text:
    Ex parte DOCK SMITH.
    No. A-5974.
    Opinion Filed Jan. 9, 1926.
    Rehearing Denied March 6, 1926.
    (242 Pac. 284.)

      See, also, 30 Okla. Cr. Ill, 235 P. 554.
    John B. Ogden, for the petitioner.
    The Attorney General, for the State.
   BESSEY, P. J.

In the application for the writ it is made to appear that the petitioner was convicted of three separate violations of the prohibitory law, in the county court of Carter county. On the 30th day of April, 1925, a commitment was issued, based upon one of these convictions, reciting that the petitioner was on the 13th day of October, 1924, adjudged guilty of unlawful possession of intoxicating liquor, and that he was adjudged to pay a fine of $250 and costs, amounting to $35, and to serve a term of 90 days in the county jail; another commitment, bearing date of April 23, 1925, recites that on the 22d day of October, 1924, the petitioner was adjudged guilty of the unlawful possession of intoxicating liquor, with a fine assessed at $100 and costs, taxed at $41.25, and to serve a term in the county jail; a third commitment, bearing date of April 30, 1925, recites that on, the 6th day of October, 1923, the petitioner was adjudged guilty of the unlawful possession of intoxicating liquor, with a fine assessed at $50 and costs, amounting to $34.75, with confinement in the county jail for a period of 60 days.

The petitioner claims that he has served the longest of the jail sentences named in these commitments, and that, since none of the commitments designate the time of the commencement of the jail sentence, the periods of imprisonment named run concurrently, and that, since he has served the longest term named in any of the commitments, and has tendered the balance of the fine and costs due under the terms of this particular commitment, he is entitled to his liberty.

To this petition the Attorney General has interposed a demurrer to the effect that, upon the facts stated, the petitioner is not entitled to the relief sought.

It has been held that the time fixed for the execution of a sentence, or the commencement of its execution, is not one of its essential elements, and that, where the penalty is imprisonment, the sentence may be satisfied only by the suffering of the actual imprisonment imposed. Ex parte Alexander, 5 Okla. Cr. 196, 113 P. 993; Ex parte Eldridge, 3 Okla. Cr. 499, 106 P. 980, 27 L. R. A. (N. S.) 625, 139 Am. St. Rep. 967.

Since the rendition of these ’decisions, the Legislature, in 1913, enacted a statute (section 6332, Comp. Stat. 1921) providing that the fine and costs are a part of the penalty, and if not paid “shall” be enforced by imprisonment. Since the enactment of this statute, it follows that in every judgment where a penalty of imprisonment is imposed, with fine and costs, the portion relating to fine and costs automatically becomes a part of the judgment as a whole, and, to satisfy such judgment, in addition to the period of imprisonment named, a further period of confinement shall be added to satisfy the fine and costs, unless and except the accused satisfy the fine and costs by actual payment. In re O’Daniell, 9 Okla. Cr. 720, 131 P. 963; Ex parte Miller, 27 Okla. Cr. 96, 225 P. 184; Ex parte Holden, 31 Okla. Cr. 133, 237 P. 622.

The fine and costs may be satisfied by payment in money, but, if the person convicted fails to make such payment, the statute provides that such fine and costs shall be enforced by imprisonment, until the total amount of the fine and costs are satisfied at the rate of $1 a day.

Now where there are a series of convictions and judgments thereon, bearing in mind that our statute contemplates that each- judgment shall be satisfied separately, and applying such provisions to this case, it would seem logical for the sheriff to confine the accused upon the first conviction for the period of imprisonment therein named, followed by confinement for the fine and costs therein named, in the event the same are not paid; that at the end of that period of confinement, the imprisonment named in the judgment upon the second conviction, and imprisonment for the fine and costs therein, would begin and terminate in like manner; and so with the third. This conclusion is deduced from and based upon the decisions cited and the provisions of sections 6332, 2782, 2774, and 2303, Comp. Stat. 1921.

Decisions to the contrary in other states; and in this state prior to the passage of the 1913 statute herein referred to, will not control in the face of the policy outlined in the statutes and decisions cited.

We hold, therefore, that under the conditions here shown the periods of imprisonment do not run concurrently, and that the first judgment must be satisfied in full before the second can be held to begin, and the second, before the third.

The demurrer of the Attorney General is sustained, and the writ denied.

DOYLE and EDWARDS, JJ., concur.


source: Caselaw Access Project

author: BESSEY, P. J.

license: Public Domain

text:
    ABE KEARNS v. STATE.
    No. A-5245.
    Opinion Filed Jan. 16, 1926.
    (242 Pac. 777.)
    I. H. Lookabaugh, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

Abe Kearns was found guilty in the county court of Blaine county of the sale of intoxicating liquor, with his punishment fixed by the jury at a fine of $150 and imprisonment for 60 days. The evidence against the plaintiff in error was obtained and given by a paid informer in the employ of the sheriff.

Where one employed by a sheriff to entrap violators of the prohibitory law admits that he was hired to “catch bootleggers,” the defendant on trial has a right, on cross-examination, to interrogate him about the details of such employment — whether he was supplied with and kept liquor for that purpose, whether he made statements or admissions to others as to the methods he employed, indicative of perjury, and as to all other matters touching his interest and his credibility as a witness. Clark v. State, 31 Okla. Cr. 383, 239 P. 275.

Nearly all of the testimony of this character was excluded. This was prejudicial, and particularly so in this case, because the paid informer upon whose testimony the conviction rests was not corroborated by any other witness. The defendant had a right to show to the fullest extent this witness’ possible want of good faith and his undue interest in the prosecution, and whether the details of the system he used to procure evidence were such as to make his testimony worthy of confidence.

DOYLE and EDWARDS, 'JJ., concur.


text:
    FRANCIS McCaFFERTY v. STATE.
    No. A-5216.
    Opinion Filed Jan. 16, 1926.
    (242 Pac. 778.)

      J. Q. A. Harrod, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

Francis McCafferty, plaintiff in error, by verdict of a jury was found guilty of the illegal possession of corn whisky, with his punishment assessed at a fine of $50 and confinement in jail for SO days. '

Two peace officers saw plaintiff in error in front of the State Capitol conversing with a third person, after which he drove away in an automobile, and the officers followed him. About a half mile east of the Capitol he left the road and drove into a field or vacant ground and meandered about in an uncertain manner and finally stopped. The officers came up to where the plaintiff in error was and made a search of the grounds thereabouts, and found a 5-gallon jug of whisky in the weeds, about 150 yards away.

The whisky was not in the possession of the plaintiff in error; he was not seen to have put it where it was found, nor to have taken anything from the spot where it was; no facts or statements were shown tending to prove that it had ever been in his possession, save only the suspicious movements of the plaintiff in error, as above related. The evidence is not sufficient to support the verdict.

The cause is reversed, with directions to dismiss.

DOYLE and EDWARDS, JJ., concur.


author: EDWARDS, J.

text:
    ED WARD v. STATE.
    No. A-5188.
    Opinion Filed Jan. 16, 1926.
    (242 Pac. 575.)
    W. P. Hickok, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the county court of Dewey county for a misdemeanor, the plaintiff in error, hereinafter called defendant, has appealed.

Several assignments of error are argued in the brief, none of which have any merit except the third. This assignment is that, during the pendency of the prosecution against the defendant, Hoyt & Butler, attorneys, on two different occasions appeared as counsel for the defendant, and, upon the trial of the case, this firm, by Fred L. !H|oyt, a member of the firm, appeared for and assisted in the prosecution and conducted the cross-examination of the defendant, over his objection.

We have examined the record and find that on October 1, 1923, the defendant filed a petition for a continuance signed by Hoyt & Butler, his attorneys. Indorsed thereon is a stipulation for continuance signed by them and the county attorney. Again on January 7, 1924, a further motion for continuance was filed by the defendant signed by Hoyt & Butler, his attorneys, and indorsed thereon is a stipulation between them and the county attorney. Upon the trial, Fred L. Hoyt, of the firm, appeared for the state. Objection was made that his firm had appeared for defendant. Thereupon the county attorney informed the court that the firm had been retained to assist him in the case, and Mr. Hoyt informed the court that he had signed applications for continuance as a matter of accommodation, but had not received a fee and had not discussed the case with defendant, and had, in fact, forgotten signing the same. The court then permitted him to appear for the prosecution, and he conducted the cross-examination of the defendant.

A somewhat similar question, whether one, who has acted as a prosecuting officer, may, subsequent to the expiration of his term, appear for a defendant, has arisen in other courts. It is generally held that he cannot do so. Gaulden v. State, 11 Ga. 47; In re Stephens, 77 Cal. 357, 19 P. 646; Weeks on Attorneys and Counsellors (2d Ed.) § 120, pp. 254, 255; Commonwealth v. Gibbs, 4 Gray (Mass.) 146; Webber v. Barry, 66 Mich. 127, 33 N. W. 289, 11 Am. St. Rep. 466; State v. Howard, 118 Mo. 127, 24 S. W. 41. There are some exceptions to this rule. People v. Johnson, 40 Colo. 460, 90 P. 1038, and see State v. Howard, 118 Mo. 127, 24 S. W. 41. It is fairly well settled in civil cases that an attorney, who acted as such for one side, may not render services professionally for the other side. 6 Corpus Juris, 619, 1053; In re Boone (C. C.) 83 F. 944; Weidekind v. Tuolumne, etc., 74 Cal. 386, 19 P. 173, 5 Am. St. Rep. 445.

This court in the case of Steeley v. State, 17 Okla. Cr. 252, 187 P. 821, under a state of facts similar to that disclosed by the record here, reviewed the authorities, and held that, where an attorney had once appeared for a defendant in a criminal action, he was thereafter disqualified to appear and prosecute. That case states the sound rule. We adhere to it fully. See, also, Dodd v. State, 5 Okla. Cr. 513, 115 P. 632; Evans v. State, 5 Okla. Cr. 643, 115 P. 809, 34 L. R. A. (N. S.) 577; Brown v. State, 9 Okla. Cr. 382, 132 P. 359; People v. Gerold, 265 Ill. 448, 107 N. E. 165, Ann. Cas. 1916A, 636.

Where one appears for an accused as his attorney, whether he be paid for his services or not, and whether he is informed by his client of the facts surrounding his defense or not, such appearance precludes him from subsequently appearing or participating on the other side of the same case. The rule must be rigidly adhered to. Courts owe a duty to themselves, to the public, and to the legal profession. The due and orderly administration of justice, the honor of the legal profession, and the dignity of the court forbid such practice. The attorney must not transgress, and the court must not permit it to be done. An observance of the rule will prevent the dishonest practitioner from fraudulent conduct and will prevent the honest practitioner from putting himself in a questionable position. It was the duty of the trial court to have forbidden the appearance. We do not impute to the attorneys here any dishonest purpose, but a conviction under such circumstances, irrespective of the guilt of the defendant, cannot be permitted to stand.

The case is reversed and remanded.

BESSEY, P. J., and DOYLE, J., concur.


text:
    GARRET MAYS v. STATE.
    No. A-5074.
    Opinion Filed Jan. 16, 1926.
    (242 Pac. 580.)
    Wilkinson & Saye, for plaintiff in error.
    The Attorney General and V. P. Crowe, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiff in error, Garret Mays, here referred to as the defendant, was engaged in the stock business on a large scale, near Ryan, Okla. For a number of years he raised, pastured, bought, and sold cattle; the financial features of the business being handled chiefly by the People’s Bank & Trust Company, of Ryan, of which bank M. H. Barnett was president. During this period of years, the defendant, from time to time, executed some 30 or 40 notes and mortgages in favor of this bank, and maintained a checking account there. ,H)e was in the habit of buying and selling cattle, feed, and pasture at will, and this bank, to a large extent, was his bookkeeper and general fiscal agent.

Among other things, the bank permitted the defendant to sell cattle under mortgage to the bank at will, and turn in the proceeds of such sales to the bank to be applied on obligations there, sometimes reserving portions of such proceeds to take care of running expenses. In the transaction here at issue the defendant sold 27 head of cattle branded “V” and directed the proceeds to be applied on an obligation to another bank. After the defendant’s notes and accounts, renewals, and partial payments with the People’s Bank & Trust Company had become involved and confused, these old friends quarreled and disagreed, and in the course of efforts to make a final adjustment the president of the bank instituted this prosecution against the defendant, and also commenced a civil action to recover the proceeds of the sale of these 27 head of cattle from the other bank. This civil suit was decided adversely to the claims of the prosecuting witness.

The statute under which this prosecution was brought (section 2215, Comp. Stat. 1921) reads as follows :

“Any mortgagor of personal property, or his legal répresentative, who, while such mortgage remains in force and unsatisfied, conceals, sells, or in any manner disposes of such property, or any part thereof, * * * without the written consent of the holder of such mortgage, shall be deemed guilty of a felony, and shall, upon conviction, be punished by imprisonment in the penitentiary for a period not exceeding three years or in the county jail not exceeding one year, or by a fine of not to exceed five hundred dollars; Provided, that the writing containing the consent of the holder of the mortgage, as before specified, shall be the only competent evidence of such consent, unless it appear that such writing has been lost or destroyed.”

A strict construction of a statutory crime of this nature must sometimes yield to a common sense construction of its manifest purpose. There may be cases where a written notice is waived and where the fraud charged.must be shown to be actual and not merely constructive. Watson v. State, 11 Okla. Cr. 542, 149 P. 926; Thompson v. State, 20 Okla. Cr. 211, 201 P. 1004; Weitz v. State, 24 Okla. Cr. 56, 215 P. 962.

It is probably beyond the power of the Legislature to provide that one should be branded as a felon where the wrong complained of was invited by the person injured. Watson v. State, supra.

We find no flagrant, outstanding errors on the part of the trial court. It does seem, however, that the court unduly limited the defendant in showing fully that the defendant had tacit permission from the prosecuting witness to sell these particular cattle.

Instruction No. 6 was as follows:

“You are instructed, gentlemen of the jury, that under the law of this state, even though the mortgage may contain a written provision providing that the mortgaged property may not be sold without the written consent of the mortgagee, such provision may be waived, and the mortgagee may consent orally to the sale of said cattle, or he may consent by a course of conduct indicative of an intention to waive such provision, provided there is no intention on the part of said mortgagor to defraud said mortgagee and that no fraud actually occurred, irrespective of the intention of the parties.
“And you are instructed, gentlemen of the jury, that even though the mortgage offered in this case may contain the provision providing that the cattle could be sold only on the written consent of the People’s Bank & Trust Company, yet if you further believe that the president or managing officer of said bank had consented to the sale of said cattle or permitted the mortgagor to sell said cattle for a period of time without protest, then such conduct upon the part of the mortgagee would constitute a waiver of said provision, provided there was no intention on the part of the mortgagor in selling said cattle to perpetrate a fraud upon the mortgage and provided further that no fraud actually occurred by which the mortgagee was defrauded of or prevented from receiving the proceeds of such cattle so sold.”

Under the circumstances in this case, we think that the provisos to the instruction above, italicized, ignored the fact that the person injured may have invited the inr jury, and that the defendant may not have been actuated by any felonious intent.

This seems to have been an attempt to force a monetary settlement by means of a criminal prosecution, a procedure not favored by the courts.

This court, in Watson v. State, supra, in construing the statute making it a felony to remove or dispose of mortgaged property, said:

"The intention of this act was to. penalize any mortgagor who removed his property from one county to another in this state, and who, by such removal, either defrauded the mortgagee or intended to defraud him.”

This declaration in the Watson Case probably caused the trial court herein to modify and limit instruction No. 6 as appears in the provisos, but in this case we are of the opinion that the limitation should have extended only to actual fraud with criminal intent, and, under the peculiar circumstances of the case, should have excluded constructive fraud.

To construe this statute strictly would enable a mortgagee to ambush a mortgagor and send him to the penitentiary in instances where the mortgagor, in good faith, did what the mortgagee permitted, or even encouraged, him to do.

This is a long record, with much detail involving conflicting evidence about cattle brands, uncertain payments, credits, and disbursements, a lucid' analysis of which would be difficult and unprofitable.

The judgment of the trial court is reversed..

DOYLE and EDWARDS, JJ., concur.


text:
    LUCILLE JOHNSON v. STATE.
    No. A-5221.
    Opinion Filed Jan. 16. 1925.
    (242 Pac. 580.)
    E. T. Barbour, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

This cause was submitted on the record at the October, 1925, term of this court, and 10 days given to plaintiff in error in which to file brief. No brief has ever been filed.

Under the rules of this court, under such circumstances, the court will examine the record, and if no prejudicial error appears on the face of the record, the information is sufficient, and the evidence sustains the verdict, the cause will be affirmed.

No error appearing, and the evidence being sufficient, and the instructions fair to the plaintiff in error, the cause is affirmed.

DOYLE and EDWARDS, JJ., concur.


author: DOYLE, J.

text:
    Ex parte MAJOR DUNN.
    No. A-5861.
    Opinion Filed Jan. 18, 1926.
    (242 Pac. 574.)
    Hugh M. Bland and H. B. Teehee, for petitioner.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for respondent.
   DOYLE, J.

,The petition for writ of habeas corpus shows that in September, 1925, in the district court of Cherokee county, the petitioner was convicted of abandonment as defined in chapter 78, Session Laws 1923, and was sentenced by the court to imprisonment in the state penitentiary for a term of ten years. It is averred that his imprisonment is unlawful for the following reasons:

“First, that said district court did not have jurisdiction to render the judgment involved for the reason that at the time of the commission of the offense charged the same was a misdemeanor, over which the county court of Cherokee county had exclusive jurisdiction.
“Second, if it be determined that said district court had jurisdiction of the subject-matter, the said court did not acquire jurisdiction of the person of your petitioner necessary and requisite to proceed with the trial and determination of the case, for the reason that no information was filed by the proper authority in the district court to give such jurisdiction as required by law.”

It appears from the record that on August 18, 1923, a complaint was filed in the county court charging petitioner with abandonment of his wife, Lula Dunn, and their two minor children, Major Dunn, Jr., three years of age, and Pauline Dunn, one year of age. On August 22, 1923, a warrant issued on the complaint and the petitioner was arrested. On December 17, 1923, an information was filed in the district court of Cherokee county, charging the offense of abandonment and desertion. On January 26, 1924, a preliminary hearing was had before the county judge. On February 1, 1924, the original information was refilled in the district court. In September, 1924, a trial was had which resulted in the judgment and sentence.

The information filed in the district court in substance charges that in Cherokee county on the 28th day of November, 1921, Major Dunn did then and there, without good cause or excuse, willfully and unlawfully abandon his wife and their two minor children, and neglects and refuses to maintain or provide for the said wife and children since the 28th day of November, 1921, and that by reason of said abandonment, desertion, and neglect, and refusal to maintain and to provide for her and their said minor children, the said Lulu Dunn and said minor children are in destitute and necessitous circumstances and have no means of support.

The offense defined by the statute is a continuing offense, and is properly charged by a continuando as alleged in the original complaint and in the information filed in the district court.

“A continuing offense is a transaction or a series of acts set on foot by a single impulse, and operated by an un-intermittent force, no matter how long a time it may occupy.” Wharton, Cr. PI. 474.

The amendatory act was approved and became effective March 28, 1923', and was in effect more than five months before the original complaint was filed.

It is a well-settled general rule that a writ of habeas corpus cannot be invoked as a means of correcting errors or irregularities, or as a substitute for an appeal or writ of error. There must be illegality or irregularity sufficient to render the proceedings void. In re Wilkins, 7 Okla. Cr. 422, 115 P. 1118.

In Ex parte Grant, 32 Okla. Cr. 217, 240 P. 759, we say:

“The office of the writ of habeas corpus is to afford the citizens a speedy and effective method of securing his release when illegally restrained of his liberty. Its scope, when directed to an inquiry into the cause of imprisonment in judicial proceedings, extends to questions affecting the jurisdiction of the court and the sufficiency in point of law of the proceedings. Mere errors or irregularities in a judgment or proceeding of a court under and by yirtue of which a person is imprisoned, which are not of such a character as to render the proceedings, cannot be reviewed on an application for a writ of habeas corpus. Where a prisoner in custody under sentence of conviction seeks to be discharged on habeas corpus, the inquiry is limited to the questions whether the court in which the prisoner was convicted, had jurisdiction of the person of the defendant and of the crime charged, and did the court have jurisdiction to render the particular judgment.”

And see Ex parte Woods, 7 Okla. Cr. 645, 125 P. 440.

The information here correctly charges a felonious abandonment and desertion of the defendant’s wife and minor children, and the mere fact that the same commenced anterior to the passage and approval of the amendatory act did not affect the jurisdiction of the district court to try the information.

It appears that petitioner was duly given a preliminary examination before the county judge, sitting as a committing magistrate, and on January 29, 1924, was held to the district court for the crime of abandonment; that on February 1, a duly certified transcript, including the information, was filed with the clerk of the district court, and that the information was refiled February 1, 1924, in the district court.

It is claimed that the county attorney filed the information against petitioner before the preliminary, and therefore the district court did not acquire jurisdiction, and that the proceedings thereafter were void. It may be that the original filing was a nullity and of no effect, but when the information was refiled, after the preliminary examination was had and a transcript of the proceedings filed with 'the clerk of the court, the district court had jurisdiction of the person of the defendant and of the crime charged.

For the reasons stated, the writ of habeas corpus was and is refused.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    H. L. WOODALL v. STATE.
    No. A-5212.
    Opinion Filed Feb. 1, 1926.
    (242 Pac. 1052.)

      J. M. Dickerson and White & Reid, for plaintiff .in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was tried and convicted upon an information which charges that in Le Flore county, July 11, 1925, “H. L. Woodall, then and there willfully, unlawfully, intentionally, and feloniously made an assault in and upon one A1 Porter with a certain sharp and dangerous weapon, to wit, a knife, which he, the said H. L. Woodall, then and there had and held, and did then and there with said knife unlawfully, willfully, intentionally and feloniously cut, stab, and wound the said A1 Porter In and upon the head, face, and body with the unlawful and felonious intent then and there on the part of him the said H. L. Woodall to kill and murder the said A1 Porter, contrary to,” etc.

The jury returned the following verdict:

“We, the jury drawn, impaneled, and sworn in the above-entitled cause, do upon our oaths find the defendant, H. L. Woodall, guilty of assault with a sharp and dangerous weapon as charged in the information herein, and fix his punishment at one year and one day in the state penitentiary.”

Motions for new trial and in arrest of judgment were duly filed and overruled. On February 11, 1924, judgment was pronounced in pursuance of the verdict. An appeal by case-made was perfected.

A1 Porter testified:

“I went in Mr. Woodall’s store; Mr. Fox and Mr. Kennedy were there. I says, ‘Mr. Woodall, I want to pay you this dollar for bringing the witnesses up to Heavener,’ and I gave him a $10 bill. He says, ‘I sent my money off this morning. I only got some change.’ I says, ‘I don’t care about taking your change, I will give you the dollar some other time.’ He says, ‘Very well.’ I took a paper, and read, I judge, about 30 minutes. I started to the door, and Mr. Woodall stopped me and says, ‘Porter, you have been sticking your nose in my business quite a bit. I want you to quit it.’ I says, ‘I haven’t.’ He says, ‘Yes you have.’ I says, ‘I haven’t. .Shut up, or I will slap you.’ I had my hands on the counter, and I saw something glisten in his hand. I ducked my head. Instead of cutting my throat he cut me here (indicating). I was unarmed. Dr. •Campbell took four stitches on my jaw and three on my lip.”

Arch Kennedy and Ed Fox testified in substance to the same facts as did the prosecuting witness.

The testimony of the defendant in his own behalf is as follows:

“I have a small grocery store 13 miles east of Heavener. Mr. Porter came into the store. Arch Kennedy and Ed Fox were there. Mr. Porter owed me $1.35. I had asked him for it once before, and he would not pay me. He pulled a $10 bill out of his pocket, and threw it on the counter, and said, ‘Take your damn money out of that.’ I pulled out my purse, and poured the change' on the counter, and he picked up his $10 bill, and said, ‘I don’t want that damn stuff.’ He set down and read a newspaper, and I went on waiting on my customers. Mr. Porter got up, and walked to thé door, I says, ‘I want to have a little talk with you. I don’t want any trouble. I just want a friendly talk.’ He says, ‘Shoot.’ I says, ‘You put your nose in my business several times, and I want to ask you to strictly cut that out with me.’ He just ran both hands in his pocket and stuck his head over the counter and says, .‘Shut up. I will knock your damn head off.’ I thought that he was coming, and I cut him, and he jerked his pistol out.”

No demurrer was filed, and no general objection was taken that evidence should not be received because the information did not charge an offense. After verdict, a motion in arrest of judgment was filed on the ground that the information is not sufficient to charge the commission of any offense over which this court has jurisdiction.

Both at common law and by statute a verdict cures such imperfections of form in an information that do not tend to prejudice the substantial rights upon the merits.

In our opinion the information is sufficient to charge an offense as defined by section 1756, C. S. 1921, and the included offense of assault with a dangerous weapon as defined by section 1764, Id. See Clemons v. State, 8 Okla. Cr. 452, 128 P. 739; Nichols v. State, 10 Okla. Cr. 247, 135 P. 1071; Dotson v. State, 14 Okla. Cr. 50, 166 P. 902; Campbell v. State, 14 Okla. Cr. 319, 170 P. 915.

The means prescribed in section 1756, Id., and section 1764, Id., by which the offense may be committed, are in substance identical, and the material difference arises only in the punishment prescribed. In the first, the punishment must be by imprisonment in the penitentiary with 10 years, the maximum. In the second, the maximum is 5 years, and the punishment may be as for a misdemeanor. In the first, the essential element is an assault and battery by means of a deadly weapon or by such other means or force as is likely to produce death.

In section 1764 the essential element is the intent to do bodily harm with any sharp or dangerous weapon. The assault with intent to kill necessarily includes an assault with intent to do bodily harm, for a person cannot be killed without bodily harm being done, and an assault and battery by means of a deadly weapon necessarily includes an assault with any sharp or dangerous weapon. Clemons v. State, supra.

It is urged by counsel for plaintiff in error that the offense charged is assault with intent to kill, as defined by sections 1757, and not as defined by section 1756, and that the offense of assault with a dangerous weapon with intent to do bodily harm is not included in the charge, and therefore the defendant was charged with the commission of one offense, and tried and convicted of another, and that the court erred in submitting the issue of assault with a dangerous weapon with intent to do bodily harm.

What we have already said is sufficient to dispose of this contention. It appears that the court did not submit the issue of assault and battery with intent to kill, but did instruct the jury upon the offense defined by section 1764, and also submitted the issue of assault and battery.

Upon a careful review of the record, our conclusion is that the verdiet was as favorable to the defendant as the law and the testimony warranted, and, discovering no prejudicial error, the judgment of the lower court is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    Ex parte H. B. CARSON.
    No. A-5951.
    Opinion Filed Feb. 6, 1926.
    (243 Pac. 260.)
    Thos. H. Owen and Wilbur J. Holleman, for petitioner.
    Geo. F. Short, Atty. Gen., and Smith C. Matson and Chas. Hill Johns, Asst. Attys. Gen., for respondent.
   EDWARDS, J.

This is an original proceeding for ha-beas corpus, submitted on an agreed statement of facts, from which it appears that the petitioner was convicted before a justice of peace of Oklahoma county, fined $50 and costs, and committed to the sheriff of Oklahoma county, until the same should be paid. He was charged with a violation of section 7222, Comp. St. 1921, by permitting Molly Whittman, bookkeeper for the American National Bank of Oklahoma City, to work more than nine hours on November 24, 1925. Petitioner is vice president of the American National Bank, and as such in charge of the operations of the employees of said bank, including said Molly Whittman, bookkeeper. It is also agreed that said bank is organized under the banking laws of the United States, that its place of business is at Oklahoma City, and the salary of said Molly Whittman is paid by the bank, and that she had been an employee as a bookkeeper since the 15th day of May, 1925. ■■ i

The statute in question under varying terms has been enacted in many of the states of the Union, beginning in the manufacturing section. It is entirely beneficent, and its enaction was due to discrimination against female employees whereby they were required to work long hours and undergo great hardships in order to secure and keep employment. These impositions and the resultant evils brought about these women labor laws. They have been generally upheld by the courts, and are no longer challenged as contrary to the federal Constitution. We are thoroughly in sympathy with them and their enforcement.

Of the contentions advanced by petitioner why the conviction under the statute and the restraint thereunder are illegal, we conside rit necessary to examine only two, as follows: First, where a female is employed by the month the violation is tested by the week and not by the day limitation. Second, that the statute has no application to a bank.

The statute here involved was first enacted as chapter 148, Laws 1915, under a title reading as follows:

“An act regulating the hours of employment of females . in certain industries, and providing a penalty therefor.”

Section 1 of said act provided that females shall not be employed or permitted to work in the certain designated lines of work more than nine hours in any one day. Section 2 of the act provided for overtime work in times of great disaster, calamity, or epidemic. Section 3 provided for the supplying of seats for female employees. Section 4 provided penalties for violation of the act.

The act of 1915 was amended in 1919 by chapter 163, Laws 1919, under a title reading as follows:

“An act to amend sections 1, 2, 3 and 4 of chapter 148, Session Laws of the state of Oklahoma, 1915, entitled ‘An act regulating the hours of employment of females in certain industries, and providing a penalty therefor,’ repealing all laws in conflict herewith, and declaring ah emergency.”

Section 1 of the Act of 1915 was amended by changing “telephone establishment” to read “telegraph or telephone establishment or office,” and in the sixth line, after enumerating places of amusement, adding, “or any other establishment employing any female,” and in the seventh line, after limiting the employment to nine hours in any one day, by adding “nor more than 54 hours in any one week.” There were also some changes in sections 2, 3', and 4 of the act, with which we are not particularly concerned here, except in so far as they may aid in arriving at the meaning of the section under consideration. The section as amended is now section 7222, Comp. St. 1921, as follows:

Section 1: “That no females shall be employed or permitted to work in any manufacturing, mechanical or mercantile establishment, laundry, bakery, hotel or restaurant, office building or warehouse, telegraph or telephone establishment or office or printing establishment, or book bindery, or any theatre, show-house or place of amusement or any other establishment employing any female, more than nine (9) hours in any one day, nor more than fifty-four (54) hours in any one week.”

It is argued that if the statute in question is applicable to banks, where it appears, as in this case, that a female is employed by the month, that the statute is not violated unless the employee has labored more than the prohibited hours in any one week. That is, in such case it is not unlawful for any employee to work more than nine hours in any one day so long as she does not work more than 54 hours in one week, citing Ex parte Hunncutt, 7 Okla. Cr. 213, 123 P. 179; Matthews v. Rucker, 67 Okla. 218, 170 P. 492; Finerty v. First Nat. Bank of Duncan, 92 Okla. 102, 218 P. 859, 32 A. L. R. 1326, and other authorities.

The wording of the statute, “that no female shall be employed or permitted to work * * * more than nine (9) hours in any one day, nor more than fifty-four (54) hours in any one week,” we think forbids such construction, particularly when considered with section 7223, reading:

“The hours of work may be so arranged to permit the employment of females at any time so that they'shall not work more than nine (9) hours within twenty-four (24) hours of any one day. * * *”

It is our view that the Legislature intended that females in the occupations enumerated should not be employed nor permitted to work in excess of 9 hours in any one day, unless within the exceptions of public disaster or calamity mentioned in section 7223, and, further, that they should not labor more than 54 hours in any one week. The statute may be violated in either of two ways: First, by permitting the female employed to labor more than 9 hours in any one day; or, second, by permitting her to labor more than 54 hours in any one week. This construction gives full effect to each prohibition of the statute.

It is also urged that, under the rule of “ejusdem gene-ris,” section 7222 has no application to females employed in a bank. The rule of “ejusdem generis” is well established in the decisions of the courts of this country. This phrase may be freely translated as “of the same kind or species.” The rule when applied to statutory construction may be stated thus:

“Where an enumeration of specific things is followed by some more general word or phrase, such general word or phrase is held to refer to things of the same kind as previously enumerated.”

The most recent cases in this state are those of Walton v. Donnelly, 83 Okla. 233, 201 P. 367; Board of Commissioners v. Grimes, 75 Okla. 219, 182 P. 897; K. C. So. R. Co. v. Reinman, 63 Okla. 69, 162 P. 726.

The statute designates employment in certain establishments, as manufacturing, mechanical, mercantile, laundry, bakery, hotel or restaurant, office building or warehouse, telegraph or telephone, printing establishment or book bind'ery, theater, show house or place of amusement, which specific designations are then followed by the general words, “or any other establishment employing any female.” Under this rule the phrase, “any other establishment employing any female,” is restricted and explained by the particular employments named to employees in establishments of like character where the work is similar. Since banks are neither expressly named nor are of the character of business specifically named, they are not within the purview of the statute.

We cannot presume that in naming the various lines of business in which the limitation should apply, the Legislature overlooked including banks, particularly when in 1919 it amended the original by including employees in telegraph establishments and again failed to include banks. Apparently the Legislature was attempting to reach those lines of business that require physical labor, as laundries, bakeries, restaurants, or that operate continuously or. for long hours, as hotels and telegraph and telephone establishments, and it took cognizance of the well-known fact that the work done by the employees of a bank is largely mental labor, and the working hours are generally shorter than in other lines of business.

The terms of the statute in question cannot be extended to apply to banks. It follows that the conviction of the petitioner is illegal and he should be discharged.

The writ is awarded.

BESSEY, P. J., and DOYLE, J., concur.


text:
    TROY ADAMS v. STATE.
    No. A-5205.
    Opinion Filed Feb. 6, 1926.
    (243 Pac. 258.)
    W. C. Madison and S. A. Byers, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiff in error, here designated the defendant, was convicted of having unlawful possession of narcotic drugs, with his punishment fixed at a fine of $500 and confinement in the penitentiary for a term of two years.

There are three assignments of error urged in defendant’s brief on appeal:

(1) That the evidence is insufficient to support the verdict.

(2) That the trial court erred in admitting incompetent evidence over the objection of the defendant.

(3) Error of the court in his instructions to the jury concerning the penalty to be imposed.

The evidence on the part of the state is positive to the effect that the defendant was in possession of five capsules of morphine, which he sold for the sum of $5. The defendant admitted the possession of five capsules containing a white powder, but claimed that these capsules contained quinine, and that he sold them to his customer, a morphine addict, under the pretext that they contained morphine.

There was evidence of a positive nature that the capsules did contain morphine, and it was within the province of the jury to reject the explanation of the defendant. Where the evidence is conflicting, the weight of the evidence is for the jury.

The state sought to impeach the defendant on cross-examination concerning certain statements said to have been made by him to one of the witnesses for the state relating to the issues involved, as follows:

“Q. I will ask you if you did not talk with Ophelia Collins some time after this trouble? A. No, sir. Q. And if you didn’t ask her if she had made an affidavit against you, and she told you she had; and you told her you didn’t think she would give up her source of getting dope, and gave her a capsule then? A. No, sir.”

In rebuttal the following appears:

“Q. I will ask you (Ophelia Collins) if this defendant didn’t ask you if you had made an affidavit against him, saying that the stuff he had sold your sister was morphine, and you told him you hadn’t, and he said he didn’t believe you would, and gave you another capsule of morphine? A. Yes, sir.”

It is contended that the state had no right to impeach the defendant on this point, relying upon the rule announced in Cook v. State, 10 Okla. Cr. 482, 138 Pac. 823. An examination of that case shows that it is not in point here. In the Cook Case it was sought to impeach the defendant on cross-examination concerning an incident riot connected with the issues on trial. The testimony sought in the instant case, as indicated by the quotations above and other testimony not quoted, tended to impeach the testimony of the defendant on a material issue, by showing the improbability of his having sold quinine instead of morphine.

When this case was tried the penalty prescribed for the offense of illegal possession of narcotics in section 8888, Comp. Stat. 1921, had not yet been construed by this court. The penalty prescribed is in the following language :

“Any person who violates any of the requirements or provisions of this act shall, upon conviction, be deemed guilty of a felony and be fined not less than $500 nor more than $5,000 and shall be imprisoned not less than one year nor more than seven years, or both.”

In Ex parte Clarke, 30 Okla. Cr. 259, 236 Pac. 66, this court construed this language to mean that the penalty may be a fine or imprisonment, or both.

The trial court, without objections, instructed the jury that if they found the defendant guilty, the punishment should be a fine of not less than $500 nor more than $5,000, and imprisonment for not less than one nor more thari seven years. If the court had instructed the jury in accordance with the construction adopted in the Clarke Case, it may be that the jury would have omitted the fine. The fact that the period of confinement was fixed at two years in the penitentiary, and not the minimum of one year, indicates that the jury intended that the defendant should be confined for that period. To eliminate the possibility that the defendant may have been prejudiced by this instruction to the extent of the fine imposed, the judgment will be modified by eliminating the fine assessed, retaining the provisions of the judgment as to the two years in the penitentiary.

The judgment as so modified is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    JOHN BRANNON v. STATE.
    No. A-5332.
    Opinion Filed Feb. 6, 1926.
    (243 Pac. 259.)
    J. V. Long, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error was convicted in the district court of Osage county upon a charge of murder and sentenced to life imprisonment.

A brief summary of the facts as gleaned from the record discloses that on the 23rd day of September, 1923, three persons in a Ford coupe came to a filling station at the village of Cooper, in Osage county, where the deceased, Pomp Middlebrook, was in charge. Two of them entered the filling station and attempted to rob it, and Middlebrook, not putting his hands up when ordered, was shot and killed. The slayers then fled. In the first days of October, the defendant was arrested in LeFlore county as one of the parties to the murder. A preliminary information was filed, but before a hearing was had, the grand jury returned an indictment against the defendant and two others, upon which indictment the defendant alone was tried. Defendant was not positively identified as one of the parties at the scene of the murder, and except for the testimony of one witness his conviction depends upon circumstantial evidence.

The principal witness for the state just referred to was Pauline Prescott, a young woman about 21 years of age, who testified she was with the defendant on the day of the homicide up until a short time preceding the killing, when she had stopped at the home of the mother of one of the parties to the homicide. After the homicide she was with the defendant for a number of days and until his arrest. She further testified to statements made by the "defendant in which he related his connection with the homicide and the circumstances thereof. The evidence of this witness with the other evidence in the case fully establishes the guilt of the defendant. She was in no way an accomplice of defendant. Defendant did not testify, but offered evidence tending to prove an alibi.

The assignments of error argued are: (1) The insufficiency of the indictment. (2) Error in overruling motion to quash the indictment. (3) Error in a comment by the county attorney on the failure to take the stand. (4) The insufficiency of the evidence.

Under the first assignment, the defendant contends that the indictment charged the offense to have been committed on September 23, 1924, and the trial took place on May 16, 1924. This contention, however, is not sustained by the record. The indictment upon which the defendant was tried, as it appears in the record, alleges the date of the homicide as September 23, 1923. The assignment appears to have been predicated on a stenographic mistake in the copy furnished the defendant.

Upon the second assignment it is contended that the indictment was not signed by the county attorney. This contention also is not sustained by the record. At pages 4 and 5 of the case-made appears the indictment upon which the defendant was tried, duly signed by the county attorney. This contention also appears to be based on a copy of the indictment which was attached to the motion to quash, which copy does not bear the name of the county attorney. We assume that the contention is urged on account of the fact that the counsel here representing defendant are not the same as counsel appearing in the trial court.

Assignment No. 3 is directed to a proceeding in the trial as follows: When the evidence for both the state and the defendant had been concluded, the court informed the jury that it would take some time to prepare his instructions, and gave them the usual admonition. Whereupon one juror said:

“Judge, your honor, could we have the defendant’s signature?
“The Court: No, gentlemen, you cannot be permitted to have it without they volunteer.”

Upon the reconvening of court the following occurred:

“Mr. J. Van Long (Counsel for Defendant): Your honor, a juror asked for the defendant’s signature, and we are willing to submit that to the jury if they want it.
“The Court: Gentlemen, that is just your privilege.
“Mr. Long: We are willing to do that.
“Mr. Roff (County Attorney): Is the defendant going to take the stand?
“Mr. Long: No.
“Mr. Roff: Then we object to any testimony not from the witness stand. If the defendant will take the stand, he can give his signature or anything else.
“Mr. Long: We offer the signature if there is any way to get it in.
“Mr. Roff: We object to the offer of any testimonuy not from the witness stand.
“The Court: Objection sustained.
“Mr. Long: The defendant excepts.”

By section 2698, Comp. St. 1921, it is provided that a defendant may at his own request be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial, and if commented upon by counsel it shall be ground for a new trial. This statute has been many times considered by this court, and it is well settled that it is mandatory and must not be violated directly or indirectly, either in letter or spirit. Nowlin v. State, 7 Okla. Cr. 27, 115 P. 625, 121 P. 791; Holmes v. State, 13 Okla. Cr. 113, 162 P. 446; Johnson v. State, 33 Okla. Cr. 56, 242 P. 277.

We think that the county attorney by his statement in the presence of the jury violated the statute in question, though the error was in a sense invited by the offer of evidence of the signature of defendant. This was an offer of testimony by the defendant without having him sworn and affording an opportunity for cross-examination. No exception, however, was taken to the remarks of the county attorney, and the matter was not specifically assigned in the motion for a new trial.

If the defendant desired to avail himself of the error of the remark of the county attorney, he should have taken an exception at the time and should have assigned it as error in the motion for a new trial in order that the trial court might correct it. Ford v. State, 5 Okla. Cr. 241, 114 P. 274; Stack v. State, 4 Okla. Cr. 1, 109 P. 126; Steward v. State, 9 Okla. Cr. 327, 131 P. 725.

The error here complained of is not fundamental, and no exception having been taken, it will be deemed to have been waived.

The final assignment of the insufficiency of the evidence, as hereinbefore stated, is not tenable. Upon a careful examination of the record, we find no injustice done to the defendant and nothing that would warrant us in disturbing the verdict.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    STATE ex rel. MITCHELL, Co. Atty., v. SWINDALL et al.
    No. A-5663.
    Opinion Filed Dec. 1, 1925.
    Rehearing Denied Feb. 6, 1926.
    (241 Pac. 456.)

      Geo. F. Short, Atty. Gen., J. Berry King, Asst. Atty. Gen., Dan Mitchell, Co. Atty., A. L. Zinser, Asst. Co. Atty., and Dyer & Keim, for the State.
    McKeever, Moore & Elam, for defendants.
   BESSEY, P. J.

The state of Oklahoma, on the relation of Dan Mitchell, county attorney of Garfield county, asks this court to issue a writ of prohibition, restraining Charles Swindall and James B. Cullison, judges of the district court within and for Garfield county, from granting a motion of Oscar Leierer, asking leave of said district court to withdraw his plea of guilty to a charge of wife abandonment theretofore entered in said court.

Oscar Leierer was arrested upon a complaint charging him with wife abandonment. The complaint was drawn under the provisions of chapter 78 of the Session Laws of 1923', the second section of which provides:

“That section 1856 of the Compiled Laws of Oklahoma, 1921, be amended to read as follows: ‘Every person who shall without good cause abandon his wife in destitute or necessitous circumstances and neglect and refuse to maintain or provide for her, or who shall abandon his or her minor child or children under the age of fifteen years and willfully neglect or refuse to maintain or provide for such child or children, shall be deemed guilty of a felony^ and upon conviction thereof, shall be punished by imprisonment in the state penitentiary for any period of time not less than one year or more than ten years.’ ”

The section following provides that the warden of the penitentiary shall put the prisoner to work at a wage of $2.50 per day and provides that such wages shall be paid to the wife or other dependent. It is further provided in the same act:

“Upon conviction of any person, under the provisions of this act, the Governor may, before or after sentence, parole said person upon the recommendation of the trial judge in whose court he was convicted, upon said person entering into an undertaking in the form provided by the judge of said court, with two or more good and sufficient sureties. Said sureties shall qualify and make a property statement as provided by law, and the said bond shall be approved by the trial judge before said application is made to the Governor, and a certificate that said bond has been approved by the trial judge shall accompany any application made hereunder. Said bond shall be conditioned that the said convicted person shall within ten days from the first day of each month, pay to the clerk of the court where he was convicted such amount as has been fixed by the court for the support of said wife or child or children, which money shall be paid by the clerk of the court as provided herein for wages at the penitentiary.”

H. G. McKeever, attorney for Oscar Leierer, the county attorney, V. P. Crowe, and the trial judge, Charles Swin-dall, agreed that, if Oscar Leierer would enter his plea of guilty, a judgment' should be rendered against him, fixing his punishment at confinement in the penitentiary for a term of two years, and that the trial judge would recommend to the Governor of the state of Oklahoma that the defendant be paroled upon condition that he pay to the abandoned wife, for a period of 10 years, the sum of $15 a month, and a further sum of $750 for hospital expenses expended by the wife. It was assumed by all parties concerned that upon the recommendation of the trial judge the Governor would issue the parole, as provided by the act above quoted. Though not appearing of record, proof has been offered indicating that it was further agreed that, in the event the Governor failed or refused to grant such parole, Oscar Leierer should be permitted to withdraw his plea of guilty and the charge against him be tried to a jury. Whereupon the defendant Oscar Leierer entered his plea of guilty and the following judgment was rendered and entered against him:

“Now, on this 1st day of December, A. D. 1924, the same being one of the regular judicial days of a term of this court, the above-entitled matter comes regularly on for hearing on the arraignment of the defendant herein. The state of Oklahoma appears by V. P. Crowe, county attorney of Garfield county, state of Oklahoma, and the defendant appears in his own proper person and by his attorneys, McKeever, Moore & Elam, and thereupon the defendant waives the reading of the information herein and enters his plea of guilty to wife desertion, as charged in the information on file in the above entitled' cause. It is therefore by the court considered, ordered, adjudged, and decreed that the defendant serve a term of two years in the state penitentiary at McAlester, Oklahoma; the said sentence to commence upon the delivery of the said defendant into the custody of the warden of the state penitentiary. And the court, as a part of this sentence, recommends to the Governor of the state of Oklahoma that the defendant be paroled upon entering into an undertaking in form provided by the judge of this court, in the penal sum of $3,000, good and lawful money of the United States of America, with two or more sufficient sureties, conditioned that the said defendant shall within ten days from the 1st day of each month, commencing on the 1st day of December, 1924, pay to the clerk of the district court of Garfield county, state of Oklahoma, the sum of $15 for the support of the wife of said defendant, for the period of 10 years from and including the day of said first payment, and paying to the clerk of said court the further sum of $750, representing hospital expenditure of the wife of the defendant, same to be paid within 30 days from this date, and payment of the costs of this action, taxed at $124.34, within 30 days from this date.”

After the rendition of the above judgment the parents of the injured wife resisted the proposed parole, and the Governor of the state failed or refused to carry out the recommendation of the trial judge for a parole.

On January 1st, following the rendition of judgment, the term of court at which such judgment was rendered expired by operation of law.

On January 26th the defendant, by his attorneys, applied to the district court of Garfield county, James B. Cullison, judge presiding, for permission to be heard upon an application to withdraw his plea of guilty, and asked that a day be fixed for such hearing, and that he be released upon bond. The court made and entered an order granting the application. Later, on the 27th day of February, 1925, a motion was filed by the defendant, asking leave to withdraw his plea of guilty and enter a plea of not guilty. On June 5, 1925, this motion came on to be heard, over the motion and protest of the state, based upon the ground that the court was without jurisdiction to grant the motion of the defendant, or to make any order based thereon. The county attorney and others interested apprised the court that they desired to make application to the Criminal Court of Appeals for a writ of prohibition to restrain each of the district judges of the district court within and for Garfield county from making any further orders in the case. In order that such application might be filed, further proceedings in the district court were held in abeyance.

Whereupon this application for a writ of prohibition was filed here, reciting the facts and urging the claim that the district court of Garfield county is without power or authority to make any orders in the premises, except to order the defendant into the custody of the sheriff to carry out the sentence originally pronounced agáinst him. The defendant claims that he entered his plea of guilty under a misapprehension of the facts, and that for that reason his plea and the judgment thereon should be set aside; that the application of February 27,1925, in the trial court, for leave to withdraw his plea, was in the nature of an application for a writ of error coram nobis and should have been sustained, and that the application here for a writ of prohibition should be denied.

The representatives for the state in effect admit that it was the intention of all parties, at the time the defendant entered his plea, that he should be paroled, but deny that there was any mistake as to any existing fact, or any fraud or duress. On the contrary, so the state contends, the defendant and the trial judge, with full knowledge of all the facts, assumed the risk that the Governor would not grant executive clemency, as anticipated; that for a period of 30 days after sentence, in the same term of court, the defendant could have withdrawn his plea; that, for whatever reason the defendant or his counsel were lulled into repose until after the term and took no action to withdraw the plea, at the end of the term the judgment of conviction became fixed and final, and that thereafter the trial court had no authority to issue a writ of error coram nobis, based upon the refusal of the Governor to grant executive clemency as anticipated.

Under the old wife abandonment statute (section 1856, Comp. Stat. 1921), the court was empowered to make modifying orders and grant paroles after the term. Under the present statute (chapter 78, Session Laws 1923), such power is lodged exclusively with the Governor.

This court has never directly decided whether the ancient common-law writ of coram nobis, or writ of error coram nobis, will apply in this state. Section 2345, Comp. Stat. 1921, provides:

“The procedure, practice and pleadings in the courts of record of this state, in criminal actions or in matters of criminal nature, not specifically provided for in this code, shall be in accordance with the procedure, practice and pleadings of the common law.”

From the provisions of this statute we see no reason why in a proper case resort to this writ may not be had.

The writ of error coram nobis is a common-law remedy, afforded on application to the trial court for the correction of errors of fact unknown at the time of the trial to the party seeking relief and to the court. Alexander v. State, 20 Wyo. 241, 123 P. 68, Ann. Cas. 1915A, 1282; Ernst v. State, 179 Wis. 646, 192 N. W. 65, 30 A. L. R. 681; People v. Perez, 9 Cal. App. 265, 98 P. 870.

The writ will not be allowed when, after the defendant and his counsel had knowledge of the error, a statutory remedy existed which could have then been invoked. State v. Richardson, 291 Mo. 566, 237 S. W. 765; State ex rel. Orr v. Latshaw, 291 Mo. 592, 237 S. W. 770; Alexander v. State, supra; 34 C. J. 393.

The Writ cannot be invoked upon the existence of a fact actually brought to the knowledge of the court or the accused before rendition of judgment. 2 R. C. L. 309, and cases cited; 34 Corpus Juris, 399. It will not be invoked to relieve from consequences arising after judgment. Collins v. State, 66 Kan. 201, 71 P. 251, 60 L. R. A. 572, 97 Am. St. Rep. 361. In this case the defendant and his attorney and the trial judge in effect laid an extremely hazardous wager upon what the Governor of this state would do. Having made such wager and lost, the defendant should now be required to abide the consequences.

The writ of prohibition is granted. The district court of Garfield county, and Hon. Charles .Swindall and Hon. James B. Cullison, judges thereof, are directed to make no further orders in the original cause herein, except to order the defendant, Oscar Leierer, into the custody of the sheriff, with directions to execute the sentence originally rendered.

DOYLE and EDWARDS, JJ., concur.


text:
    JOHN H. BROWN v. STATE.
    No. A-5276.
    Opinion Filed Feb. 6, 1926.
    (242 Pac. 1065.)

      M. D. Hjartsell, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information, filed in the district court of Muskogee county, January 15, 1924, charges that John H. Brown in said county, “on the 6th day of December, 1923, did knowingly, willfully, unlawfully, wrongfully, and feloniously, and without good cause abandon his wife, Mary Brown and six minor children, under the age of 15 years, to wit: Wanda Brown, Arnold Brown, Glen Brown, Owen Brown, Jeanetta Brown, and John Brown, and has willfully refused and neglected to maintain and provide for his said wife, Mary Brown, and their said children, contrary to,” etc.

A trial was had thereunder; the defendant was found guilty as charged in the information, the jury leaving the punishment to the court. Motion for new trial was duly filed and overruled. The court sentenced the defendant to be confined in the state penitentiary for a term of 5 years.

In support of the contention of counsel that the judgment should be reversed, a number of errors are assigned and argued. The first is that the court erred in submitting the case to the jury without first having the defendant arraigned and requiring him to plead to the information.

The record shows that on March 25, 1924, the case was set for trial April 4, 1924; that on said date the defendant appeared in person and by his attorney, M. D. Hartsell, and, the state and the defendant each having announced ready for trial, thereupon jury was duly impaneled and sworn for. the trial of the case. The prosecuting attorney made the opening statement of the case. Mary Brown, the first witness for the state, was called and sworn, thereupon the defendant objected to the introduction of any testimony on the part of the state for the reasons following: That the information does not state facts sufficient to constitute a public offense; “that the defendant herein has never been arraigned, has never entered a plea herein, has never waived formal arraignment herein, and has never waived his right to plead in this action.” This objection the court overruled; exception reserved.

Under our Code of Criminal Procedure:

“The only pleading on the part of the defendant is either a demurrer or a plea.” Section 2606, C. S. 1921.
“There are three kinds of pleas to an indictment or information. A plea of:
“First. Guilty.
“Second. Not guilty.
“Third. A former judgment of conviction or acquittal of the offense charged, which must be specially pleaded, either with or without the plea of not guilty.” Section 2617, Id.
Every plea must be oral, and must be entered upon the minutes of the court. “The plea of not guilty puts in issue every material allegation in the indictment or information.” Section 2622, Id.
“The jury having been impaneled and sworn, the trial must proceed in the following order:
“First. If the indictment or information is for a felony, the clerk or county attorney must read it, and state the plea of the defendant to the jury. In other cases this formality may be dispensed with.” Section ;2687, Id.

In the absence from the record of the opening statement of the case as made by the county attorney, it will be presumed that he read the information and stated the plea of the defendant to the jury as provided by statute. The record shows that the defendant was represented by competent counsel, that he voluntarily announced himself ready for trial, and that the case was treated as at issue upon a plea of not guilty, and the defendant was accorded every right that he could have availed himself of under the most formal entry of his plea. If the defendant had not been arraigned and did not enter his plea, knowing this formal defect in the record, he took the chance of an acquittal, which would have barred further prosecution. The conviction will have the same effect.

In Martin v. Territory, 14 Okla. 598, 78 P. 88, cited by counsel for the defendant in support of his contention, it is said:

“A defendant, under the statute, has a right to plead to the indictment or accusation. He should be permitted to choose what defense he will make, but the right to do this is conferred upon the defendant for his benefit, and in exercising this privilege he is required to act in good faith. ¡Hje cannot sit quietly by and say nothing about his failure to plead until after the verdict, and then complain. The necessity of a formal plea to an indictment is not a constitutional requirement, and, while it was a part of the procedure at common law, in this territory, it is statutory, and it is now well settled that a statutory right may be waived even in capital cases. If the defendant had not been permitted to plead, it was his duty to claim the right to plead before going to trial, which he did not do. The jury had been informed in his presence that he had pleaded not guilty, and, after the territory had introduced its evidence and rested, he introduced his evidence and made his defense the same as though his plea had actually been entered. In the trial he was afforded every opportunity to make his defense, and he saved his exceptions to the rulings of the court on other questions, and claimed all of his legal rights. He had as full and as fair a trial as he could have had if the plea of not guilty had actually been entered. The issue of his guilt or innocence was tried, and he willingly participated in that trial, and is bound by its results. If the defendant had been ácquitted, would a court say that the trial was void? Surely not. Neither will the defendant be heard to complain when he has taken advantage of every substantial right. This objection, like the first, is purely technical, and by his own conduct his mouth is sealed.”

It is the well-settled doctrine in this state that, where a constitutional right in a criminal cause is largely for the benefit of the accused, or in the nature of a personal privilege, the accused may waive such right. Blair v. State, 4 Okla. Cr. 359, 111 P. 1003; Starr v. State, 5 Okla. Cr. 440, 115 P. 356. The rule is well settled that a defendant by silence may waive the benefit of a statutory provision, and announcing ready for trial and going to trial without objection waives arraignment and plea.

The second assignment is that the court erred in overruling the objection of the defendant to the introduction of testimony on the part of the state, for the reason that the information is duplicitous, in that it attempts to charge more than one offense. It is urged that the statute creates the crime of wife abandonment, also creates the crime of child abandonment, and that the abandonment of either would be a separate and distinct crime under the state; that, if the information here charges a crime at all, it charges two.

The function of a demurrer which was not resorted to by the defendant is to defeat the information without a trial, whenever it appears upon the face thereof that it is subject to one or more of the five objections named in the statute. Code of Crim. Proc. section 2608, C. S. 1921. These objections can be taken only by demurrer, except:

“That the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.” Id. § 2616.

It follows that the question is not presented by the record. However, we are of the opinion that there is no merit in this contention. The rule is well settled that, when a statute makes it an offense to do some one or another act, naming them disjunctively, either of which would constitute one and the same offense, and amenable to the same punishment, all the acts may be charged conjunctively in the one count as constituting a single offense.

The next assignment is that the court erred in overruling the defendant’s objection to the introduction of testimony, because the facts stated do not constitute a public offense, and it is urged that the failure to allege that the said abandonment had taken place at a time that the said wife and children were in a necessitous and destitute condition is a fatal defect.

By numerous decisions of this court it is held that, when a defendant enters his plea of not guilty and waits until after the jury has been impaneled and sworn, and then for the first time questions the sufficiency of the evidence by objection to the introduction of testimony on the ground of such insufficiency, the objection should be overruled, if in any reasonable construction or intendment the information can be sustained. White v. State, 4 Okla. Cr. 143, 111 P. 1010; Edwards v. State, 5 Okla. Cr. 20, 113 P. 214; Wilsford v. State, 8 Okla. Cr. 535, 129 P. 80; McGill v. State, 16 Okla. Cr. 657, 185 P. 530; State v. Underwood, 17 Okla. Cr. 443, 190 P. 281.

Our Code of Criminal Procedure provides:

“No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” Section 2564, C. S. 1921.

It also appears from the record that the defendant failed to challenge the sufficiency of the information after verdict by a motion in arrest of judgment. In our opinion the information sufficiently charges the offense of abandonment of wife and children as defined by section 2, c. 78, Session Laws 1923. For the reasons stated, the defendant’s objections as interposed at. the commencement of the trial were properly overruled.

Exceptions were taken to rulings of the court in the admission of testimony in rebuttal, tending to show that the defendant, after the alleged abandonment, lived with and supported another woman at several places in Muskogee county. We think, in view of the fact that the defendant attempted to justify his conduct in testifying that it took nearly all the money he could earn to pay his board, this testimony was competent and properly admitted.

We have carefully reviewed the remaining assignments of error, and we are convinced that none of them are well taken. We see no reason to doubt that this conviction was justified by the evidence, and in our opinion the law has been vindicated in the judgment.

It. is accordingly affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


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    DR. R. S. TANNER v. STATE.
    No. A-5286.
    Opinion Filed Feb. 6, 1926.
    (242 Pac. 1054.)
    W. H. Mouser and F. R. Blosser, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

Plaintiff in error, Dr. R. S. Tanner, was tried and convicted on an information charging that on or about the 8th day of July, 1921, he did unlawfully, fraudulently, and feloniously obtain property, to wit: Drugs and money of the total value of $7.30 from the City Drug Store, Strong City, by means and use of a certain false and bogus check. The jury failed to agree on the punishment. Motion for new trial was duly filed and overruled, and on March 11, 1924, he was, by the court, sentenced to imprisonment in the state penitentiary for a term of one year. . To reverse the judgment, he appealed by filing in this court, September 9, 1924, petition in error with ease-made.

The defendant is not represented by counsel in this court, and no brief in support of the assignments of error has been filed.

We deem it sufficient to say that the information is sufficient and the demurrer thereto was properly overruled. An examination of the record discloses to us no prejudicial error, and the evidence of the defendant’s guilt was ample to justify the verdict.

The judgment of the district court of Roger Mills county is accordingly affirmed.

BESSEY, P. J., concurs.

EDWARDS, J., disqualified.


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    LOUIS WILKIE v. STATE.
    No. A-5358.
    Opinion Filed Feb. 6, 1926.
    (242 Pac. 1057.)

      Forrest Hughes, A. S. Wells, Leahy, Macdonald & Files, and J. R. Charlton, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

For brevity and convenience, the plaintiff in error will be referred to as defendant.

The record discloses a state of facts about as follows: On the 4th of April, 1924, the defendant and Earl Bolt, the deceased, attended a country dance not far from Bartlesville. Some time during the course of the dance a quarrel took place between them, but of no particular consequences. It appears that the defendant was jealous of some attention paid by the deceased to May Reeve, with whom the defendant was keeping company. Some time after midnight the defendant and May Reeve had been out of the house, and when they returned, according to the evidence of the state, the defendant said to May Reeve, referring to the deceased, “There is that blonde son of a bitch; go take him.” According to the evidence of the defendant he said, “There he is if you want him; go take him.” The evidence of the state then is that the deceased said to the defendant, “Louie, I am a man capable of taking care of myself,” or words to that effect. No more words were passed then. Later the defendant was again out with May Reeve, and when he returned, according to the evidence of the state, defendant renewed the quarrel and cursed deceased, and drew his gun, and one of the witnesses intervened and asked him not to do that; that deceased started to walk away from defendant, and had taken perhaps three steps when defendant said, “Give me room,” and shot deceased with a pistol, and then said to deceased, “Well, how do you like that?” and the deceased said: “Louie, you have shot me;” and fell on the floor. The defendant said, “I told him I would kill him over her.” According to the evidence offered by defendant, just before the shooting deceased walked up to defendant, and they started quarreling, and defendant stepped back, and the deceased advanced on him with his left hand up, and with his right hand reaching back toward his hip pocket, and that deceased said, “I will just get you now.” The deceased was in his shirt sleeves, and was not armed. He was put in a car to be taken to Bartlesville, but died before reaching there.

Almost all, if not all, the parties at the dance were drinking, and the evidence is conflicting. That of the state would indicate that the defendant killed deceased without justification, while that of the defendant tends to raise the issue of self-defense. The court submitted to the jury the issue of mürder, manslaughter in the first degree, and self-defense. Only two assignments of error are argued: First, that the court erred in its instructions to the jury; second, that the verdict is contrary to the law and the evidence.

Under the first assignment, the defendant complains of the court’s instructions No. 8 and No. 11, as follows:

“No 8. You are instructed that the right of self-defense is given to the citizen for his protection, and it cannot be pleaded as a defense and relied upon for an acquittal by one who himself is the aggressor, or by one who enters voluntarily into a difficulty, • armed with a deadly weapon, no matter how great his danger or how imminent his peril may become during the course of the difficulty.”
“No. 11. You are instructed that the word ‘aggressor,’ as used in these instructions, refers to and means the person who provoked the difficulty. To ‘provoke the difficulty,’ as used in these instructions, means, to willingly and knowingly use some language or do some act, after meeting the antagonist, reasonably calculated to lead to an affray or deadly conflict.”

It is contended that these instructions are not sufficient to give defendant his right of self-defense, and, in support of that contention, the following are cited: Gibbons v. Territory, 5 Okla. Cr. 212, 115 P. 129; Turnbull v. State, 8 Okla. Cr. 459, 128 P. 743; Swan v. State, 13 Okla. Cr. 546, 165 P. 627; Boyer v. State, 16 Okla. Cr. 388, 183 P. 620.

In connection with instructions Nos. 8 and 11, complained of, the court charged fully and clearly upon the law of murder, manslaughter in the first degree, the burden of proof, and presumption of innocence, and gave other instructions upon the law of self-defense, and informed the jury that the instructions must be considered as a whole. No complaint is made, except to the instructions numbered 8 and 11, here set out. No requests for any further or additional instructions or amplifications were made, save one upon the appearance of danger, which the court fully covered.

It is urged that, considering instructions No. 8 and No. 11 together, they, in the alternative, tell the jury that, if the defendant is the aggressor, he cannot plead self-defense, and, if he knowingly uses some language reasonably calculated to lead to an affray or deadly conflict, he is the aggressor; but do not tell the jury that the words or act which might lead to an affray or deadly conflict must be spoken or done with the intention of provoking a difficulty and for the purpose or pretext of doing some great personal injury to or slaying the deceased.

The question for our determination here is, Do instructions Nos. 8 and 11, considered along with the other instructions given and in the light of the record before us, deprive the defendant of his right of self-defense, or fail to correctly advise the jury of such right? The case of Gibbons v. Territory, supra, is the foundation case for the Turnbull Case, the Boyer Case, and the Swan Case. It holds that the right of self-defense cannot be taken from a defendant merely because, at the time of the fatal difficulty, the defendant entertains an intent to kill the deceased without any overt act on his part to carry out such intent. The court upon that point said:

“* * * The jury was left to determine for themselves what amounted to bringing on the difficulty, and were in effect authorized to disregard the right of self-defense if they thought the defendant provoked the difficulty by engaging in a dispute, or any act, lawful or otherwise, that contributed to bringing it on. The instruction is in the alternative, and deprives the appellant of the right of self-defense if he sought or brought on the difficulty. Seeking a difficulty is a broad, general term, and in its popular sense he might be said to have sought the difficulty if he went there expecting attack to be made on him; but of course this was not the bringing on of the difficulty in a legal sense. One is not justified in killing another because the other harbors a murderous intent, and the right to defend one’s self is not forfeited because there is in the mind intent and design. Intent unrevealed is like thought unexpressed, and the existence of an intent should never warrant the taking of human like or prevent the protection of it. The giving of this instruction was error.”

The instruction under consideration in the Gibbons. Case was a concrete instruction, applying the law to the facts in that case. Here instruction No. 8 is an abstract statement of the law. Analyzed, it simply advises the jury that the right of self-defense is for protection and not for aggression, and that an aggressor or a voluntary combatant, armed with a deadly weapon, cannot invoke the right of self-defense. That is undoubtedly a correct abstract statement of law. It was approved in case of McDaniel v. State, 8 Okla. Cr. 209, 127 P. 358.

Instruction No. 11 undertakes to advise the jury what is meant by an aggressor within the meaning of instruction No. 8. An agressor is defined as one who provokes the difficulty. “To provoke the difficulty” has been defined as willingly and knowingly using some language or doing some act after meeting the antagonist reasonably calculated to lead to the deadly conflict. Hawkins v. U. S., 3 Okla. Cr. 651, 108 P. 561.

Under the instruction given, one who provokes a difficulty is the aggressor in that difficulty. Without his words or acts, there would be no difficulty. If he “willingly” or “knowingly” (the terms used in the instruction No. 11), after meeting his antagonist, begins and brings about the difficulty, it is not particularly important whether he begins the trouble by words or acts, if they are such as are “reasonably calculated” to lead to an affray or deadly conflict. An individual is not permitted to provoke willingly or knowingly a difficulty, and then, when the difficulty has resulted in his slaying an unarmed antagonist, justify such slaying on the ground of self-defense. This is merely a taking advantage of his own wrongdoing, which the law does not permit. Moutry v. State, 9 Okla. Cr. 623, 132 P. 915; State v. Hawkins, 18 Or. 476, 23 P. 475.

The law dealing with the imperfect right of self-defense was not suggested at the trial, and not attempted to be given by the court. It was the theory of the defendant, not that he provoked the difficulty and then in good faith withdrew, but that deceased provoked the difficulty and was slain by the defendant upon appearance of danger in his necessary self-defense. The holding in the Gibbons Case cannot be extended to apply to the facts disclosed by the record in this case, and the law of self-defense set out in the instructions. It requires too great a refinement of interpretation to say that the instructions as a whole deprived the defendant of his right of self-defense. Whatever error there may be in the instructions, we think, is harmless. — Little v. State, 25 Okla. Cr. 190, 219 P. 424.

Under the contention that the evidence is insufficient, it is argued that the defendant can be guilty of no higher offense than manslaughter in the first degree. The law applicable to first degree manslaughter was fairly submitted, but the jury by its verdict found against the defendant, and the evidence fully sustains their verdict.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


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    W. J. TAYRIEN v. STATE.
    No. A-5288.
    Opinion Filed Feb. 8, 1926.
    (242 Pac. 1061.)

      T. J. Leahy, Campbell & Ray, and J. R. Charlton, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that in Washington county, June 18, 1923, W. J. Tay-rien "did then and there willfully, unlawfully and feloniously commit an assault upon the person of one Frances Collins and with his hands, seize, hold, strike and ill treat her,” with intent "to carnally know, rape, ravish and have sexual intercourse with her,” a female under the age of 16 years, to wit, 15 years, and not the wife of the said defendant. The jury returned a verdict finding him guilty as charged in the information and fixing his punishment at imprisonment in the penitentiary for a term of three years. He has appealed from the judgment rendered on the verdict.

A number of errors are assigned and argued. We have examined and considered them, but find it unnecessary. to discuss the points raised, further than to say the information is sufficient and the demurrer thereto was properly overruled, and we find no error in the rulings of the court in the admission and rejection of evidence.

The assignments that the verdict is not sustained by sufficient evidence, and that the court erred in giving and refusing instructions, will be considered together.

The following brief statement of the case will be sufficient to make clear the legal propositions presented:

The prosecutrix, Frances Collins, was past 15 years of age. She and a number of other girls attended what they called a “kid party,” dressed as small children, wearing half hose and short dresses. The defendant, Tayrien, was the owner of an automobile, and with two other boys, Herbert Gibbs and Jack Brandon, about 11 o’clock that night went to where the party was being held, apparently for the purpose of looking on. It appears they knew the most of the girls. It was arranged that the prosecutrix was to have as her escort Herbert Gibbs, and that Mildred Luten was to have as her escort Jack Brandon. Tayrien did not succeed in getting a girl. That they all got into Tayrien’s car, and he drove around town and then out on the Tulsa highway a short distance, then turned into the road over Toalsons Hill, and after going over the hill stopped the car. Frances Collins and 'Herbert Gibbs occupied the back seat and Brandon and the girl Luten and Tayrien occupied the front seat. After the car stopped, according to the testimony of the prosecutrix, Herbert Gibbs undertook to put his hand under her dress and she prevented him, then Tayrien turned around and attempted to put his hand under her dress, and she told him to quit. About that time Herbert Gibbs, according to her testimony, became sick. Then Tayrien got out of the front seat and into the back seat with her and Gibbs. That he tried to put his arms around her and she moved over against Gibbs. That Gibbs got out of the car, and Tayrien again tried to put his hand under her dress, and she kept trying to keep him from doing so. That he attempted to kiss her and then pushed her down between the front and back seats. That he was on top of her. That his trousers were unbuttoned at that time, but they were not down. That he again attempted to kiss her. That during this time Herbert Gibbs was standing by the side of the car. That she did not know just where Jack Brandon and the Luten girl were. That she had no conversation with Tayrien except to ask him to get off, and he gave her to understand that he would not. That they had been struggling between the seats for about 15 minutes when the Luten girl and Brandon returned to the side of the car, and Brandon opened the car door. That she kept struggling and got about half-way out of the' car and hurt her back. That she told Tayrien that her back was about broke, and Brandon put his knee under her back and held her up, and Tayrien was still on top of her. That they remained in that position for another 15 minutes, when she told Tayrien that she could not fight any longer, and he said, “Well, I will let you alone if you won’t call me a quitter.” That she told him she would not call him a quitter, and he got up. Then Brandon helped her out of the car, and they walked her around a little. Then she got in the front seat with Brandon and Tayrien, with the Luten girl and Gibbs in the back seat, and riding that way they went home. That when Tayrien attempted to kiss her, she told him that she would rather kiss a dog than to kiss him. She also testified that when Brandon came back, and while standing there, when she and Tayrien were struggling Brandon said something to Gibbs about betting on the result of the struggle between her and Tayrien.

Mildred Luten testified that she saw Tayrien and Frances Collins wrestling in the bottom of the car, and they were struggling there about 20 minutes, and Tay-rien told Brandon to hold up Frances’ head, and he did, and Frances asked her to wipe the perspiration off her leg and she did; that Brandon said to Frances, “I will bet on you kid, or something like that,” and Frances said: “Don’t, Bill, you are breaking my back. I cannot struggle any longer; please, Bill, quit.” And Bill said, “I will if you won’t call me a quitter,” and she said, “I won’t call you a quitter,” and the struggle ended.

There is no testimony on the part of any witness that defendant by any words spoken during the struggle intended to accomplish an act of sexual intercourse, or that he made any statement to her as to what his intentions were.

As a witness in his own behalf, the defendant testified that after he stopped the car he got out and looked at the gasoline gauge; that Gibbs complained of being sick and got out of the car, leaving him sitting with Miss Collins; that he put his arms around her and tried to kiss her, and she resisted, finally said she would rather kiss a dog, and he told her if she thought that way about it he would not try to' kiss her any more; she said something about him being a quitter, and once in a while he tried again to kiss her; that at no time was he on top of her, and he did not at any time attempt to' put his hands under her clothes; that his trousers were not unbuttoned.

The witnesses Herbert Gibbs and Jack Brandon testified in substance to the same facts as did the defendant.

The defendant asked for an instruction submitting the issue of the included offense of assault and assault and battery, which was refused and exception allowed, and no instruction on that branch of the case was given by the court. Our Code of Criminal Procedure provides that the jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or an attempt to commit the offense. Section 2740, C. S. 1921. The rule is well settled that where there is evidence tending to prove the commission of an offense which is necessarily included in the offense charged, it is error for the trial court to refuse to instruct the jury of their right to convict of the lesser offense. Clark v. State, 6 Okla. Cr. 100, 116 P. 200.

In Alexander v. State, 58 Tex. Cr. R. 621, 127 S. W. 189, the Texas Court of Criminal Appeals said:

“If the appellant took hold of the girl or put his hands upon her in a violent manner, yet if he did not have the specific intent at the time that he took hold of her to have intercourse with her either with or without her consent, then he would only be guilty of indecent familiarity, which, under the law, would be aggravated assault.
“Believing that the court was in error in not submitting the issue of aggravated assault to the jury, the judgment will be reversed.”

In State v. Powers, 181 Iowa, 452, 164 N. W. 856, the Supreme Court of Iowa held:

“In a prosecution for assault to rape, evidence being sufficient to sustain verdict for assault and battery, that issue should have been submitted.”
“In State v. Hoag, 232 Mo. 308, 134 S. W. 509, the Supreme Court of Missouri said:
“The complaint of the defendant that the trial court erred in failing to give the jury an instruction on the law of common assault seems to us to be well taken. The crime of common assault is necessarily embraced in the charge of felonious assault. * * *
“If the jury believed the evidence of prosecutrix, and yet, from the surrounding circumstances, did not believe defendant intended to have sexual intercourse with her at the particular time when she testified that he placed his hand under her clothes, then clearly they would have been justified in finding him guilty of common assault. When, as in the case at bar, the evidence shows that a defendant may not be guilty of the offense charged, but may be guilty of an offense necessarily embraced in the charge, it becomes the duty of the trial court to instruct the jury upon such minor offense whether it be requested to do so or not. * * * For the error of the trial court in failing to instruct the jury on the law of common assault, as applicable to the evidence in this case, its judgment is reversed, and the cause remanded for a new trial.”

And see State v. Langston, 106 Kan. 672, 189 P. 153; People v. Gerner, 211 Mich. 44, 178 N. W. 75; State v. Smith, 150 Ark. 193, 233 S. W. 1081; State v. Williams, 185 N. C. 685, 116 S. E. 738.

Upon consideration of the evidence in the case and in view of the rule declared in the foregoing eases, we are convinced that the court erred in refusing to give the requested instruction, and as the case must be again submitted to a jury, we refrain from a discussion of the evidence, further than to say that upon the hypothesis that the testimony for the defense is true, the defendant is entitled to have the jury instructed upon the included offenses.

For the error indicated, the judgment of conviction is reversed and the case remanded, with direction to grant a new trial.

BESSEY, P. J., and EDWARDS, J., concur.