Mr. Utterback: Wait a minute. We object, if the court please.
“By Mr. S. E. Webb: That was a statement made by Mr. Clingan immediately after the tragedy, and as such—
“By Mr. C. A. Welch: We think it is entirely incompetent what he said.
“By the Court (to counsel) : Just come here a moment. (At this time the court and' counsel confer out of the hearing of the jury and court reporter.)
“By Mr. S. E. Webb: Q. All right, go on and state what was first said when you entered, the room. A. When I heard the falling of the body, I opened the door between my room and the principal’s room, and entered the room used by Mr. Clingan, and the man was lying on the floor, and Mr. Clingan was standing by him, and he said to me, ‘Miss Oehler, thére was what he was trying to kill me with,’ and he pointed to the man’s body, and the knife was lying by his side.
“By Mr. Utterback: Now, if the court please, we move to exclude that statement.
“By the Court: It will be sustained, and the jury are instructed to disregard it. (Excepted to by defendant.)”

In this connection defendant contends that this statement was a part of the res gestae, and should not have been excluded from the consideration of the jury, because it tended to show the motive of the defendant.

Heretofore it has been said by this court that —

“What constitutes res gestae is possibly the most complex and difficult question in criminal law.” (Price v. State, 1 Okla. Cr. 364, 98 Pac. 450.)

It has also been said that courts may only deal with the subject in the light of the facts of each particular case when the occasion arises. Carnes v. State, 14 Okla. Cr. 585, 179 Pac. 475.

Spontaneous, declarations springing out of and contemporaneous with the principal fact sought to be proven, and which are made at a time so near to it as to preclude the idea of deliberation and fabrication, whether they be the declarations of the deceased or of the defendant,'■ are generally considered to be admissible as part of the res gestae. It is necessary to consider in this connection whether the refusal of the trial court to admit this declaration was prejudicial under the circumstances in this case. This evidence tended solely to explain the condition of mind of the defendant at the time and immediately after the fatal difficulty. The defense interposed was self-defense, and it was competent and proper for the defendant to show by one of his witnesses, who was present immediately following the difficulty, that the defendant had declared upon seeing such witness, “There was what (pointing to the knife) he was trying to kill me with,” provided such declaration was spontaneous and explana-^ tory of the principal fact so as to amount in reality to a verbal act. An examination of the record in this case indicates to this court that it would perhaps have been better for the trial court to have admitted this tesimony in view of the fact that there was some doubt as to the admissibility of the defendant’s exclamation or declaration on the ground that it constituted and was a part of the res gestae. The question presented is one difficult of correct decision, but this court is ñot given authority to reverse a judgment of conviction merely because the trial court may have committed error against the defendant.

Under section 6005, Rev. Laws 1910, it is incumbent upon this court to say in its opinion:

“That after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”

The evidence which was excluded was cumulative, because it was already in evidence before the jury that the defendant, at the time he struck the blow which resulted in th death of deceased, did so, according to his testimony and that of his son, who was present at the time, for the reason that the deceased was advancing upon him with an open knife, and threatening to kill him with it. All the witnesses who were present at the time of the difficulty testified also that an open penknife was found partially concealed in deceased’s right overcoat pocket, and that his right hand was resting close to the handle of this knife after he (deceased) had fallen to the floor. There was very little -controversy, therefore, about the fact of the deceased having an open penknife in his pocket at the time he was struck.

The court instructed the jury fully upon the right of the defendant to defend himself against an unlawful attack by the deceased, even to the extent of taking life if necessary to that end. The defendant received the full benefit of this theory in the instructions given to the jury. It is impossible for anybody to read this record and not reach the conclusion that the theory of the defendant was fully and ably presented to the jury, and that the jury was not in any way misled in that there was any misunderstanding as to the right of the defendant to protect himself against an unlawful attack by the deceased with a knife, and also that the defendant advanced as a defense that he in good faith believed he was in danger of such an attack at the time of the killing. This theory having been fully presented to the jury, and the evidence excluded being purely cumulative thereof, we fail to see wherein defendant could have been injured by its exclusion.

There were two distinct theories in this case, both fully presented to the jury by the court’s instructions: The theory of the state that the killing must have been the result of heat of passion, that the act was perpetrated in a cruel and unusual manner, and by means of a dangerous weapon, which would make the defendant guilty of manslaughter; and the other, the theory of the defendant, while admitting the delivery of the blow that resulted in the death of the deceased, contending that he was acting to protect himself from an impending attack by the deceased with a knife, which would have entitled him to an acquittal. Either theory is supported by some evidence and it was the province of the jury to reconcile this evidence, and determine, if possible, which theory was true and which untrue. The jury having accepted the theory of the state, and there being ample evidence to support, same, we are not authorized to reverse this judgment merely because all of the evidence which might have been competent to support the defendant’s theory was' not afforded the jury, especially where that excluded was entirely cumulative of that introduced.

Therefore it cannot be said that the rejection of this testimony by the trial court resulted in a miscarriage of justice, or prejudiced the substantial rights of the defendant, and, under the provisions of the foregoing statute, we are not at liberty to reverse this judgment of conviction on that ground. Addington v. State, 8 Okla. Cr. 704, 130 Pac. 311.

The fourth and fifth assignments of error relate to the refusal of the trial court to give certain requested instructions covering the defendant’s right to defend himself. It is admitted that:

“We take no exception to the instructions of the learned trial court in this case. We think they are excellent as general instructions, and that they were altogether fair to this defendant as such, and as far as they went, but it was the duty of the trial court to have instructed the jury as to all of the law applicable to this case, to the testimony, and to the theory of the defense, and more especially after the defendant specifically requested the giving of five special instructions which we have just presented in- this brief, and, as we view the law, the court should cover such matters in his general instructions.
“We take the view and we urge that each of the five requested instructions should have been given to the jury, but if the form of the same or any one of the same was objected to by the court, then the substance of said instructions should have been given to the jury as the law applicable to this case with reference to each and every one of the matters mentioned and set out in the five requested instructions.”

Counsel for defendant assert that the trial court did not fully cover the law applicable to the defense interposed, but fail to point out wherein the court’s instructions are unfavorable or lacking in respect to presenting the law of self-defensé. Not a single exception was taken to any instruction given. We have carefully examined the charge of the trial court, and consider it one of the ablest and fairest expositions of the law applicable to the evidence that has ever been presented to this court in any appealed case. The law contained in the instructions requested by counsel for the defendant was fully covered in the instructions given, and in a manner very favorable to the defendant. It was not error, therefore, for the trial court' to refuse to give the requested instructions, because covered by those given. Ryan v. State, 8 Okla. Cr. 623, 129 Pac. 685.

We have carefully examined the record in this case, and, while it was a closely contested case on the facts, it is impossible to say that the defendant did not have that fair and impartial trial which is guaranteed to him under the Constitution and laws of this state. Under the state’s theory, and the evidence in support thereof, he was guilty of manslaughter in the first degree. The jury accepted this theory as true, and rejected the .theory of the defendant, also supported by evidence, that the killing was in his necessary self-defense.

• This court is not at liberty to substitute its judgment on questions of fact for that of the jury, especially where the record is as free from error as is this. Defendant had the benefit of able counsel, and the evidence and law in support of his defense were fully, carefully, and clearly presented to the jury at every step throughout the trial. The trial court, after having seen all the witnesses, and heard their testimony, overruled the motion for a new trial, being, no doubt, convinced that the verdict was good and the proper one under the evidence.

For the reasons stated, the judgment is affirmed.

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


text:
    WILLIAM TUBBY v. STATE.
    No. A-3367.
    Opinion Filed February 20, 1919.
    (178 Pac. 491.)
    1. TRIAL — Instruction—Theory of Defense — Evidence. It is error for the trial court to fail and refuse to instruct on the law applicable to a theory of the defense which the evidence tends to support when the defendant requests it.
    2. HOMICIDE — Murder — Premeditation — Voluntary Intoxication. Voluntary intoxication is to he considered by the jury in a.prosecution for murder in which a premeditated design to effect death is essential, with reference to its effect upon ability of the defendant at the time to form and entertain such a design.
    3. SAME — Manslaughter in First Degree. A person who commits a homicide while so drunk as to be incapable of forming a premeditated design to kill, if he had formed no purpose to commit the crime prior to the time he became so intoxicated, is not guilty of murder, but is guilty of manslaughter in the first degree.
    4. SAME — Degree — Evidence — Instruction. In a prosecution for murder, the court should submit the case to the jury for consideration upon every grade of felonious homicide which the evidence reasonably tends to support. Where (here was evidence of the 'intoxication of the defendant which if believed, tended to show that defendant was intoxicated to the extent of lacking the mental capacity to form a premeditated design to take life at the time of the homicide, it was prejudicial error to refuse to submit to the. jury an instruction which would authorize the conviction of the defendant of manslaughter in the first degree.

      Appeal from District Court, Carter County; W. F. Freeman, Judge.

    William Tubby was convicted of murder, and his punishment fixed at death, and he appeals.
    Reversed and remanded, with directions.
    William Tubby, a Mississippi Choctaw Indian, together with one Jim Stribbling, another such Indian, were jointly informed against in the district court of Carter ccrunty, charged with the murder of one Matt Hooper, which was alleged to have occurred in that county on or about the 15th day of February, 1918.
    A severance of trial was asked by the defendants, and the state elected to try William Tubby first. His trial resulted in a conviction of murder on the 8th day of March, 1918, the jury assessing the death penalty.
    Tubby and Stribbling both lived near the town of Kiowa, in Pittsburg county, Okla., and had come to Ard-more some two or three days prior to the commission of this homicide. During that time each of them had procured for himself a six-shooter, and continued to carry same concealed on his person until up to the time of their arrest.
    On the 15th day of February, in the afternoon of said day, Stribbling and Tubby took the Santa Fe train north to the town of Berwyn, a village and station located on said railway about nine or ten miles north of the city of Ard-more. Stribbling had some business to attend to in Berwyn, Tubby merely accompanied him as a companion. After the business was transacted, about 3 o’clock in the afternoon, which was about time for the south-bound Santa Fe’ train to depart for Ardmore, these parties went to the depot and found that the south-bound train was nearly three hours late. After having learned that the train was late, they repaired to a booze joint, and proceeded to drink between them two quart bottles and six pint bottles of Choctaw beer, after which they returned to the depot and took the south-bound train, which left Berwyn about 7 o’clock that evening.
    The evidence on the part of the witnesses for the state is to the effect that while on the train between Berwyn and Ardmore, both Stribbling and Tubby were very boisteroifs and unruly, each drawing his revolver and threatening passengers on the train. Both-appeared to be drinking some, but were able to walk and seemed to be in possession of their faculties of speech, sight, and hearing to such an extent that they realized fully their surroundings, hut were imbued perhaps with the idea that they would demonstrate to those assembled in the particular coach in which they were riding that they were bad men and properly armed to carry into execution any desire of which they might become possessed, or any threat which they might make.
    No fatal trouble occurred, however, until the train reached and was stopped for'the station at Ardmore. Here quite a crowd was leaving the train, and apparently an equal number prepared to take it. . The train was a vestibule train, and this defendant, together with his chum Stribbling, started to leave the smoker, which was one of the front passenger coaches, at the north entrance to said coach. Stribbling was in front of defendant Tubby, and when they reached the vestibule of said coach, a young man, smoking a cigarette, started to get on. Stribbling asked him for the cigarette, and the young man handed it to him and stepped on up into the vestibule. The deceased, who was also smoking a cigarette, followed closely behind the young man who had given his cigarette to Strib-bling, whereupon Tubby, who evidently' had noticed the performance by which Stribbling had got his cigarette from the other young man, demanded of deceased that he give him (Tubby) the cigarette that he (deceased) was smoking, but deceased refused to give Tubby that cigarette, saying that he wanted to smoke it himself. Deceased and Tubby were total strangers, and, so far as either knew, had never seen each other before. The fact that deceased refused to give Tubby his cigarette seemed greatly to anger Tubby, who immediately pulled out his revolver or pistcl and shot deceased through the body, causing him to fall, and inflicting a mortal wound, of which deceased died within a few hours.
    The defendant admits the shooting and his codefend-ant, Stribbling, who was a witness in defendant’s behalf, testifies that defendant, Tubby, fired the fatal shot, and that he (Stri'bbling) had nothing whatever to do with it, and was only endeavoring to keep Tubby out of trouble during the entire time from leaving Berwyn until up to the fatal difficulty. Tubby’s entire defense is based on the fact that he drank about three quarts of Choctaw beer during the afternoon of the day of the homicide between the hours of 3 and 7 o’clock, and became so thoroughly intoxicated thereby that he has no recollection whatever of the trouble or shooting, remembering nothing- from the time he left the booze joint in Berwyn until he found himself in jail in Ardmore the next day; that he had no design to kill deceased.
    About thirty minutes after the shooting, and while deceased was in a sanitarium in Ardmore, the officers took defendant into the presence of the deceased, and the deceased identified him positively as the person who fired the fatal shot, and said that he had not known defendant prior to the time of the difficulty, and had only refused to give defendant the cigarette he (deceased) was smoking when defendant shot him.
    Deceased was a farmer, a married man, 35 years old, who resided about two miles south of the town of Marietta, in Love county. He had been to Ardmore that day with bis brother, who had come to be examined for admission into the army, and was taking the south-bound train home at the time he was shot down by this defendant.
    There was no attempt to justify or excuse this killing. The only contention made in behalf of the defendant is that he was so drunk he was incapable of forming a premeditated design to take life. The legal questions involved are discussed in the opinion, which follows.

      Brovm & Williams, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

While numerous errors are assigned as grounds for a reversal of this judgment of conviction, in view of the disposition made by the court of this appeal, it is only necessary to discuss one of such grounds.

The principle is well established in this jurisdiction that it is error for the trial court to fail and refuse to instruct on the law applicable to a theory of the defense which the evidence tends to support when the defendant requests it. Crittenden v. State, 13 Okla. Cr. 351, 164 Pac. 675, and cases cited in the body of that opinion.

In this case the court limited the jury to a consideration of the defendant’s guilt or innocence of the crime of murder alone. The question of whether or not the defendant was guilty of manslaughter in the first degree was not submitted to the jury, although the defendant requested the court to give the following instructions, which were refused, exception saved at the time, and such refusal made grounds for a new trial, and urged in the petition in error here as grounds for reversal:

“You are instructed that manslaughter in the first degree is when the killing of another person is perpetrated without a design to effect death by a person engaged in the commission of a misdemeanor, or when perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon, unless it is committed under such circumstances as to constitute excusable or justifiable homicide.
“Refused. Exceptions allowed.
“W. F. Freeman, Judge.”
“Gentlemen of the jury, you are told that in the event you should find from the evidence beyond a reasonable doubt that the defendant in this case did kill the deceased as alleged in the information, and that such killing was done without malice or premeditation, in that event the killing would be manslaughter in the first degree, unless you should find the defendant not guilty as herein charged.
“Refused, and exception allowed.
“W. F. Freeman, Judge.”
“You are told that the punishment for manslaughter in the first degree is by confinement in" the state penitentiary for any term not less than four years.
“Refused. Exception allowed.
“W. F. Freeman, Judge.”

As bearing on the defendant’s premeditated design to effect death, and also as to whether it was error for the trial court to refuse to give the foregoing, as well as other requested instructions hereinafter set out, we quote the following from the testimony of Jim Stribbling, codefend-ant, and from the testimony of the defendant himself:

Jim Stribbling:

“Q. Where were you on the 15th day of February of this year? A. Well, I was at Ardmore until that 11:55 run going north.
“Q. Where did you go? A. Berwyn.
“Q. For what purpose? A. I went up there on some business.
“Q. Did you transact your business in Berwyn? A. Yes, sir.
“Q. What did you do, come back here? A. Yes, sir.
“Q. What time? A. I was aiming to get back on the 3 something that run through Berwyn; it was late; two hours and 40 minutes late at Berwyn.
“Q. About what time did the train leave Berwyn? A. About 6 something.
“Q. Was it before or after dark? A, It was getting dusk when we left Berwyn.
“Q. Did you get through with your business up there ? A. Yes, sir.
“Q. What time did you get through? A. Between 3 and 4 o’clock.
“Q. Who was your business with? A. Between Mr. Fisher and Ollie Sparks.
“Q. What Fisher, F. W. Fisher? A. F. S. Fisher.
“Q. The man that has been here on the jury this term of court? A. Yes, sir.
“Q. What time did you get through with them? A. Between 3 and 4.
“Q. Up to that time had you drank any beer or whisky that day? A. No, sir.
“Q. When you got through with these people what did you intend to do? A. Aimed to catch1 the train and come to Ardmore.
“Q. What did you find out? A. I went down and asked—
“Q. Did you find out whether the train was on time? A. Yes, sir.
“Q. Was it? A. No, sir.
“Q. After that what happened ? A. After we saw the train was late we went down and got some beer.
“Q. What kind of beer? A. Choctaw beer.
’ “Q. How much did you get? A. Two quarts and six small bottles.
“Q. From whom did you get it? A. Payton Little.
“Q. What does he do in Berwyn? A. Runs a restaurant and sells Chock.
“Q. Was this new or old Choctaw beer? A. Old.
“Q. What is the difference between old and new? A. The old Choctaw beer is stronger than the new.
“Q. How much did you drink? A. I drunk about a quart and two or three small bottles.
“Q. Who was with you? A. Bill Tubby.
“Q. He all the one with you? A. Yes, sir.
“Q. Where did you come from? A. Kiowa.
“Q. When did he come over here? A. He came over with me.
“Q. Where had you been? A. Kiowa.
■ “Q. When did you go up there? A. I moved up there three or four weeks ago.
“Q. Move from out here? A. Yes, sir.
“Q. Say he came down here with you? A. Yes, sir.
“Q. How long had he been here? A. Been here about a couple of days.
“Q. About two days? A. Yes, sir.
“Q. Been with you all the time? A. Yes, sir. i .
“Q. Had he been drunk at any time? A. No, sir.
“Q. Had he been drinking? A. No, sir.
“Q. You stated that you drank a quart and two or three small bottles? A. Yes, sir.
“Q. What became of the rest of it? A. Bill drunk ifc
“Q. State, if you know, what effect it had on him.
“The County Attorney: Object; incompetent, irrele vant, and immaterial.
“The Court: Overruled.
“A. Well, it had a right smart of effect on him at the time; it was strong, and he wasn’t used to drinking much of it.
“Q. Well, state what condition he was in before you left Berwyn. A. Getting pretty drunk when he left Ber-wyn; I had to lead him to the train when it come up.
“Q. Did you get him on the train? A. Yes, sir.
“Q. When you got him on the train, how was he? A. Pretty full when he got on the train.
“Q. Did you come to Ardmore? A. Yes, sir.
“Q. State whether or not he was drunk when you got to Ardmore or near Ardmore.
“The County Attorney: Object to that; calls for a conclusion of the witness.
“A. Yes sir.
“Q. What was he doing, if anything? A. He was just drunk, is all.”

We quote from the defendant’s testimony as follows:

“Q. What do you do fpr a living? A. I have been working in the mines for some length of time.
“Q. When did you come to Ardmore first? A. Wednesday, if I am not mistaken.
"Q. What day of the week was this trouble? A. Friday the 15th.
“Q. You came Wednesday before that Friday? A. No, we come Tuesday.
“Q. How did you come? A. On the Rock Island train.
“Q. Where did you take the train? A. Pittsburg.
“Q. Where did you get off? A. Ardmore.
“Q. How long did you stay in Ardmore? A. Until Friday noon; we got on the noon train.
“Q. Where did you go? A. Berwyn.
“Q. Had you ben to Berwyn before? A. We went to Berwyn the day before.
“Q. How long did you stay? A. Stayed just a short time.
“Q. Did you come back that day? A. Yes, sir.
“Q. Were you ever in the town of Thackerville? A. No, sir.
“Q. Never in Marietta? A. N'o, sir.
“Q. Ever live in that country? A. No, sir.
“Q. This last day you went to Berwyn, what did you do? A. Jim had some business to fix up of his and I went with him.
“Q. Had Jim been to your house? A. Yes, sir.
“Q. At that time you lived at your father’s? A. Yes, sir.
“Q. Have you any brothers ? A. Yes, sir.
“Q. How many? A. Five.
“Q. How many sisters? A. Three.
“The County Attorney: We object to all that; incompetent, irrelevant, and immaterial.
“The Court: I don’t see its materiality. Go ahead.
“Q. I will ask you, when you got to Berwyn, what you done? A. Well, Jim went to transact a little business over there with the bank.
“Q. Did you go with him? A. Yes, sir.
“Q. Who did he transact the business with? A. I don’t know the man; Fisher is his name, I think.
“Q. What time did you get through at the bank? A. Between 3 and 4 o’clock.
“Q. After you got through at the bank, what did you do? A. Went to the depot to see if the train was on time or late.
“Q. What did you find ? A. The train was two hours and 40 minutes late.
“Q. What happened ? A.- We walked back to this restaurant.
“Q. Up until that time had you. drank any beer or whisky? A. No, sir.
“Q. Were you sober? A. Yes, sir.
“Q. What happened at that restaurant? A. We went in the restaurant and got some beer.
“Q. How much? A. Two quarts and six little bottles.
“Q. How large were they, the little bottles ? A. I suppose they were pints; they .were pints.
“Q. What kind of beer was that? A. Choctaw.
“Q. Who drank it? A. Jim drank part, and I drank the rest.
“Q. Who drank the most? A. I drank the most.
“Q. State to the court and jury what effect it had on you, if you know. A. It absolutely run me crazy, that’s all.
“Q. I will ask you, before the train came, what condition you were in. A. I don’t remember when the train gol there.
“Q. Do you know how you got on the train? A. No, sir.
“Q. Had you been in the habit of getting drunk? A. No, sir.
“Q. Been in the habit of drinking this kind of stuff? A. Nio, sir.
“Q. When you are at home do you work?- A.'Yes, sir.
“Q. Had you had any trouble prior to this? A. Yes, sir; I got in a little trouble a few years ago.
“Q. What was it? A. I got into a little deal with some fellows selling some horses.
“Q. You were tried for it? A. Yes, sir.
“Q. What ■ happened ? A. After they found out I wasn’t guilty of what I was charged with they turned me loose.
“Q. Did you go.back home? A. Yes, sir.
“Q. I will ask you if you have been in the habit of drinking. A. No, sir.
“Q. Or carousing around? A. No, sir.
“Q. When you left Berwyn, did you know where you had started? A. No, sir; I knew that afternoon that I got this stuff that I inténded to come back to Ardmore.
“<¿. What happened then? Tell the jury. A. After I got this stuff?
“Q. Yes, sir. A. I don’t remember.
“Q. You and Jim drank it all? A. Yes, sir; we drank all the beer.
“Q. I will ask you where you were the next time you knew anything? A. I had started toward the depot back of this house.
‘ “Q. What, the restaurant? A. Started out the back door of this place.
“Q. What happened next ? A. I don’t know what happened next; I went crazy.
“Q. State to the jury whether or not you were drunk. A. I was crazy drunk; absolutely crazy; didn’t know a thing in the world.
“Q. Where were you when you .next knew anything? A. Next I was in jail.
“Q. What place? A. The county jail.
“Q. At Ardmore? A. Yes, sir.
“Q. When was that ? A. The next morning.
“Q. Had you been in jail before. A. No, sir.
“Q. Did you know anything about it until next morning? A. No, sir; I didn’t know where I was at until next morning. I asked the boys in jail where I was the next morning.
“Q. I will ask you if you knew this man that was killed. A. No, sir.
“Q. Had you ever seen him? A. No, sir.
“Q. Did you have any malice or ill will or hatred toward him? A. No, sir; I can’t hardly realize yet that happened; what they got me charged with.
“Q. I will ask you if you ever had any ill will or hatred against anybody. A. No, sir.
“Q. Did you intend to kill this man? A. No, sir; I never h"».d a desire in my life to liarm a living soul.
“Q Do you have any knowledge of shooting him or trying to kill him ? A. No, sir; none whatever.”

The defendant also requested the following instructions :

“You are instructed in this case that voluntary intoxication is no defense in a criminal case, but in your deliberations on the question of whether or not the defendant shot the deceased with the intent to kill him or to do him serio'us bodily harm, you may take into consideration the question of whether or not they were intoxicated to such an extent that they were incapable of forming an intent. And in this case if you find and believe from the evidence or if you entertain a reasonable doubt thereof' from all the facts and circumstances in evidence in this case, that the defendants at the time of the homicide were in such an intoxicated condition that they were incapable of forming an intent, and that they did not intend to kill and murder the deceased, then you are instructed that you should find the defendants not guilty of the crime of murder.
“Refused, and exception allowed.
“W. F. Freeman, Judge.”
“Should you find from the evidence in this case or have a reasonable doubt thereof that the defendant at the time he committed the crime complained of in the information was intoxicated to such an extent that he was not able to form within his mind the criminal design to effect the death of the deceased, then, in that event, should you find from the evidence that he did kill the deceased, it will be your duty to find the defendant guilty of manslaughter in the first degree, and acquit him on the charge of murder.
“Refused, and exception allowed.
“W. F. Freeman, Judge,.”

The only instruction bearing on the question of the intoxicated condition of the defendant at the time of the commission of the homicide given by the court is as follows:

“Defendant has testified for himself and has introduced other testimony to show that at the time of the alleged commission of the offense, that the defendant was intoxh cated to such an extent that he was incapable of knowing what he was doing.
“In this connection you are told that a person who voluntarily becomes intoxicated to such an extent and for such a period of time as to cause unconsciousness of his acts is not irresponsible under the law for the acts done by him while in such mental condition.
“You are further told that the fact of such intoxication, if yob should find that the defendant was so intoxicated, may be considered by you in mitigation of the punishment, should you find the defendant guilty.
“In the very language of the statute: ‘Homicide committed with a design to effect death is not the less murder because the perpetrator was in a state of anger or voluntary intoxication at the time.’ ”

Counsel for the defendant objected to and saved the proper exception to the foregoing instruction at the time it was given.

It is well established in this state that voluntary intoxication existing only temporarily at the time of the commission of homicide is no justification or excuse therefor; that in order to justify or excuse a killing by reason of alcoholism, a mental condition of the defendant must have-been produced thereby which rendered the defendant insane to such an extent as to deprive him of the mental capacity to distinguish between right and wrong as applied to the particular act, whether he was under the influence of intoxicating liquor at the time of the commission of the-act or not, and in order to relieve a defendant of criminal responsibility, the insanity produced by the use of intoxicating drinks must be such as to be settled or fixed, and not a mere temporary fit of drunkenness. Cheadle v. State, 11 Okla. Cr. 566, 149 Pac. 919, L. R. A. 1915E, 1031.

There is no evidence in this case that would either justify or excuse this defendant for the killing on the ground of insanity produced by the use of intoxicating liquor. But there is evidence on the part of nearly all of the state’s witnesses who were present at the time of the killing to the effect that the defendant was in a drunken condition. The evidence of the codefendant is that the defendant was drunk, and that it was necessary for the co-defendant, Stri-bbling, to assist him in getting on the tyain, and that he appeared to be drunker when the train reached Ardmore than when he boarded it at Berwyn. The defendant testified that he was “crazy drunk” at the time of the shooting; that he remembers nothing of it; that he did not know the deceased, had no malice in his heart against him, and did not intend to kill him or any other human being; that if he fired a shot at all, he did so without knowledge that he was doing it, and without any intent to- murder, all of which lack of design on his part is attributable, if at all, to bis intoxicated condition. The evidence also shows that this intoxicated condition of the defendant was voluntary, so that, being voluntary, he can neither justify nor excuse the killing on that ground.

But voluntary intoxication may be considered by the jury in a prosecution for murder alleged to have been accomplished with a premeditated design to effect the death of the deceased with reference to whether or not the defendant, at the time of the killing or shooting, entertained such a design. The testimony of the defendant, and. of his codefendant, Stribbling, considered in the light of the circumstances surrounding this killing', clearly places him within the rule last above stated; if their testimony is to be believed there was no premeditated design to kill.

It is the view and opinion of this court that under the circumstances it was error for the trial court to refuse, to instruct on manslaughter in the first degree in this, case, and on the question of intoxication with reference to its effect upon the mental condition of the defendant in regard to the formation of a premeditated design to effect the death. A state of intoxication, such as will reduce homicide from murder to manslaughter in the first degree, is a question1 of fact for the jury to determine, under proper instructions by the court.

That part of the court’s instruction No. 5 which states:

“You are further told that the fact of such intoxication (voluntary intoxication), if you should find that the defendant was so intoxicated, may be considered by you in mitigation of the punishment should you find the defendant guilty”

—does not fully or correctly state the entire law applicable to the facts in this case and necessary to be given- the jury for their information and guidance in giving a verdict. The trial court entirely overlooked the fact that intoxication, though voluntary, might be considered by the jury to show an absence of the premeditated design to kill for the purpose of determining whether the offense was murder or manslaughter in the first degree.

The evidence in this case and the principles of law applicable thereto are substantially in accord with those in Cheadle v. State, supra, which opinion contains a thorough, able, and full discussion of the law applicable to felonious homicide committed while intoxicated. The opinion in that case was filed May 1, 1915, and officially published in the latter part of the year 1915, over two years before this trial occurred. A doctrine so long established should have been familiar to the bench and bar by March, 1918.

This killing is greatly to be deplored. A young man, in the prime of life, married and. the head of a family, is shot down without justification or excuse by a drunken brute. Perhaps the jury would have discarded as untrue the story of the defendant, and have found him guilty of murder, even had the court instructed on manslaughter in ■the first degree; but as the court refused to so instruct, although requested to do so, and the evidence in behalf of the defendant would reduce the grade of felonious homicide to that of manslaughter in the first degree,- and the question of the extent of his intoxication being one of fact exclusively to be determined by the jury, the fact that the court deprived him of this theory of his defense was clearly prejudicial to him, and for that reason a new trial must be granted.

For the reasons stated, the judgment is reversed, and the cause remanded for further proceedings in accordance herewith, and the warden of the state penitentiary is instructed to surrender the defendant to the sheriff of Carter county, OMa., upon proper demand therefor.

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


text:
    DUGAN DUNBAR v. STATE.
    No. A-2846.
    Opinion Filed March 1, 1919.
    (178 Pac. 699.)
    1. CRIMINAL LAW — Habitual Criminal Ate&wkey;Instruction — First Conviction Occurring- Before. Passage of Act. The act of the Legislature providing that, upon a second or subsequent co’nviction of the prohibitory liquor laws, a greater iranishment may be imposed than is permissible for a first conviction, is enforceable against an accused whose first conviction occurred before the passage of such law.
    2. SAME — Possession of Liquors — Evidence. Evidence of general reputation of the place where intoxicating liquors wore found held not to be reversible error in this case.
    S. APPEAL AND ERROR — Conflicting Evidence — Reversal. Where the evidence is conflicting, but facts and circumstances in evidence are sufficient (o authorize the jury reasonably to infer that defendant is guilty of the crime charged, the judgment will not be reversed because of insufficient evidence.
    4. SAME — Erroneous Instructions. Where instructions given as a whole sufficiently cover the law of the. case, and are not prejudicial to tlie defendant, judgment will not be reversed because of alleged errors in certain paragraphs of the 'Court’s charge.
    5. JUDGMENT AND SENTENCE — Reversal—Verdict. The judgment and sentence must conform to the verdict. Where the law provides both fine and imprisonment as punishment for an offense, the trial court, on a general verdict of guilty, must sentence the defendant to both fine and imprisonment. Where, in such a case, only a sentence of imprisonment is imposed, the judgment will be reversed, with instructions to the trial court to re-sentence the defendant on the verdict returned in accordance with the law.

      Appeal from District Court, Kay County; W. M. Bowles, Judge.

      Dugan Dunbar was convicted of unlawfully having in his possession intoxicating liquors, with intent to sell, barter, and give away the same, and he appeals.
    Reversed, and cause remanded, with instructions.

      G. A. Chappell, for plaintiff in error.
    . 5. P. Freeling, Atty. Gen., and R. McMillan, Asst. . Atty. Gen., for the State.
   MATSON, J.

Dugan Dunba,!' was convicted in the district court of Kay county of having in the month of February, 1915, unlawful possession of intoxicating liquor after having been previously convicted' in the county court of. Kay county in May, 1911, for selling, bartering, and giving away intoxicating liquor, to wit, whisky. The conviction was under that provision of the prohibitory liquor statutes making the offense a felony where the conviction is for a second or subsequent violation of said statutes, commonly called the habitual criminal provision of said statutes.

The habitual provision of the prohibitory liquor statute took, effect in the year 1913 (page 46, c. 26, Sess. Laws 1913). Among other grounds relied upon for reversal is that the statute was passed and became effective subsequently to the former conviction of the defendant, alleged and proven to have been in May, 1911. This assignment of error is without merit. This court has decided adversely to the contention urged by plaintiff in error. Jones v. State, 9 Okla. Cr. 646, 133 Pac. 249, 48 L. R. A. (N. S.) 204.

It is also contended that the court erred in permitting the state to prove the general reputation of the place where intoxicating liquors were found in defendant’s possession, as being a place where intoxicating liquors were unlawfully sold. This contention is without substantial merit, there being some .evidence to the effect that such place was one commonly resorted to by divers persons who were in the habit of drinking intoxicating'liquors, and also evidence to the effect that defendant had made sales of intoxicating liquors at such place a short time previous to the time these particular liquors were found there. Ward v. State, 15 Okla. Cr. 150, 175 Pac. 557.

It is also contended that the evidence is insufficient to support the conviction.. The evidence is conflicting, but there are facts and circumstances in evidence sufficient to authorize the jury reasonably to draw the inference that the defendant was interested in the liquor found on the premises, which premises were proven to be under his con-. trol at the time, and that his purpose was to dispose of the same unlawfully.

Some complaint is also made of the instructions given, but as a whole they sufficiently cover the law of the case and are not prejudicial to the substantial rights of the defendant.

The jury found the defendant guilty, and returned a verdict to that effect, also stating in the verdict that the jury was unable to agree upon the punishment. The court, in rendering judgment, sentenced the defendant to serve a term of one year’s imprisonment in the state penitentiary. This is the minimum term of imprisonment in the penitentiary which may be given under the provisions of the habitual criminal act. Art Tucker v. State, 14 Okla. Cr. 54, 167 Pac. 637.

But said statute also provides, and as held in Tucker v. State, supra, it is mandatory that a fine of not less than $50 nor more than $2,000 be assessed in addition to the imprisonment provided. The punishment imposed by the court does not conform to the statutory provision, nor, therefore, to the verdict returned, in that it fails to impose a fine in addition to the imprisonment; The only error, therefore, is in the judgment and sentence imposed by the trial court on the verdict returned.

Section 6003, Rev. Laws 1910, gives this court power to—

“reverse, affirm, or modify the judgment appealed from, and may, if necessary or proper, order, a new trial. In either case, the cause must be remanded to the court below, with proper instructions, and the opinion of the court, within the time, and in the manner, to be prescribed by the rule of the court.”

Under the power given to modify the judgment, the court would have the right to reduce the sentence; but such power does not carry with it authority to add to the sentence imposed. This court, therefore, would have no authority under the statute above quoted to add the necessary fine to the imprisonment imposed by the trial court. The Legislature has not seen fit to give this court authority 11 reform or correct a judgment of the trial court.

We have no alternative, therefore, except, to reverse the judgment and sentence, and remand the cause with instructions to the trial court to resentence the defendant, by imposing.a fine and imprisonment, either in the county jail or in the penitentiary in conformity with the provisions of chapter 25, Sess. Laws, 1913, supra. Caudill v. State, 9 Okla. Cr. 66, 130 Pac. 812; 8 R. C. L. 239; State v. Tyree, 70 Kan. 203, 78 Pac. 525, 3 Ann. Cas. 1020; Enson v. State, 58 Fla. 37, 50 South. 948, 138 Am. St. Rep. 92, 18 Ann. Cas. 940; Murphy v. Com., 172 Mass. 264, 52 N. E. 505, 43 L. R. A. 154, 70 Am. St. Rep. 266.

For the reasons stated, the judgment of conviction is reversed, and the cause remanded to the district court of Kay county, with instructions to the judge.of said court to resentence the defendant, Dugan Dunbar, on the verdict of the jury returned in this case, by imposing such fine and imprisonment as in the judgment of said court shall be just and proper, within the limitations fixed by chapter 26, Sess. Laws 1913.

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


text:
    L. F. SOUTHERLAND v. STATE.
    No. A-3066.
    Opinion Filed March 1, 1919.
    (178 Pac. 698.)
    APPEAL ANI) ERROR — Failure to File Briefs — Affirmance—Rule of Court. When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and. if no prejudicial error appears, will affirm the judgment.

      Appeal from District Court, Marshall County; Jesse M. Hatchett, Judge.

    L. F. Southerland was convicted of rape in the second degree, and sentenced to serve a term of three and one-half years in the state penitentiary, and he appeals.
    Judgment affirmed.

      Kennamer & Coakley, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from a judgment of conviction of rape in the second degree, rendered in the district court of Marshall county on the 9th day' of January, 1917, in which defendant was sentenced to serve a term of three and one-half years in the state penitentiary. A petition in error, with case-made attached, was filed in' this court on the 7th day of July, 1917, and the cause was finally submitted at the November, 1918, term.

At the time the cause was submitted no counsel for the defendant appeared to orally argue same, and no brief has been filed in behalf of the defendant.

Pursuant to rule 9 of this court, we have examined the pleadings, instructions, judgment, and sentence, and have carefully considered the same in connection with the grounds of alleged error set forth in the petition.

We find no error prejudicial to the substantial rights of the defendant, and under the provisions of rule 9, the judgment is affirmed.