text:
    R. S. LUNA v. STATE.
    No. A-9183.
    Sept. 23, 1937.
    (71 Pac. 2d 1101.)

      Houston B. Teehee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

Upon an information charging R. S. Luna, Fred Luna, A. W. Clinton, Cleasey Clinton, and Roy Miller with the larceny of a steer, the property of Walter White, in Cherokee county on or about the 23d day of September, 1935, the defendants R. S. Luna and Fred Luna were jointly tried. The jury returned verdicts finding defendant Fred Luna not guilty, and finding, defendant R. S. Luna guilty, but failed to agree upon the punishment. His motion for a new trial was overruled February 1, 1936, and the court sentenced him to serve a term of four years in the state penitentiary.

To reverse the judgment, he appeals.

In the view we take of this case, it is only necessary to consider the assignment that this conviction was had contrary to the law, in that the evidence was insufficient to support the verdict and judgment of conviction, for the reason that the only evidence tending to connect appellant with the commission of the crime charged, was the testimony of Miller and Clinton, codefendants and confessed accomplices, and that therefore the court erred in refusing to direct a verdict of not guilty.

The testimony of Grover Bishop, sheriff, was to the effect that he gave the codefendant, Roy Miller, a deputy sheriff’s commission but did not make that fact known to the public; that acting on information that livestock was about to be stolen in the neighborhood where co-defendant A. W. Clinton lived, he proceeded there with Deputy Billy Ballew that night and stopped near Markes Dixon’s place, about a quarter of a mile from Clinton’s place. About 10 o’clock Bob Luna and Ms son, Fred Luna, came by in a truck hauling a yellow Jersey steer, and he arrested them.

Billy Ballew, deputy sheriff, testified that codefend-ant Boy Miller sent word to him by Markes Dixon that some livestock was to be stolen near there that night, and in company with the sheriff he went there that night; they stopped Bob and Fred Luna who were hauling a steer on a truck; that the sheriff asked Bob Luna where he got that steer. Bob said, “I bought it from Ab Clinton, gave him a $10 check for it,” then said something about giving $20 for it.

The alleged owner, Walter White, testified simply that the Jersey steer belonged to him, and that he did not give any person permission to take it. That after recovering the animal, he sold it for $18.

Ab Clinton, codefendant, as a witness for the state, testified that he lives near Cookson; that on or about September 23d, last year, codefendant Boy Miller came to- his home and told him he was getting a steer for Bob Luna, and Bob would give them $10 to get it up, and they got the steer; that about 10 o’clock that night Bob Luna and his son, Fred, came to his place; when that truck drove up Bob Luna asked where this steer was; Boy Miller told him in the hog lot shed, and with Boy Miller he took and loaded the steer in their truck. Miller asked him how much he was going- to give for getting up that steer, and Bob said $10. That he told Bob if he got caught with that steer to take it on himself, andi Bob told him not to worry; if he got caught he would. That Bob wrote a check by the light of the truck for $10, payable to the order of A. W. Clinton; that he did not see any money paid. The check, dated September 24, 1935, on the First National Bank of Fort Gibson, was signed, “W. ¡S. Luna,” indorsed, “A. W. Clinton,” and was admitted in evidence.

Mrs. Markes1 Dixon testified that she lives three miles north of Cookson; that she saw the Jersey steer at her place in a lot; that Rob Luna and his son Fred were there the day the steer was in the lot, and Luna asked her husband who owned the steer. Carol Harding answered and said it belonged to Phillip Cone. That the steer jumped out of the lot and went away; that Roy Miller was at her place that day and told her what was going to happen; that she knew that he was working down there for the sheriff, and Miller told her to tell her husband to tell the sheriff; that she told her husband, and her husband told the sheriff, that Rob Luna had made plans to get the steer.

Markes Dixon testified that he sold some cattle on or about the 23d of September, last year, and when they were lotted he found three steers there that did not belong to him; one was yellow with a crop off and a split in each ear. Carl Harding was there and said: “That is Phillip Cone’s steer”; that he knew the brand, and said he was going to town and would come by and take it that evening; that when Harding came back the steer was gone; that his wife said it jumped out of the lot; that Rob Luna was there that day; that his wife told him Luna was going to take the steer, and he told Billy Ballew to watch the Barber Road at the foot of Molly Brown Mountain; that Roy Miller would have the steer there that night between 9 and 10 o’clock for Rob Luna to load.

Roy Miller, on behalf of the state, testified that he lives three-quarters of a mile from Markes Dixon and helped Dixon to put his cattle up; three strays, one this Jersey steer, were put in the lot; that Rob Luna and his son were there that day and Mr. Harding was there in a truck with Bance Blair, and Harding said the Jersey steer belonged to Phillip Cone, that when he came back from town he would take it; that September 20, 1935, he was appointed a deputy sheriff and produced his commission signed, “G. C. Bishop, Sheriff”; that he had a conversation with Bob Luna at the Dixon lot after Harding told him who o wned the steer, and Bob told him he would pay him to get the steer up for him; he told Boh that he would have to have some help, and they decided to get Ab Clinton to help and to have the steer ready that night between 9 and 12 o’clock between the foot of the mountain, near the Barber Boad; that he told Mrs. Dixon about this and told her to get in touch with Billy Ballew; that evening he and Ab Clinton got the steer up, and he told Clinton it was a stolen steer; that he met Bob Luna and his son that night just above the Barber Boad and went with them on the truck to Ab Clinton’s place, where they had the steer in a shed, and with Ab-he took the steer out and put him in the truck; that Bob gave Ab a $10 check on the Fort Gibson bank.

On cross-examination he stated that he told Bob Luna that he did not want a check, he wanted the money; that he was going to get $5 out of the check; that he cashed the check because the officers told him that he could use whatever money he could get out of anybody.

At the close of the state’s case, counsel for appellant-moved the court to instruct the jury to return a verdict of not guilty, for the reason that the state has wholly failed to make out a case against this defendant.

On the part of the defense, Carol Harding testified that hei was at Markes Dixon’s place and called attention, to a steer that was in his pen as belonging to Phillip1 Cone; that the defendant, Rob Lnna, or Fred, his boy, were not there at that time or any time while he was there; that he was in attendance as a witness for the prosecution, but was not called by the state.

George Cole testified that he came to Dixon’s place in the car with Ranee Blair and heard Carol Harding say that a steer in the lot belonged to- Phillip Cone; that Rob Luna or his son Fred were not there while he was there; that Roy Miller, Mr. Sharp, Mr. Blair1, and Mr. Harding were there; that he heard Markes Dixon tell Mr. Blair, who said he was going to make a bid on the cattle, that this brown steer is a stray. Asked if he knew the general reputation of Roy Miller in the community where he lived for truth and veracity, answered “Yes”; asked what it was, answered, “It was bad.”

Jade Nichols, Billy Lambert, and Albert Lowery each testified that he knew the general reputation of Roy Miller for truth and veracity in the community; asked, “Is it good or bad?” replied that it was bad.

As a witness in his own behalf, Robert S. Luna testified that his business was buying cattle and hogs; that he was at Dixon’s place when his cattle for sale were in the lot; that Mr. Harding was not there at that time; that he met a man there who said his name was Roy Miller and had a conversation with him about buying some cattle. Miller said a fellow by the name of Clinton that lived on Elk creek, but was working over on the river about two miles from there at a club house, had a steer, a cow, and a heifer to sell; that he told Miller he would go over there the next morning and look at them, Miller said Clinton would not be at home in the morning, and he could not be there himself as he was going down to Snake Creek in the morning to work on the road. That Miller insisted on Ms coming that night, saying he would go down there and get the cattle up for him, and Clinton would be back home about dark; that he asked him the best way to get to the Clinton place, and he said there were two ways, one to go down the Barber Boad and the other way to go upi to the foot of Molly Brown Mountain; that he left home about sundown with his son and his niece that lived with him, and had car trouble on the road near Albert Carter’s place which delayed him about an hour; that he met Miller on the Barber Boad,' and asked him if he had the cattle up ; Miller said he only had the steer, and he told Miller it would not pay them to> go down there to get one steer this late. Miller insisted on his going, said he needed some money out of it, and they drove on down there. The steer was in a shed; that he had never before that day met either one of the men; that he bought and paid $20 for the steer; that Miller did most of the transaction talk, but he bought the steer from Clinton; that he thought they were brothers-in-law; that he told Clinton he would have to give a check; he said he did not want a cheek, that he had to have some money; then he told them he could not buy the steer; after some talk he told him that he would pay $10 in cash and give a check for $10. Miller said, “Will they cash the check down at the store?” He told them, “Yes,” and Clinton said, “All right, I will take the check.” His son wrote the check for $10 and he signed it. After tying up this steer, he gave Miller the $10. That on his way back the officers stopped him about a mile from his home. .The sheriff got out and said, “What have you got here?” He answered, “A steer.” The sheriff said, “Where did you get it?” He told him over on Elk Creek; he didn’t know the man’s name and asked his son; Fred said, “His name is Ab Clinton.” The sheriff asked what lie gave for the steer, and he told him a check for $10 and $10 in cash. The sheriff said, “Well, I will have to take you to town.” He asked him Avhat was the matter; that he was willing to go- over with him to' where he bought it. The sheriff said, “No, there has been too damn much of this going on now, I Avill take you to town,” and told him to get in the car with Billy Ballew; the sheriff got on the truck with Fred, and they all came on to town.

The defendant then produced the statement of his account at the First National Bank at Fort Gibson, and more than 40 canceled checks, each showing the name of the owner of the livestock purchased which were admitted in evidence. Nearly all the checks were issued in payment for livestock purchased in the months of July, August, and September, 1935.

On cross-examination he stated that he lived about 25 miles southeast of Tahlequah, and had lived there practically all his life; that he met 'Miller that night about a mile from the Clinton place; he would judge it was then betAveen 9 and 10 o’clock.

Fred Luna testified that he had been engaged for several months with his father in buying cattle and wrote the checks Avhen he was Avith his father. That evening he went with his father because they had trouble with the truck. They left home between sundown and dark; Ms first cousin and her little boy were Avith them. Near Carter’s place the motor quit running, and he worked on it fifteen or twenty minutes before it started; after going a couple of miles it quit running again. He took out the carburetor and fixed' it; it took something like an hour; that his cousin got out at the bridge. At the foot of Molly Brown Mountain they met Boy Miller. “Dad asked Mm if he had the cattle up, he said, No, I haven’t got anything but one steer,’ and dad said, ‘I don’t believe I will go down this late, I have been having trouble with my truck, I don’t believe I will gu down there tonight; you tell Clinton when he gets up the rest of his cattle I will go down and try to buy them.’ ” That Miller insisted on going down that night and buying this steer. He said they needed the money, so' they went down to Clinton’s place. When they got there his dad with Miller and Clinton walked out to the shed. His dad struck! matches, looked at the steer, and asked them what he would have to pay for the steer. One of the two said it ought to be worth $20, and his dad said he would buy it. When they loaded the steer his dad said he would have to give a check; they said they needed money and did not want a check, and he told them he could not buy it then; they asked how much money he had; he said $10. •They said all right, and he told him to write a check for $10. That he asked Miller who' to make the check payable to. Miller said to Clinton. That Miller had the $10 bill in his hand when he gave him the check; that he never saw Miller before, and had seen Clinton and his son at the store one time; that they had traveled from the Clinton place about six miles when the officers overtook them.

On cross-examination he stated that Sheriff Bishop and Billy Ballew passed his home that evening while he was working on the truck in front- of the gate.

The state in rebuttal recalled Sheriff Bishop, who testified that with Billy Ballew he passed the defendant’s home that evening and stopped near the Molly Brown Mountain; that he told Roy Miller to stay out of the way, that he wanted to hook up with them and get what lie could catch; that he did not intend to take Miller up on this charge; that he knew the kind of character Miller was.

Upon a careful review of the record and the evidence in the case, we are of opinion that the motion for a directed verdict of acquittal should have been sustained.

This conviction rests on the testimony of codefend-ants Roy Miller and A. W. Clinton. Under the statute (Penal Code [1931] § 3071 [22 Okla. St. Ann. § 742]), a conviction could not be had on their testimony unless they were corroborated by. other evidence, which in itself, and without the aid of their testimony, tended to connect the defendant with the commission of the offense.

In Rogers v. State, 57 Okla. Cr. 294, 48 Pac. 2d 344, 346, we said:

“The rule of law forbidding a conviction upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense is, under the statute (section 3071, St. 1931 [22 Okla. St. Ann. § 742]), positive and peremptory. * * *

“Under the statute, section 3071, supra, there cannot be a conviction unless there is proof of substantial facts tending to connect the defendant with the commission of the offense, aside from and without the aid of the accomplice’s testimony, and it is self-evident that the main facts in this case cannot be corroborated by a collateral fact, the existence of which is dependent upon the same class of testimony. Kirk v. State, 10 Okla. Cr. 281, 135 Pac. 1156; State v. Wilks, 17 Okla. Cr. 247, 187 Pac. 813; Wever v. State, 22 Okla. Cr. 414, 211 Pac. 1062.”

In Hanna v. State, 30 Okla. Cr. 354, 235 Pac. 928, this court held that under the statute (section 3071, supra) providing that:

“ ‘A conviction eanot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the, corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof,’ one accomplice cannot corroborate another so as to authorize a conviction upon the testimony of the two accomplices alone.”

And see Yeargain v. State, 57 Okla. Cr. 136, 45 Pac. 2d 1113.

Independent of the testimony of the accomplices, there is no substantial evidence tending to connect the defendant with the commission of the crime charged. When the testimony of these two' accomplices is excluded, the only testimony remaining is that of Mr. and Mrs. Markes Dixon, which tended only to show that she was a go-between between Roy Miller and the other officers.

In Shouquette v. State, 25 Okla. Cr. 169, 219 Pac. 727, 731, it is said:

“Ordinarily, it is not against public policy for officers to set a trap for one suspected of planning, the commission of a crime, and, if he commits the crime, even though aided or encouraged by the officer who laid the trap, the fact that he was so entrapped will be no defense. This rule will not apply, however, where the decoy proposed a robbery, and was the chief moving actor in the forcible taking of the property. To hold' the aiding offender criminally responsible, he must have participated in every ingredient of the offense charged. [Citing cases.] * * *
“Gustafson and Brown were peace officers — officers of the court — who were in part responsible for this alleged robbery. So frequently it has been demonstrated, and the facts in this case again demonstrate, that the practice of employing one thief to' catch another, by participating with him in the commission of the offense, is of doubtful propriety. It is a bad investment, financially.”

The state only demands tbe punishment of a citizen when his guilt has been clearly established according to the forms and rules of law, prescribed for ascertaining his guilt. It is not to shield the guilty, but to protect the innocent, that the courts are steadfast in upholding the forms and rules of law by which it may be lawfully determined who are guilty.

Carefully considering the evidence in the case, we are clearly of the opinion that the testimony of the accomplices was not corroborated as the law requires, and for this reason the verdict was contrary to law and the evidence.

The judgment of the district court of Cherokee county is therefore reversed and the cause remanded, with direction to dismiss.

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


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    REX FLEMING v. STATE.
    No. A-9259.
    Oct. 1, 1937.
    (72 Pac. 2d 403.)

      W. Lee Johnson and Dan Mitchell, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Carl D. McGee, Co. Atty., for the State.
   BAREFOOT, J.

The defendant, Rex Fleming, was charged by information in the county court of Pawnee county with having the unlawful possession of intoxicating liquors, was tried, convicted, and sentenced to serve a term of six mouthy in the county jail and pay a fine of f500. From this judgment and sentence he has appealed.

The first error urged is that the court erred in refusing defendant’s challenge of prospective jurors after all the defendant’s peremptory challenges had been used.

This alleged error is based upon the fact that one of the prospective jurors by the name of Eyler, who was a regular bailiff iu the court, was drawn upon the regular jury panel, and, while being examined as to his qualifications, and in the presence of other members of the jury, said: “If he had as much whisky as they say he had out there, I would say he was guilty.” This juror did not serve upon the panel, and we do not think that this statement was such prejudicial error as to cause a reversal of this case. The record does not show what questions were propounded to this juror. The trial court heard all of the questions and answers and in the exercise of a sound judicial discretion, which this court will not set aside unless it is shown that the court clearly abused this discretion.

It is further contended under this assignment of error that the court erred in failing to sustain the challenge to the juror Roe. This juror testified in answer to questions by counsel for defendant, if he did not “remember the case of about December 28, last year a raid was made and about 100 cases of liquof was seized.” The juror in answer to this question said that he had heard a discussion and read an article about it in the local paper ; that he and the editor of the paper were close friends and he then testified as follows:

“Q. When you read the facts in that newspaper you naturally believed them? A. As far as the newspaper report was concerned I did. Q. And you believed that that editor was competent to give dates and names of persons and places? A. Well, I really don’t know that he got the news. Q. But coupling the newspaper account together with what you heard and saw on the streets, then and since then, you formed an opinion of the major facts, didn’t you? A. Newspaper facts only. Q. You formed1 an opinion that a raid was made on the Water’s place that day? A. As far as newspaper facts were concerned, I did. Q. You believed that a raid was made? A. Yes, sir. Q. And you believe that about a hundred cases of liquor were siezed? A. Only as they were reported. Q. And you believe that Bex Fleming was the man? A. Only as it was reported. I never saw him before right now. Q. Nothing has happened since then to change your mind? A. That he was arrested? Q. Yes, that he was arrested and a seizure made? A. No. Q. You didn’t make your opinion from the article you read? The Court: Before we pass on that we will give the state a chance to question the juror for the record. Mr. McGee: Mr. Boe, at this time, do you have any opinion as would take evidence to remove, as to the guilt or innocence of this defendant? A. No, sir. Mr. McGee: That is the only question I wanted to ask. The Court: You think you could sit and give this defendant as good a trial as if you had never heard of this case? A. Yes, sir.”

The witness further testified that he was an aggressive prohibitionist and said:

“Q. Are you an officer of any organization that has prohibition its main interests, that is, the W. C. T. XJ. and Anti-Saloon League? A. I don’t know that I am now. I have been a member of the W. C. T. XJ. Q. Over what period of time has it been since you were a member of the W. C. T. XJ.? A. Oh, it has been two years. Q. Have you ever been a member of the Anti-Saloon League? A. No, sir. Q. Mr. Boe, I believe you said from what you had heard and read about this case that you had formed some opinion about what happened out there? A. No1, I don’t believe I made that statement. Q. You did say that you did believe the newspaper account to be an accurate account of the raid? A. I don’t believe I used the word ‘accurate.’ Q. I will ask you now if it isn’t true that you placed such credence in this newspaper report that you believed it was an accurate report of the raid? A. Yes, sir. Q. You believe that at this time the raid was made and the defendant taken into' custody for having several cases of liquor? A. Yes, that was the newspaper report and I believe it.”

A neAVspaper article Avhich the juror read was introduced in evidence and was as follows:

“One of the biggest liquor raids in this county for several years was made Monday by the Pawnee county sheriff’s office when 106 cases of bonded liquor was seized at the home of Rex Fleming, living about two miles east of Pawnee. Fleming, who was alleged to have been the owner of the liquor was taken into custody at the time the liquor was seized. Fleming has been operating a filling station for the past several months about one mile west of Pawnee on Highway 64 but has maintained his residence east of the city.”

We have carefully read the cases cited in defendant’s brief to sustain his contention. They are: Scribner v. State, 3 Okla. Cr. 601, 108 Pac. 422, 35 L.R.A., (N.S.) 985; Tegeler v. State, 9 Okla. 138, 130 Pac. 1164; Turner v. State, 4 Okla. Cr. 164, 111 Pac. 988; Morehead v. State, 12 Okla. Cr. 62, 151 Pac. 1183, Ann. Cas. 1918C, 416; Leard v. State, 30 Okla. Cr. 191, 235 Pac. 243; Johnson v. State, 1 Okla. Cr. 321, 97 Pac. 1059, 18 Ann. Cas. 300; Elkins v. State, 29 Okla. Cr. 175, 233 Pac. 491.

A reading of these cases will readily show that they do not sustain the contention of defendant that the court erred in overruling the challenge to- the juror in this case, but on. the other hand clearly demonstrate the court was not in error in overruling the same. In the Scribner Case ten of the prospective jurors testified they had heard of the case from those who knew the facts therein and had fixed opinions as to the guilt of the defendant. In the Tegeler Case the prospective jurors said they had a fixed opinion as to the guilt of the defendant and this was also true in the Morehead Case. In the Turner, Leard, Johnson, and Elkins Cases, this court, in the strongest language possible, holds that a juror is not disqualified by reason of reading newspaper accounts of the crime charged or from current rumors, where the juror says he can and will give the defendant a fair and impartial trial, that the competency of the juror is addressed to' the sound discretion of the trial court, and that, unless it is clearly shown that this discretion has been abused, it will not be set aside. The statutes of this state, Okla. Stats. 1931, sec. 3000, Okla. St. Ann., title 22, § 662, provide:

“In a challenge for implied bias, one or more of the causes stated in the second preceding section must be alleged. In a challenge for actual bias, the cause stated in the second subdivision of the third preceding section must be alleged; but no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon rumor, statements in public journals, or common notoriety, provided it appears, to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to- be submitted to him. The challenge may be oral, but must be entered upon the minutes of the court.”

In construing the above statute, the court, in the case of Gentry v. State, 11 Okla. Cr. 355, 146 Pac. 719, 726, says:

“An examination of the testimony of these jurors, given on voir dire, shows conclusively that the opinions which they formed, and that one juror says he may have expressed, were founded upon the reports which they had read in the newspapers. Intelligent men take newspaper accounts as current news, liable to qualification, explanation, or contradiction, and, when qualified, explained, or contradicted, they change their opinions or belief, accordingly as a matter of course. The opinions of the jurors here were such opinions merely) as intelligent men almost irresistibly form from reading newspaper accounts of crime, relying upon the truthfulness of the published accounts which are always subject to be changed and altered by contradictory accounts. Such opinions rarely disqualify intelligent men from fairly considering the evidence given on a trial and rendering an impartial verdict thereon when called upon to act as jurors. Nine-tenths of the intelligent taxpayers of the county, where a homicide has taken place, and the facts and the circumstances attending it have -been published in the newspapers, would be disqualified as jurors, if the objections raised in this case were well founded. All of them,, would read the accounts or hear the facts detailed by some one who had read them, and most of them would form just such opinions, or get just such impressions as the jurors had in this case.
“Under our statute, the mere expression of an opinion by a juror in common conversation, without anything to show ill will, hostility, or a fixed determination of belief, is not a legal ground of challenge for cause. In order to disqualify the juror there must be ‘the existence of a state of mind on the part of the juror, in reference to the case, or to either party, which satisfies the court, in the exercise of a sound discretion, that he cannot try the issue impartially, without prejudice to the substantial rights of the party challenging.’ Section 5858, Rev. Laws 1910 [22 Okla. St. Ann. § 659, St. 1931, § 2997].
“The issue raised upon a challenge for cause to a juror in a criminal case, on the ground that he has formed an opinion founded upon rumor, statements in public journals, or common notoriety, and upon which he has expressed an opinion, is one of mixed law and fact; and the finding of the trial court upon the issue ought not to be set aside by a reviewing court, unless it appears that upon the evidence the trial court ought to have found that the juror had formed such an opinion that he could not in law be deemed impartial. Ex parte Spies, 123 U. S. 131, 8 S. Ct. 22, 31 L. Ed. 80; Holt v. U. S., 218 U. S. 245, 31 S. Ct. 2, 54 L. Ed. 1021, 20 Ann. Cas. 1138.”

Chief Justice Marshall of the Supreme Court of the United States, in Burr’s Trial (United States v. Burr), Fed. Cas. No. 14,692g, correctly states the rule of law in such cases as follows:

“Light impressions which may fairly be supposed to yield to the testimony that may be offered, which may leave the mind open to a fair consideration of that testimony, constitute no sufficient objection to a juror, but those strong and deep impressions which will close the mind against the testimony that may be offered in opposition to them, which will combat that testimony, and resist its force, do constitute a sufficient objection to> him.”

We do not think under the facts as above set forth that the court erred in overruling the challenge to the juror.

It is next contended that the punishment assessed by the jury against this defendant is excessive and for this reason should be reduced. He was given the maximum punishment provided by the statute, a fine of $500 and a term of six months in jail. This court, under the law, has authority to reduce the sentence and has in many instances done so where the ends of justice demanded it. The cases relied upon by defendant to support his contention that the judgment in this case is excessive are: White v. State, 33 Okla. Cr. 428, 244 Pac. 450; Smithers v. State, 36 Okla. Cr. 135, 251 Pac. 751; Coram v. State, 42 Okla. Cr. 219, 275 Pac. 1070.

It will be noted that in the White Case the defendant was charged with the possession of 12 pints of whisky which were in a car in front of defendant’s home. The judgment was reduced from the maximum punishment to a fine of $200 and 60 days in jail. In the Smithers Case a young clerk in a drugstore was convicted of the possession of two gallons of whisky and the jury discharged the proprietor. The judgment was reduced from a fine of $200 and 60 days in jail to a fine of $50 and 30 days in jail. In the Eckhardt Case, 38 Okla. Cr. 404, 262 Pac. 708, the defendant had possession of a half gallon of whisky in a car. The sentence was reduced from a $500 fine and six months in jail to $50 and 30¡ days in jail. In the Coram Case the defendant was convicted for the possession of three one-half gallon jars of whisky which were buried in a field. The judgment was reduced from a fine of $500 and six months in jail to a fine of $250 and 60 days in jail.

In the instant case the defendant was convicted of the possession of 104 cases of whisky, brandy, and alcohol. This would be 2,496 pints. It was of different brands, such as Cream of Kentucky, Wilkin’s Family, Seagram’s, Old Quaker, Invader, Golden Wedding, Windsor, Mint Springs, and other brands, all bonded liquor. This liquor was found in the basement of the home of defendant, most of it in original packages, and some of the cases broken and on a table. The defendant owned and operated a filling station in close proximity to his home where it is easy to conclude he was selling and disposing of the liquor and using his home as a place of storage and public resort. The evidence reveals that other parties were at the home of defendant at the time the search was made and that his wife was also' present. This court has recently had occasion, in passing, upon the validity of search warrants to search the homes of the citizens of this state, to call attention to the sacredness of the home and directing that the officer of the law should be as vigilant in the protection of the home as he was in enforcing, the law. McHenry v. State, 61 Okla. Cr. 450, 69 Pac. 2d 90, and Denton v. State, 62 Okla. Cr. 8, 70 Pac. 2d 135. But as stated in the case of Denton v. State, where the defendant . has so degraded his home by bringing liquor and other instruments of crime therein for the purpose of using them in violation of the laws of this country, hoping to receive protection through the sacred right of forbidding their homes to be searched under the terms of the Constitution, then this practice should be swept away to the end' that the law may be enforced and the guilty punished. We have the defendant in possession of an enormous amount of bonded, tax-paid whisky, many different brands, using the home as a place of storage and public resort, in the Arery presence, and, no doubt, with the knowledge and consent, of his family, where it was an easy matter for the young manhood and womanhood, and the older ones of the community, and the passing stranger to resort for the purpose of purchasing and drinking intoxicating liquor. It is just such a place as causes those who enter to become in such condition that their driving of an automobile or truck upon the public highway makes them a menace to the public safety. It was no doubt these things which caused the jury in this case to give the defendant the maximum punishment under the laAV. It may have been his first conviction, as suggested, but the facts and circumstances bear out the fact that his had been a continuing offense in defiance of the laws of this state. As above stated, this court has often reduced sentences when justice demanded it, but this case does not appeal to us as being one where it should be exercised. The record does not in any Avay reveal the financial condition of the defendant. N> evidence of his former good reputation and good character was introduced. There is no1 way for this court to determine not only his condition but Avhether he has in any way reformed. The law has placed the pardon and parole power in the hands of the Governor of this state. If it should be deemed proper, these instrumentalities of the laAV may be used to the end that justice be done. For the reasons above stated, we do not think the sentence in this case should be reduced. It is therefore ordered that the judgment and sentence of the county court of Pawnee county be affirmed.

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


author: DOYLE, J.

text:
    H. R. BRUNING v. STATE.
    No. A-9243.
    Oct. 8, 1937.
    (72 P. 2d 393.)

      Owen F. Renegar, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DOYLE, J.

Upon an information against H. R. Bruning, Rosa E. Bell, Albert Zirm, and others, charging them with the crime of forgery, the defendant H. R. Bruning ashed for and was granted a severance. Upon his trial the jury returned their verdict finding him guilty of forgery in the second degree, leaving the punishment to the court. The court overruled the motion for a new trial on June 26, 1936, and rendered judgment and sentenced defendant to serve a term of three years in the state penitentiary. From the judgment of conviction he appeals.

The information charged that in Oklahoma county on the 25th day of April, 1936, the said defendants, then and there being, while acting, conjointly and together, did then and there knowingly, fraudulently, unlawfully, and feloniously, with intent to defraud, utter and publish as true a certain instrument in writing, to wit, one mineral deed. The alleged forged instrument or deed is set forth in extenso, and the acknowledgment thereon. The instrument purported to he a mineral deed, executed by John B. Straw and Mable Meredith Straw, husband and wife, to lots 11, 12, 13, and 11, in block 1, Hare’s Lincoln Boulevard addition to Oklahoma City, consideration named, $1 cash and other good and valuable considerations. It bears the date of the 25th day of April, 1936, and acknowledged before Albert Zirm, a notary public in and for Oklahoma county, and purports to grant, bargain, sell, and convey, transfer, and deliver unto D. B. Ellis, of Oklahoma City, an undivided whole interest in and to all the oil, gas, and other minerals in and under that may be produced from the aforesaid laud; that at the time said defendants so uttered the false instrument as genuine said defendants well knew that said names “John B. Straw and Hable Meredith Straw” were forgeries.

The record shows that when the case was called for trial the defendant objected to going to trial and moved the court to strike the case from the assignment on the ground that his demurrer to' the information had not been heard or passed upon.

It appears that the defendant’s plea of not guilty had been entered on June 6th, that no permission of the court to withdraw said plea had been asked or secured, but counsel for the defendant, without leave of the court, had on June 17th, the day before the case was called for trial, filed a general demurrer to the information.

Thereupon the court announced, “if you want to present your demurrer I will hear it now.” After hearing the argument, the court overruled said demurrer and the motion to strike.

The first assignment is:

“Error of the court in requiring this defendant to be tried on an information charging first degree forgery, on evidence presented making out a case of second degree forgery, and thereby sustaining a conviction of second degree forgery.”

The statute upon which the conviction is based (Penal Code [St. 1931] § 2139 [21 Okla. St. Ann. § 1592]) defines the offense of forgery in the second degree as follows :

“Every person who, with intent to defraud, utters or publishes as true any forged, altered or counterfeited instrument or any counterfeit gold or silver coin, the forging, altering, or counterfeiting of which is hereinbefore declared to he punishable, knowing such instrument or coin to he forged, altered or counterfeited, is guilty of forgery in the second degree.”

Counsel in his brief calls the court’s attention to the information designating the crime charged as forgery in the first degree, also calls the attention of the court to the instructions given by the court submitting only the issue of second degree forgery, and contends that this action of the court constituted prejudicial error.

It appears that the name given to the crime charged in the information is forgery in the first degree, but by the charging part the defendants are charged with forgery in the second degree.

A mistake in this particular is an irregularity and is not fatal. The introductory paragraph of an information is ordinarily equivalent to a mere descriptive label. Vickers v. U. S., 1 Okla. Cr. 452, 459, 98 Pac. 467.

A wrong name given to a crime in the preliminary part of an information is an irregularity only, and is not fatal. The charging part of the information must be looked to, to determine the character of the offense. Kelly v. State, 12 Okla. Cr. 208, 153 Pac. 1094.

Upon the record before us this contention is wholly without merit. It appears from the record that there were no objections made or exceptions reserved to' any of the instructions given by the court, and it appears that the instruction on second degree forgery was given at the express request of the defendant.

It is further contended that the evidence is not sufficient to support the verdict, and that the court erred in refusing to direct a verdict of acquittal.

On the part of tbe state the evidence established the following facts:

That on the date alleged John B. Straw and Mabel Meredith Straw, husband and wife, were joint owners of the lots described in the information; that they had executed an oil and gas mining lease to Anderson-Prichard Oil Company, filed for record with the county clerk on March 17, 1936.

John B. Straw testified that he did not sign or acknowledge or deliver the mineral deed set forth in the information; that a broker, S. J. Sharber, told him that a mineral deed to said lots had been offered for sale at his office and wanted to know if such deed was genuine; if so, he was going to buy it; that this was the first knowledge he had of the mineral deed; that he went to the county clerk’s office the next day and found said deed had been filed for record; that at that time he did not know the defendant H. B. Bruning, or his codefendant, Albert Zirm.

The original instrument or deed was offered in evidence.

Mabel Meredith Straw testified that she did not sign this deed and that her name was signed without her authority, knowledge, or consent; that she spells and signs her first name “M-a-b-el,” the signature on the deed is spelled “M-a-b-l-e.”

Kyle Johnson testified that he had lived in Oklahoma City about ten years, was unmarried, and made his home with his brother-in-law, Ed. Blaylock. That he had known the defendant Bruning for about a year before the time of the transaction involved. That around the 10th of April he met Bruning in a pool hall on South Hudson. Bruning said be wanted bim to run some errands for bim, and they walked from there down to tbe front of tbe Kress Store. There Bruning, pointed to a woman in tbe store, said her name was Miss Bell, .gave bim an envelope, and told bim to give it to her. That be went in and gave her tbe envelope. She said she would be back there at 1:30. That be went out and told Bruning what she said. That at 1:30 he was back at tbe Kress1 iStore, and Miss Bell gave bim tbe envelope which be delivered to Bruning, who was waiting around the corner on Harvey street. That a similar transaction occurred tbe next day. Bruning waited on Harvey street while be delivered an envelope to Miss Bell, and again a little after 1 o’clock be received such envelope from her and delivered it to Bruning. That Bruning told bim, “There was some heir stuff, and there was. some people dealing be did not want to see bim.” Then they started out to Capitol Hill. Brun-ing first drove to tbe post office, stopping at Third and Harvey. Bruning said be wanted to get these papers fixed up and walked over to tbe post office. Coming back, he banded him tbe papers to give to. a man be pointed out on tbe steps at the west entrance of tbe post office, and said tbe man’s name was Albert Zirm. That be walked over to tbe man and said Mr. Bruning told bim to have bim notarize these papers. Zirm took tbe papers to a desk in tbe post office and, after signing tbe paper and affixing bis seal to- it, gave it back to. him, and be went back to tbe car and gave tbe papers to. Bruning. They then drove out to. Forty-Fourth and Shields, Capitol Hill. Miss Bell was sitting in a car parked in front of the Yarbor Pharmacy. Bruning went over and talked to her 10 or 15 minutes; then came back to bis car, opened the door on the dash pocket and took out some papers, banded them to bim and told bim to take them over to Miss Bell. That he recognized the deed as the one Albert Zirm acknowledged in the post office a little while before that. That when he ga,ve her the papers she said Mr. Brnning wonld know where to meet her. Bruning then drove back and stopped on Reno street. Bruning told him to go< up to the Kress Store and wait for Miss Bell. That he went there and, after waiting about an hour, Miss Bell came by1 and went in the store. Bruning came by and told him to wait, then went in where Miss Bell was. Upon coming out, he told him to go back to' the car, parked on California street. After waiting there about 40 minutes, Bruning came to the car and said they were having trouble in getting this transaction fixed up ; said he had some more papers he wanted him to' help with, and they drove up to Twenty-Third and Walker. Bruning left the car and was gone about 15 minutes. He then drove back to* Thirteenth and Robinson and they went into a cafe. Brunning ordered beer, and used the telephone there. They then drove down to the Key building. Bruning left the car, walked in, came back, and handed him some papers and said, “The old gentleman that notarized them that morning would be in the lobby.” That he took the papers which were folded up, went into the lobby, there met Albert Zirm and handed him the papers to notarize. Zirm said he was out of ink. They then went up to the fourth or fifth floor in the Key building. There Zirm notarized two instruments and gave them back to him. He went down on the elevator, returned to the car, and gave the papers to Bruning. It was then about 4:30 p. m. Bruning drove down to Main, there got out. He drove the car down to California street. After waiting there about 80 minutes, Bruning came to the car, then drove by and left him at his home. That he never told anybody his name was John B. Straw or that be was the husband of! Mabel Meredith' Straw. That Bruning knew his name and always addressed him as Johnson. That he did not know the mineral deed that Bruning gave him to take to Alberti Zirm to, be notarized was a forgery. That no one had ever suggested to him that it was a forgery.

D. B. Ellis testified that he was in the real estate, insurance, and oil brokerage business in Oklahoma City. That he attempted to buy some royalty to' be conveyed by mineral deed, covering lots 11 to 14, inclusive, block 1, Hare’s Lincoln Boulevard addition to Oklahoma City, consideration $3,400, and received a mineral deed, signed John B. Straw and Mable Meredith Straw, and. filed the same with the county clerk for record. That on Saturday, April 25th, he was called to* Mr. Dutton’s office, First National Bank building. Harrison White and Miss Bell from Norman were there. They had a deed signed John B. Straw and Mable Meredith Straw, made to H. R. White. James B. Rogers was there with him. That they were buying it together. Miss Bell seemed to do' most of the talking, and said it would take $200 commission to' consummate the deal. They told them they would take it. The agreed consideration was $3,400. He made out a check to John B. Straw for $3,200, and one for $200, to' be cashed upon the presentation at the bank with the proper mineral deed. The 'banks were closed at that time and it was agreed to meet at Mr. Dutton’s office the next morning. That with Mr. Rogers he was there the next morning. They didn’t appear and they went on to his office. At 12 o’clock Miss Bell came in and she had a new deed made direct to him. ,She explained that she had been all morning trying to get that deed taken care of and insisted on having the consideration in cash. She explained that Mr. Straw had a wreck hauling a car of whisky, and was on the scout from the law, and that he would not put in his personal appearance. That he •would not take a hank draft or anything hut' the cash. That just before 2 o’clock they went over to the First National Bank and he cashed the $3,200 check and Mr. Rogers cashed the $200 check and gave Miss Bell the $3,200 and she gave him the deed and a receipt for the money, with the understanding that they go with her to Mr. Straw, and then go with Mr. Straw to either Judge Stewart or Mr. Hare, from whom the Shaws had purchased the property, and have them identify Mr. and Mrs. Shaw. That the money was not toi be turned to anybody until they were identified to his entire satisfaction. They then went with her to the southeast comer of Main and Robinson, and she pointed out a party standing in front of the Kress Store and said: “Now, there is John B. Straw, don’t say anything, let us go right on by and go in the store and he will follow us in.” So they went in the store, but the man didn’t follow. The defendant Brun-ing was standing there in front of the store and Miss Bell talked to Bruning, showed him receipts, and then handed them to him. He handed them back to' her and she came back to us and said Mr. Straw when he saw Mr. Rogers thought he was an officer and would not come in to the •store. Bruning walked away, and with Mr. Rogers, Miss Bell, he started back to his office. About halfway from Kress’ to the corner of Main and Harvey Miss Bell turned around, handed him the bag with the money in it, and said, “I will see you in a few minutes,” and turned back holding the receipts in her hand. They went on to his office. In about IS minutes she came in and said, “Well, Mr. Ellis, Mr. Straw won’t see you, he won’t meet you or anybody else, he is scared to death and won’t see anybody, I gave him those receipts and he is going to get them signed 'both by himself and Mrs. Straw and get them notarized, I am to meet him there in an hour and get those receipts.” Then he told her that would not satisfy him, that they had to have those parties identified as being the parties Mr. Hare and Judge Stewart sold those lots to'. That they must be so identified. She said, “Well, give me the deed then,” and he said, “All right.” She went out and came back with the receipts, but did not turn them over to him. The receipts had been signed and notarized in the same handwriting that the deed had been signed. That he made the deal in good faith.

The testimony of James B. Rogers as to' the facts concerning the transaction was the same in substance as that of the witness Ellis.

W. E. Freeman testified that he was acquainted with the defendant Bruning for the past 12 years. That he came to his home about April 4, 1936, and asked him how he would trade his farm near Claremore for some royalty out north of the Capitol. That he had a man that might trade this, royalty for his farm. Bruning came back that evening and said the man would trade for $1,100 to boot. He told Bruning he would make the deal and give $1,100 to boot, and pay his commission. That the description he gave of the property was lots 11, 12, 13, and 14, Block 1, Hare’s Lincoln Boulevard addition. That they looked at the lots and he agreed with Mr. Bruning, to trade for this royalty. Bruning said he would arrange for him to' meet the owner the next morning. At that time he met Bruning in front of the Ramsey Tower building'. Brun-ing said the owner of the royalty was hauling whisky and had a car wreck and the officers were looking for him. Then they went up to Judge Renegar’s office, a girl there drew up a contract, and it was acknowledged before a notary there. Bruning signed the contract as the agent, and said be would get the o wner of the land to make the deal.

J. H. White testified that he was a dealer in real estate and oil leases. That about the middle of April Mrs. Bess Dougal told him the mineral rights1 on the lots in question were for sale by Miss Bell. That he talked to Miss Bell about it, and told her1 he had a man that agreed to pay $4,000 for the mineral rights for the four lots. That he asked Miss Bell for something toi show to> buyers that he had the right to deliver the deed. Miss Bell said she would have his name put in the deed by the owner. That she came back that day with his name in the deed. That he only had possession of it when Miss Bell was present, just to show that it could be transferred, then she would take it back. That he was present when Mr. Ellis and Mr. Bogers tried to make the deal. It was offered to Mr. Ellis for $3,200 and the commission, and he agreed to make a deed to D. B. Ellis. They then discussed another deed. That he was in Mr.' Ellis’ office on Monday when the trade was made. Miss Bell left there to see the owner about the deed to the property. That the money for the deed was counted in his presence. The $200 check was cashed and handed to him1 by Mr. Rogers. That he gave Miss Bell $50, Mr. Crabtree $50, and kept $50 himself, and $50 for Mrs. Dougal.

When the state closed its testimony, the defendant demurred to the evidence and moved the court to direct a verdict) of not guilty, “on the ground that the state had wholly failed to make out any case against the defendant,” which was overruled. Exception reserved.

As a witness in his own behalf, the defendant testified that for the last few years he had been handling real estate transactions. That be beard tbe testimony of tbe witness Kyle Johnson, bnt never knew bis name until tbe preliminary bearing in this case. That Johnson told him his name wasi Straw. That tbe first deal be bad with him was on some property at Seventeenth and Linwood. Later Johnson told him about trading this royalty for a farm. That be knew Mr. Freeman bad a farm and be talked to him. Freeman wanted two' thousand to1 boot, then agreed on eleven hundred. Mr. Freeman signed a contract to trade the farm for tbe royalty and pay back $1,100, also agreed to pay him $150 commission to make the deal. Tbe contract was offered and received in evidence. That be saw Johnson quite often after1 that. That coming out of tbe Kress Store he met Mr. Ellis, Mr. Rogers, and Miss Bell, but did not know Mr. Ellis or Mr. Rogers at that time, had a conversation there with Miss Bell, about selling some royalty in Cleveland county and about lots 5 and 6, block 15, Gast Heights, that she wanted him to handle for her. That the first time he'ever saw the mineral deed admitted in evidence was1 at the preliminary trial. That he had nothing to do with the deed or papers concerning those lots, except his deal with Mr. Freeman.

On cross-examination he stated that he had known Kyle Johnson for a couple of years, but did not know his name. That after signing the Freeman contract, he talked with Mr. Straw on the ’phone, and told him he had talked to his father, wlm said he had leased his place and might sell the royalty and wanted to know if he would sell it. Mr. Straw said, “No,” so he never called him any more. That he took Kyle Johnson home several times, but never did go out there and ask Mr. Blaylock if a man by the name of Johnson lived there. There the only time he ever met Miss Bell was upon coming out of the Kress Store; that he had known Albert Zirm for about 10 years. That he saw Mr. Zirm at the post office about the 23d of April. That Kyle Johnson was not with him that day. That he never had Mr. Zirm notarize the signature of John B. Straw and Mabel Meredith Straw to a deed.

Asked if he did not on April 10, 1936, take a mineral deed to the lots in question, signed John B. Straw and Mable Meredith Straw, to 2141/2 S. W. Washington street, where Albert Zirm lived, and had him acknowledge the said signatures, he answered: “No, sir.” Asked if he did not tell Mr. Zirm that he knew the signatures of John B. Straw and Mabel Meredith Straw, and that was their signatures, answered: “I never took a deed to Mr. Zirm.”

Albert Zirm, for the defendant, testified he had lived in Oklahoma county about 10 years, was a notary public, identified the acknowledgment to the mineral deed admitted in evidence. That Kyle Johnson came to him with) this instrument at the steps of the post office and said, “I have another instrument for you to acknowledge.” He had this instrument in his hand, he said, “Oh, John B. Straw, we will have to gu to the post office and get some ink and write the acknowledgment.” That they went into the post office. He said, “Mr. Straw, did you and your, wife sign this?” He said “Yes.” Upon that he acknowledged it. That he thought there was a deed acknowledged ahead of that. That a few minutes before he saw Mr. Bruning in the post office. That he had his seal in his pocket; that later this same boy came back with a couple of receipts and he met him in the lobby of the Key, building and said, “Well, Mr. Straw, you have some more acknowledgments to take.” He said, “Yes, T am in a hurry,” and then went up in Fisher’s office. He was then asked if upon April 10, 1936, he acknowledged a mineral deed, signed by John: B. Straw and Mable Meredith Straw, and answered, “Yes.”

He further testified:

“Q. That was a mineral deed. Did John B. Straw and Mabel Meredith Straw on April 10th appear before you and execute or acknowledge their signatures on that deed? A. They did not. Q. Nobody appeared and acknowledged their signatures? A. Only my friend Mr. Bruning here brought them up. Q. He brought that mineral deed that was signed John B. Straw and Mable Meredith Straw of April 10th to you to acknowledge it? A. Mr. Bruning did. Q. Is that this defendant here? A. Yes, sir. Q. Was anybody with Mr. Bruning when he brought the mineral deed on April 10th to you? A. Not that I know of. There might have been and I didn’t see them. Q. Who vouched for the signatures of these folks to you when you acknowledged that mineral deed of April 10th ?! A. Mr. Bruning said, ‘I want you to fix up a little deal for these young people/ and he said mostly this deed will never be used. I said, Mr. Brhning, this is very irregular.’ Well/ he said, ‘You can take the acknowledgment and I will vouch to anything that is wrong.’ So, I said, Well, under those circumstances I will take care of it.’ Q. Did he tell you whether or not he knew John B. Straw and Mabel Meredith Straw? A. Well, he said, yes — They signed it all right.”

In rebuttal Ed Blaylock testified he had lived in Oklahoma City about 11 years; that his brother-in-law, Kyle Johnson, lived with him; that about the middle of April this year, a man called at his home, 723 W. Seventh street, and asked him if Mr. Johnson lived there. He answered: “Yes.” Invited him in and Kyle Johnson introduced him as Mr. Bruning. About 3 days later the doorbell rang. He went to the door. Mr. Bruning, was there and asked) if Mr. Johnson was at home. He said “Yes,” and called Kyle, who was in the kitchen.

It is insisted that the testimony is insufficient to warrant a conviction, in that it does not connect the defendant with the uttering of the forged instrument.

It is a well-settled rule of law that, if there is competent evidence to support the conviction, this court will not weigh the sufficiency of the evidence.

The gist of the offense under the statute (section 2189, supra) is the uttering or publishing as true the false or forged instrument, knowing such instrument to be forged, coupled with the intent to defraud.

Section 1808, Penal Code (St. 1931), 21 Okla. St. Ann. § 172, provides:

“All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid1 and abet in its commission, though not present, are principals.”

We have seldom seen a stronger case of circumstantial evidence. It shows a conspiracy to obtain property of Mr. and Mrs. Straw, joint owners of the lots. The first criminal act was the forgery of the mineral deed; then •came the utterance of the false and forged instrument.

When a conspiracy is entered into to cheat and defraud any person of any property, alí persons, who engage therein are responsible for all that is done in pursuance thereof by any of the coconspirators until the object for which the conspiracy was entered into is fully accomplished. Grayson v. State, 12 Okla. Cr. 226, 154 P. 384.

A sufficient answer to the contention made is that in our opinion the evidence is not only sufficient to sustain the conviction, but is of such character as to leave no doubt as to the correctness of the verdict.

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

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


text:
    O. A. ALLEN v. STATE.
    No. A-9268.
    Oct. 15, 1937.
    (72 P. 2d 516.)

      W. C. Peters, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for tbe State.
   DOYLE, J.

Appellant, O. A. Allen, was tried and! convicted in tbe court of common pleas of Tulsa county. Omitting tbe title, tbe information is in these words:

“Be it Remembered:
“That Holly L. Anderson, tbe duly qualified and acting county attorney for Tulsa county, Obla., who prosecutes in tbe name and by authority of tbe state of Oklahoma, comes now into court of common pleas within and for Tulsa county, state of Oklahoma, on this tbe 10th day of July, A. D. 1936, and gives tbe court to understand and be informed that on tbe 7th day of July, A. D. 1936, and prior to tbe filing of this information in Tulsa county, state of Oklahoma, said defendant, in said county, and within the jurisdiction of this court, did unlawfully, wilfully, wrongfully and knowingly, offer to bribe an election officer, to< wit: E. E. Dunn, an election judge in Precinct No-. 119, Tulsa county, Okla., in which there was a general primary election, held for the purpose of nominating national, state and county candidates, to be placed on the ballot, to' be voted for at the November, 1936 election, for respective offices, committed in way and manner as follows, that is to' say, said defendant approached the said E. E. Dunn, and represented to- him that one Mrs. Frank Wascheck had been appointed one of the counters in said Precinct No. 119, and that he had already fixed her, that on said election day she would appear at the polls, then he would tape her wrist and arm, and represent to the election board in said precinct, that she could not keep tally, and for him to see that she was to do the calling, and he wanted to throw said election to' certain candidates, then and there stating to' the said E. E. Dunn that he would look after him, and give him, the said E. E. Dunn, what he wanted, that he, the said E. E. Dunn, would be taken care of, and that the said Mrs. Frank Wascheck, would call the votes for the candidates he suggested, and all of said acts so proposed by the said defendant to the said E. E. Dunn, were to be done contrary to his official duty in relation to such election, and said defendant, did then and there unlawfully, wilfully, and knowingly, offer to bribe the said E. E. Dunn, in the way and manner as aforesaid, contrary to' the form of the Statutes in such cases made and provided, and against the peace and dignity of the State.
“Holly L. Anderson, County Atty.
“By T. L. Wallace, Assistant.
“State of Oklahoma, County of Tulsa, SS.
“I, Jack Bonham, county investigator, being first duly sworn, upon oath depose and say that I have read the above and foregoing information, and know the contents) thereof, that all the allegations contained therein are true.
“Jack Bonham.
“Subscribed and sworn to before me this 10th day of July, A. D. 1936.
“Frank Markham, Clerk of the Court of Common Pleas,
“By Emile F. Sterger, Deputy.
“Endorsed: Filed July 10, 1936 — Frank Markham, Clerk.”

The verdict returned by the jury is as follows:

“We, the jury, drawn, impaneled and sworn in thel above entitled cause, do upon our oath find the defendant guilty as charged in the information herein, and leave Penalty to the Court.
“Dewey L. McElroy, J. L. Jackson,
“W. A. Chilcoat, E. M. Hall,
“J. E. Cameron, F. G. Helscel,
“Paul M. Brown, L. A. Langston.”
Adams,

Motion for new trial was duly filed, presented and overruled. On November 12, the court rendered judgment and sentenced the said “O. A. Allen, to be imprisoned in the Tulsa county jail for a period of sixty days and to' pay a fine of flOO and the costs.”

To reverse the judgment an appeal was perfected.

The first contention is that the court erred in overruling defendant’s demurrer to' the information, based on' the grounds that the facts stated do not constitute a public offense; and that the information is indefinite and not direct and certain as to the party charged or as to' the ■offense charged.

It is urged that the information is insufficient as being vague, indefinite, and uncertain, and is fatally defective in failing to allege that said bribe was offered with corrupt intent to influence unlawfully the person to' whom it was offered, quoting the statute (Penal Code, St. 1931, § 1777 [21 Qlda. St. Ann. § 97]), which defines “bribe” as follows:

“The term ‘bribe’ signifies any money, goods, right in action, property, thing of value or advantage, present or prospective, or any promise or undertaking, asked, given or accepted, with a corrupt intent to influence unlawfully the person to whom it is given, in his action, vote or opinion, in any public or official capacity.”

Two' other objections to the information are urged; they are: That the information fails to allege what candidates were to' receive the benefit of said offered bribe, merely alleging that “he wanted to throw said election to' certain candidates,” and that said information fails to' allege that any bribe of any consideration or value, as defined by our statute, was ever offered by the defendant.

It also appears that the information does not contain any direct and certain allegation of fact as to' the kind or value of the thing offered, or the promise offered as a bribe, and it is not alleged that the defendant knew the person to whom the alleged offer was made was then an election judge.

It will also be observed that the name of the defendant does not appear in any part of the information, nor is the defendant named by reference to the title of the case or otherwise mentioned in the information, and nO' person named is charged in the information with having committed the offense.

The section of the Penal Code (2035, O. S. 1931 [21 Okla. St. Ann. § 2431]), upon which the information is based, reads thus:

“Every person who gives or offers a bribe to any judge, clerk, canvasser, or other officer of an election, as a consideration for some act done or omitted to be done, contrary to his official duty in relation to such election, shall be punished by fine not exceeding five hundred dollars, and imprisonment in the county jail not exceeding six months.”

The crime attempted to* be charged in the information is “offering- a bribe to an election judge.”

The general rule that an information is sufficient in the charging part when it follows the language of the statute applies only in cases where there is a sufficient description of the offense intended to be created by the Legislature; and where a mere general or generic term is used, or the statute does not sufficiently define the crime, or set forth all the essential elements of it, the use of the statutory language is not sufficient in order to- particularize the offense. For this purpose it is necessary in some instances, in addition to* the statutory words of general description, to set forth the thing or means used,-or other statement of facts and circumstances, as with respect to time, place, person, or other circumstances, to identify the particular transaction. 14 R.C.L. 187.

While, as a general rule, it is sufficient to charge a statutory offense in the language of the statute, there are exceptions to the rule. The information must contain a statement of the acts constituting the offense, and, if the statutory Avords are not sufficient, it must be expanded beyond them. The criminal nature and character of the offense must appear in allegation; also* the particular facts and circumstances which render the defendant guilty of that offense. Porter v. State, 4 Okla. Cr. 654, 111 Pac. 1023; Abrams v. State, 13 Okla. Cr. 11, 161 Pac. 331; Wilcox v. State, 13 Okla. Cr. 599, 166 Pac. 74; Hipsman v. State, 21 Okla. Cr. 220, 205 Pac. 1103.

Under our Penal Code (sections 1906, 1907 [21 Okla. St. Ann. §§ 381, 382]), bribery is the offering, giving, receiving, or soliciting of anything of value with intent to influence the recipient’s action as a public official, either executive, legislative, judicial, or other public official.

A criminal intent is as necessary in this as in other crimes, and this intent must be to influence corruptly an official in the discharge of his duty.

It is apparent from a reading of the statute (section1 2035, supra), upon which the information in this case is based, that it simply names the offense and provides for its punishment. The essential elements of the crime of offering a bribe to an election judge, as necessarily inferred from the statute, include knowledge on the part of the defendant of the official character of the person to whom the bribe is offered, the fact that something of value was offered or promised, and that it was offered' with the intent to influence his official action. It is not sufficient to' follow the words of the statute and allege that the defendant offered a bribe to' an election judge, naming him, then and there stating to' the said jndge, “that he would look after him, and give him what he wanted.” On the contrary, it is necessary to' allege directly in the charging part of the information the official character of the person to whom the offer was made, and knowledge of the defendant that he was such election judge, and the fact that it was of value, or that there was a promise to give something of value; that it was offered: with the intent to influence the official action of such person; and that the bribe was offered with corrupt intent to influence his action.

An information is divided into four parts: (1) The caption; (2) the commencement; (3) the charge; and (4) the conclusion. The substantial part of the information is the charging part.

No information is insufficient by reason of a defect or imperfection in tbe matter of form, which does not tend to the prejudice of the substantial rights of the defendant on the merits. Section 2892 (22 Okla. St. Ann. § 410).

The statute dispenses with mere formality and technicality, but the requirement that the information must be direct and certain as it regards the party charged, the offense charged, and the particular circumstances of the offense charged, is imperative. Section 2884 (22 Okla. St. Ann. § 402). It must describe the defendant by his true name, if known.

The rule stated in 31 Corpus Juris 689, is :

“Where accused has been sufficiently described in the caption or title of the indictment or information, a reference to such description from the charging part thereof may be sufficient; or the name in the title may be made to refer to the charging part of the indictment by a grammatical construction which makes the meaning plain. The statement of a defendant’s name in the caption without stating it in the charging part or making any reference thereto in the charging part is insufficient.”

It is not essential to the validity of the indictment or information that the name of the defendant be correctly stated. Winfield v. State, 18 Okla. Cr. 257, 191 Pac. 609.

Tested by the rules of law which we have stated, it is apparent that the facts stated in the information are insufficient to charge the crime of offering, a bribe to' an election judge, and the information in question is insufficient, in that the name of the defendant does not appear in any part thereof, and no named person is charged in the information with having committed the offense.

It follows that the defendant’s demurrer to the information should have been sustained.

The only remaining question which we deem necessary to consider is the sufficiency of the evidence to sustain the verdict.

The record shows that at the close of the evidence a motion for a directed verdict on the ground that the evidence was not sufficient to warrant a conviction was overruled.

It is sufficient to say in this respect that we have examined fully the whole case, and our conclusion is that the evidence is entirely insufficient to show the commission of the offense attempted to be charged in the information.

For the reasons stated, the judgment is reversed, and the case will be remanded to the lower court, with direction to dismiss and discharge the defendant.

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


text:
    BILL HUNTER v. STATE.
    No. A-9267.
    Oct. 1, 1937.
    (72 P. 2d 399.)

      John W. Tillman and Fred A. Tillman, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullén, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction rendered on the verdict of a jury finding the defendant, Bill Hunter, gnüty of leaving the scene of an accident without giving information, leaving the penalty to be fixed by the court.

Motions in arrest of judgment and for a new trial were duly filed and were by the court overruled. Thereupon the defendant was sentenced to pay a fine of $50 and the costs.

The information charges that on the 30th day of November, 1935, in Osage county:

“The defendants, Ruby Buffalohide Warrior and Bill Hunter, then and there being, did then and there wrongfully and unlawfully drive and operate a certain automobile, to wit: a 1935 model Ford Y8 coupe, over and upon Main street, Prudom avenue, 7th street in the city of Paw-huska, Okla., and upon Highway No. 11, and while said defendants were so engaged in driving said automobile as aforesaid, and at a point on Main street in the city of Pawhuska, Okla., in the 100 block of said street said car which was at the time being driven by the defendant Ruby Buffalohide Warrior, ran into and over and collided with Mrs. Fannie Leahy, and said automobile so driven as aforesaid failed to stop and continued on to Prudom avenue in the city of Pawhuska where said occupants of the car aforementioned changed positions in said car and Bill Hunter took over the control and operation of said machine and continued on 7th street and on to Highway No. 11, and that the said defendants, Ruby Buffalohide Warrior and Bill Hunter did then and there and immediately thereafter said collision, knowingly, wrongfully and unlawfully refuse to stop1 and furnish such information as is required by law under section 10329, Okla. Stats. 1931 [47 Okla. St. Ann. § 104] contrary to,” etc.

The statute on which the information is founded, section 10329, St. 1931 (47 Okla. St. Ann. § 104), reads as follows:

“Whenever an automobile, motorcycle, or other motor vehicle whatsoever, regardless of the power by which the same may be propelled, or drawn, strikes any person or collides with any vehicle containing a person, the driver of, and all persons in control of such automobile, motor vehicle or other vehicle shall stop and such driver and person having or assuming authority of such driver shall further give to the occupant of such vehicle or person struck, if requested at the time of such striking or collision or immediately thereafter, the number of such automobile, motorcycle or motor vehicle, also the name of the owner thereof and his address, the names of the passenger or passengers not exceeding five in each automobile or other vehicle, together with the address of each one thereof.”

Section 10330, St. 1931 (47 Okla. St. Ann. § 105) reads:

“Any person violating’ any provision of this Act isi punishable by imprisonment in jail not exceeding one year, or by fine not exceeding five hundred dollars, or by both such fine and imprisonment.”

The record shows when the case was called for trial on December 10, 1938, the defendant by leave of court interposed a demurrer to the information on the statutory grounds, which was by the court overruled, exception reserved. Then the defendant filed a motion to dismiss on the grounds that:

“Ruby Buffalohide Warrior has plead guilty to the identical and same crime now charged against this defendant.
“That this defendant has further been a witness for the state in the case of State oh Oklahoma v. Ruby Buf-falohide Warrior in the district court of Osage county in which Ruby Buffalohide Warrior was charged with murder and was convicted of the crime of manslaughter; that said case in the district court was based upon the same collision, facts and circumstances in this case. That said defendant, Hunter was induced to believe if he so testified for the state he would be granted immunity and in pursuance thereto did testify for the state.”

Which motion was overruled.

The following facts are undisputed or fairly shown by the evidence:

On November 30, 1935, between 7 and 8 o’clock in the evening, Mrs. Fannie Leahy, an elderly lady, crossing Main street at the bus station in the city of Pawhuska, was struck, knocked down and run over by a Ford Y8 coupe. Ruby Buffalohide Warrior was driving tbe car, the defendant Hunter sitting by her side. The car continued on; after going two or three blocks the defendants changed seats; the defendant Hunter took the wheel and drove on out of the city, to the town of Nelagony and other points in the country. The defendant Hunter was apprehended early the next morning.

Layton Mitchell, chief of police, testified that the accident occurred between 7 and 8 o’clock in the evening; that the next morning the defendant in his office made a voluntary statement which was reduced to writing and signed by the defendant; that he read it to him, and the defendant read it also before he signed the same.

The statement reads:

“I, Bill Hunter,- have been advised of my constitutional rights and do hereby make the following statements on my own free will. I was with Ruby Warrior in a Ford Y8 coupe in the city of Pawhuska on Main street, when said car struck a lady down in front of bus station and both wheels ran over her body.
“I asked Ruby Warrior to stop the car. She never replied, only said, ‘Oh, my God,’ and drove on down Main street to Prudom, turned north on Prudom and went to the middle of the block and stopped. I asked her to let me drive the car, we changed sides and Ruby asked me to drive her out to- the farm, which is out north of Nelagony; while we were at the farm Homer Buffalohide and Louise Buffalohide drove out and told us the officers were looking for us. We all four then went to Bartlesville — I was riding with Homer in Ruby’s car, and Louise and Ruby rode in Homer’s car. Coming back from Bartlesville the lights on our car went out and we left it out on the Bar-tlesville road about 3 miles, question Was Ruby drunk when she hit the lady and run over her? Answer — Yes, she was pretty tight.
“[Signed] Bill Hunter
“Witnesses Geo. Leoanard L. O. Maze O. W. Henson Hary Long L. L. McCartney B. H. Kelsey
“Statement taken by Layton Mitchell Dec. 1 — 1935 325 AM.”

At the close of the state’s evidence, there was a motion for a directed verdict of acquittal in the form of a demurrer to the evidence, which was overruled. Exception reserved.

As a witness in his own behalf, Bill Hunter testified that Euby was driving' the car at the time the accident occurred; that he was sitting on the right-hand side of the seat in the car; that after the car hit Mrs. Leahy the wheels bounced as it rolled over the body, and then Euby just put it in second and he told her to stop, she did not, but said, “Oh, my God.” After going two' or three blocks, he asked her to let him drive, and she said, “All right”; that he took the wheel, and drove down to the town of Nelagony; that after his arrest he made a full, free, and voluntary statement of all that happened when asked about it by the officers, which statement was reduced to writing by Mr. Mitchell and signed by him in the presence of several witnesses.

He further testified as follows:

“Q. Now, Bill, I will ask you if you were told by any person representing you in a representing, capacity that if you give that testimony in the district court you would not be prosecuted yourself for any offense? A. Well, just Mr. Comstock. Q. Do you know to whom he had talked? A. Mr. Sim Carman. Q. You talked to Mr. Carman yourself? A. Yes, sir. Q. Now, Bill, is that the reason you gave your testimony against Euby Buffalohide Warrior? A. Yes, sir. Q. You have at all times assisted the state in the investigation and prosecution of Euby Buffalo-hide? A. Yes, sir.”

On cross-examination be stated that he had been driving with Ruby all that afternoon, and that four of them had drunk about three pints of whisky; that after leaving Nelagony he drove back to Pawhuska and stopped three or four blocks from the bus station; that they met Homer Buffalohide and his wife, and, after talking with them, they all drove to their home and from there he went to Bartlesville.

Asked if he did not make the statement in answer toi the question, “After the accident when you took the wheel of the car why didn’t you come back?” he said, “I don’t know,” he answered, “Yes.”

At the close of all the evidence counsel for the defendant renewed his demurrer to the evidence and moved the court to1 instruct the jury to return a verdict of not guilty on the ground “that the evidence is wholly insufficient as a matter of law to> permit the case to go to the jury.”

The demurrer and motion were overruled. Exceptions reserved.

The noticeable assignments of error are confined to four points.

The first is the overruling of the demurrer to the information.

The information charges specifically by a detail of the essential facts constituting the offense.

An information, though joint in form, is regarded as a several charge against each defendant, where it charges an offense which may be committed by one person alone.

The court committed no error in overruling the demurrer on the ground that more than one offense is charged in the information.

The second point is that the court erred in overruling the defendant’s motion to dismiss the cause on the ground that he testified as a witness for the state in the case of the ¡State v. Ruby Buffalohide Warrior, wherein his eo-defendant was convicted of the crime of manslaughter in the district court of Osage county, and that he was induced to believe that if he so testified he would be granted immunity.

It is sufficient to say that there is nothing in the record before us tending to show that defendant was not a voluntary witness for the state on the trial of his co-defendant in said district court.

Before any person can secure immunity under section 27, art. 2, of the Constitution, “ ‘on account of incriminatory evidence, given by him as. a witness’ for the state ‘such witness must have testified under an agreement made with the prosecuting attorney, approved by the court, or such witness must have claimed the privilege of silence, which was by the court denied, and such witness must have been compelled by the court to so testify.’ ” Rudolph v. State, 32 Okla. Cr. 265, 240 Pac. 761, 763.

In this connection it is also asserted that the trial court had no jurisdiction to try this defendant.

The evidence shows that both of the defendants were under the influence of intoxicating liquor at the time of the events about which the defendant testified, in violation of section 10324, St. 1931 (47 Okla. St. Ann. § 93), making the driving of a motor vehicle on any highway within the state by a person under the influence of intoxicating liquor a felony.

The rule is well settled that evidence is admissible that tends directly to prove the defendant guilty, although it may also tend to prove a distinct felony and thus prejudice the accused. In support of this rule see Bouyer v. State, 57 Okla. Cr. 22, 43 Pac. 2d 153, 154. In the Bouyer Case the prosecution was founded on section 10329, supra (47 Okla. St. Ann. § 104). In syllabus 4 and 5 tbis court held:

“Evidence is admissible that tends to prove the defendant guilty of the offense charged, even though it may tend to prove a different offense, when both offenses are so closely related or connected as to form a part of the res gestae.”
“Evidence which is relevant to> the issue is not rendered inadmissible by reason of the fact that it tends to prove the defendant guilty of an offense other than the one charged in the information.”

The third ground upon which error is assigned is that the verdict of the jury is contrary to both the law and the evidence, and that the court erred in refusing to' grant the motion to1 direct a verdict of not guilty.

In our opinion, a clear case is made out against this defendant. According to his own statements and the physical facts, he is guilty as charged, and, if it be possible to make out a case of aiding and assisting in the commission of an offense, it must be admitted that it has been done in this case, as to this defendant. The evidence not only shows both defendants guilty, but demonstrates that this defendant knew at the time that he was violating the law.

Finally, it is contended that the court erred in refusing to give a certain requested instruction and erred in the instructions given, all over the objection and exception of the defendant.

We have examined the instruction refused and the instructions given to' which no objection was made or exception taken, except, after tbe instructions bad been given, counsel for tbe defendant stated: “We desire at this time to take exceptions to eacb and every instruction of tbe court.” Tbe court gave tbe jury full and fair instructions. There was no error.

It appears that tbe defendant bad a fair trial. His guilt was established beyond a reasonable question, and no sufficient cause is shown for interference with tbe verdict. The judgment of tbe lower court is therefore affirmed.

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


text:
    BEN C. LOUGHRIDGE v. STATE.
    No. A-9272.
    Oct. 15, 1937.
    (72 P. 2d 513.)

      Mathers & Mathers, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Tom Finney, Asst. Atty. Gen., and Lewis R. Moms, Go. Atty., for the State.
   BAREFOOT, J.

The defendant was charged by information in the district court of Oklahoma county with the crime of “obtaining money by means and use of a false and bogus check,” was tried and convicted and sentenced to serve a term of two years in the penitentiary, and from this judgment and sentence he has appealed.

The first error complained of by defendant is that the proof shows a case of forgery and not one of obtaining money by means of a bogus check, and that he should have been tried, if at all, for forgery, and not upon the other charge, and that for this reason the verdict of the jury is contrary to law.

The defendant was charged in the information with the crime of “obtaining money by means and use of a certain forged and bogus check,” in that he obtained from the Tradesmen’s National Bank of Oklahoma City the sum of $225 by means and use of a certain forged and bogus check.

To sustain this charge the evidence on behalf of the state revealed that the defendant resided in Ardmore, Carter county, Oída.; that for many years he and his father had been acquaintances and friends of E. A. Walker, the president of the Tradesmen’s National Bank of Oklahoma City, who had also' resided at Ardmore for many years and was president of the First National Bank of Ardmore. The defendant had been formerly connected as bookkeeper with the Loughridge Freight Lines of Ard-more, but had ceased this connection prior to the charges here made. The defendant came from Ardmore to Oklahoma City, and went to the Tradesmen’s National Bank between 9 and 10 o’clock on the morning of December 22, 1983, where he met Mr. Walker; renewing his acquaintance with him and telling him he was running a truck line in Ardmore; and at this time told him he had just seen a suit of clothes in a window that could be bought for $25, that it was a bargain, and that a suit of the same kind would cost $35 or $40 in Ardmore, and asked Mr. Walker if he would O. K. a check which he had already written out for that amount on the First National Bank of Ardmore, and of which Mr. Walker was the president. Mr. Walker asked the defendant: “Ben, are you sure you have got the money down there?” and the defendant replied: “Oh, yes. I wouldn’t write a check without having the money,” and at the same time defendant exhibited a bunch of checks on the Ardmore bank that had been paid and returned to him as vouchers. Mr. Walker, after further conversation with the defendant, and calling his attention to the fact that the check was written out of the ordinary, “The $25 was too far over to the right,” the defendant replied, “Well, you know me,” and Mr. Walker said, “Yes, 1 think I do.” He then O.K.’d the check which he says was for $25. The next day, Saturday, December 23d, the same check was presented at the teller’s window, but instead of being for $25 was for $225, and having the O.K. of Mr. Walker thereon was paid by the teller, Mr. Pierson. On the same day that the check was paid the teller, Mr. Pierson, presented the check to Mr. Walker, and said: “I am a little suspicious of this check. It was O.K.’d yesterday and not presented until today.” Mr. Walker then for the first time observed that the check had been raised from $25 to $225. A pliotostatie copy of the check is attached to the case-made and a casual examination of the same reveals that it had been raised as above stated. The check was forwarded to the First National Bank of Ard-more on the date it was received, and was by that bank protested and unpaid and returned to the bank at Oklahoma City. Ed Sandlin, the cashier of the First National Bank at Ardmore, testified that the Loughridge Freight Lines had an account in the bank there which was closed by the books of the bank on February 21, 1933, which was nearly ten months prior to1 December 22, 1933, the date when the check was cashed in Oklahoma City. He also testified that the defendant had no personal account at the bank either before or after that date. Mr. Walker testified that the defendant came to Oklahoma City some two or three months after the check had been protested, and had a conversation with him at his office in the Tradesmen’s National Bank, and in the presence of Mr. C. W. Hurd, of Ardmore. That the defendant said he wanted to settle it, and that he thought in the course of time he could pay it off if he would drop' the prosecution; that he told him, “That the matter was in the hands of the county attorney, and he would have to take it up with him; that he would not accept money after a case was in court for prosecution,” and further said: “Ben, what in the world did you mean by raising that check that way? I was never more surprised in my life to- see an intelligent man like you do a thing like that.” The defendant replied that “he had been drinking, some at the time and he thought he would get home before the check got there; he did not mean to beat me, and he would like to pay it off if given time and opportunity.” This testimony was corroborated by the witness C. W. Hurd, of Ardmore.

The defendant, testifying in his own behalf, admitted writing and cashing the check. He testified that he came from Ardmore to Oklahoma City, arriving there a,t about 8 p. m. Friday night, December 22, 1933, and that he wrote the check that night at the hotel and got it O.K.’d by Mr. Walker about 9 o’clock Saturday morning, December 23d; that it was for $225 at the time it was O.K.’d by him; that he immediately cashed it, and that it was not changed in any way; that a part of the money was used for the purchase of a suit of clothes; that he intended to use the other money to pay off a loan on a diamond ring he had with a loan company in Ardmore, for $75, and was going to sell the ring for $150 and would make $75. He also denied the conversation as related by Mr. Walker with reference to trying to settle the case by paying it off. He said he was placed in jail Saturday night and did not get out of jail until Tuesday, December 26th, and went to see the officials of the First National Bank at Ardmore at that time, and they referred him to Mr. Walker; that he saw Mr. Walker some weeks thereafter. Witnesses were called testifying to the good character of defendant prior to the time these charges were instituted against him.

The statute under which defendant is prosecuted (Okla. St. 1931, § 2086; 21 Okla. St. Ann., § 1541), reads as follows:

“Every person who, with intent to cheat and defraud, shall obtain or attempt to obtain from any person, firm or corporation, any money, property, or valuable thing, of the value of twenty ($20) dollars, or less, by means or by use of any trick or deception, or false or fraudulent representation, or statement or pretense, or by any other means or instrument or device commonly called the ‘confidence game,’ or by means or use of any false or bogus checks, or by any other written or printed or engraved instrument or spurious coin, shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a finq not to exceed one hundred ($100) dollars, or by imprisonment in the county jail for not more than thirty (30) days, or by both such fine and imprisonment. If the value of the money, property or valuable thing referred to in the preceding paragraph, be more than twenty ($20) dollars, any person convicted hereunder shall be deemed guilty of a felony and shall be punished by imprisonment in the state penitentiary, for a term not exceeding seven (7) years, or by a fine not to exceed five hundred ($500) dollars, or by both such fine and imprisonment. The term ‘false or bogus check’ shall include checks or orders given for money or property which are not honored on account of insufficient funds of the maker to pay same, as against the maker or drawer thereof, the making, drawing, uttering or delivering of a check, draft or order, payment of which is refused by the drawee, shall be prima facie evidence of intent to defraud and the knowledge of insufficient funds in, or credit with, such bank or other depository ; provided, such maker or drawer shall not have paid the drawee thereof the amount due thereon, together with the protest fees, within five days from the date the same is presented for payment; and, provided, further, that said check or order is presented for payment within 30 days after same is delivered and accepted.
“The word ‘credit,’ as used herein, shall be construed to mean an arrangement or understanding with the bank or depository, for the payment of such check, draft or order.”

This statute has been construed by this court both before and since it was amended by chapter 33, Sess. Laws 1923. It is useless to quote from these cases, and we merely cite them as follows: Gunther v. State, 42 Okla. Cr. 129, 276 Pac. 237; Mason v. State, 23 Okla. Cr. 111, 212 Pac. 1028; Kilgore v. State, 25 Okla. Cr. 69, 219 Pac. 160; State v. Baxley, 40 Okla. Cr. 361, 269 Pac. 326; Bennett v. State, 21 Okla. Cr. 27, 204 Pac. 462; Beach v. State, 28 Okla. Cr. 348, 20 Pac. 758. A reading of these cases will immediately convince one that the construction placed upon this statute by this court lias been a liberal one, giving it force and effect. The question involved here is: Did this defendant, by fraud and deceit, receive from the Tradesmen’s National Bank, without any right, its funds for his own use? A reading of the testimony in this case immediately answers this question. The verdict of the jury finding the defendant guilty is a finding that the testimony offered by the state is true. If it was true, then this defendant, with intent to deceive and defraud, obtained from the bank the $225 as charged. Under this testimony the defendant knew at the time he presented the check that it would not be paid; because he knew that neither he nor the company lie was supposed to represent had any funds in the bank, and that the account had been closed 10 months prior to the giving of the check. In answer to an inquiry as to whether he had the funds in the bank, he answered he did. In addition to the statements made by him, he took from his pocket a bunch of canceled checks in a further attempt to' deceive. These facts, coupled with the alteration of the check and changing it from $25 to $225, shows an absolute intent on the part of the defendant to cheat and defraud the bank of this money. Certainly the thought in his mind that he might some day pay it back should not relieve him from the penalty of this crime. There is no- merit to the contention that the evidence of the state showed this to be a forgery, and therefore the defendant could not be prosecuted under this statute. The fact that the defendant might have been charged with forgery is no reason for his not being charged under this statute. It has often been held by this court that evidence is admissible upon a trial in a criminal case which' tends to prove the defendant guilty of the crime with which he is charged, although it also may prove or tend to prove another separate and distinct crime. This law is supported by the very cases cited in the brief of defendant. See Miller v. State, 9 Okla. Cr. 255, 131 Pac. 717, L.R.A. 1915A, 1088; Hunter v. State, 3 Okla. Cr. 533, 107 Pac. 444; McLaughlin v. State, 18 Okla. Cr. 627, 197 Pac. 717; Littrell v. State, 21 Okla. Cr. 466, 208 Pac. 1048; Sledge v. State, 40 Okla. Cr. 421, 269 Pac. 385; Carmack v. State, 44 Okla. Cr. 171, 279 Pac. 964. See, also, 25 C. J., p. 658, and State v. Stewart, 9 N.D. 409, 83 N.W. 869. In 35 A.L.R. p. 360, the editor, in a note, says:

“One who knowingly presents a forged check to a bank, and obtains money thereon from the cashier, is guilty of obtaining money by false pretenses. Reg. v. Prince, [1868] L.R. 1 C.C. (Eng.) 150, 11 Cox, C.C. 193, L.T.N.S. 364, 38 L.J.Mag.Cas.N.S. 8, 17 Week. Rep. 179.
“And in Reg. v. Martin, [1879] L.R. 5 Q.B.Div. (Eng.) 34, 41 L.T.N.S. 531, 14 Cox, C.C. 375, L.J.Mag.Cas.N.S. 11, 28 Week. Rep. 232, 44 J.P. 74, where the conviction of forgery of one who gave, in payment of property, a worthless check signed with a fictitious Christian name, was quashed upon the ground that it was not a forgery, it was stated that he was guilty of the offense of obtaining property by false pretenses.”

From the above findings, it is the order of the court that the judgment of the district court of Oklahoma county is affirmed.

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