text:
    CHESTER NIX v. STATE.
    No. A-8985.
    May 22, 1936.
    Rehearing Denied Sept. 18, 1936.
    (61 Pac. [2d] 1137.)
    Bishop & Bishop, and W. W. Pryor, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Mat-son, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of robbery with firearms and his punishment fixed at imprisonment in the state penitentiary for a period of five years.

The testimony on behalf of the state in substance is as follows: Alvin Self was a deputy sheriff of Hughes county, located at the town of Atwood, on the 18th day of June, 1934. In the evening Ambrose Nix and Chester Nix, his brother, drove to the town of Atwood in a 1930 model Ford automobile; Self, in looking the parties over, did not like their actions, and, as they drove out of town, he followed them for a short distance, stopped them, and was asking the brothers questions about their license tag on the car they were driving, and asked them several other questions. The deputy placed them under arrest and started to Holdenville with them, the deputy driving, both the brothers sitting in the seat with him; he had not driven very far until the older brother threw his arms around the deputy, and a scuffle took place, the defendant in this case getting out of the front seat into the rear seat and began to choke the deputy, the brothers finally disarming the deputy, taking both guns from him.

They made the deputy get out of the car, completely disabled the car, and taking the deputy over on the railroad track nearby they forced him to run down the track a short distance, and then took him up on the mountain, all the time holding the guns on the deputy, making him do their bidding. After they got the deputy up on the mountain, they took his belt and tied him up to a tree; tore his shirt up and put a portion of it over his mouth so he could not holler. The deputy stated that the older brother told this defendant to get his money, that it was in his watch pocket; the deputy had bought some gasoline and put the change in his pocket.

The deputy further states this defendant went into his watch pocket and took therefrom the $5; that all this time Ambrose Nix and his brother were holding guns on the deputy and threatening him if he made any resistance. Witness Self further stated that after his money was taken and he had been tied, the defendant and his brother then took his gun, scabbard, and everything of value that he had on his person and left, leaving him tied to the tree; before they left the deputy the brother of the defendant asked him if he had tied the deputy so he could not get away, and the defendant replied that he had; then the brother of the defendant struck the deputy-over the head with the barrel of the pistol rendering him unconscious and they left the deputy tied. The deputy states positively that the defendant went into his watch pocket and took out the $5 bill while his brother, Ambrose Nix, was holding the gun on him and threatening him with violence.

The defendant took the stand in his own behalf and admitted in substance all of the testimony of the prosecuting witness, Self, except the taking of the $5 out of the witness Selfs pocket, this he denied, but he admitted the taking of the guns and scabbard.

The testimony of the state and the defendant is in direct conflict as to whether or not the defendant by force, threats, and with firearms took the money from the witness, one stating positively that he did, and the defendant stating positively that he did not.

Two propositions have been argued by the defendant. First, there is a fatal variance between the information and the proof. .Second, the court erred in refusing a directed verdict on the motion of the defendant, at the close of the state’s testimony, and at the close of the case.

This record has been carefully read and studied, and we fail to find any evidence to sustain the defendant’s contention that there is a variance between the information and the proof. The information charges the defendant with robbing the state’s witness Self of $5 with firearms, and threatening the party alleged to have been robbed, and putting him in fear. If the testimony of the witness Alvin Self is to be believed, every allegation in the information was proven. If the testimony of the defendant is to be believed, the defendant did not take Self’s money by force, or by the use of firearms. The defendant admits his brother Ambrose Nix was with him; that they took Self’s gnns away from him; and that he and his brother co-operated together up to the point of the robbery of the witness Self of the $5; this he denies, and that is all he does deny.

There is no merit in the contention of the defendant that the court erred in refusing to direct a verdict of acquittal at the close of the state’s testimony, and at the close of all of the testimony. The testimony in this case both by the state and the defendant shows a willful disregard for the law, and they not only took from the state’s witness, but took him up on the mountain side and tied him to a tree and beat him up with his own guns, then took his guns after they had robbed him of his money and left him tied to a tree. Every act of the defendant shows a criminal intent to rob the state’s witness and then to beat him up and leave him, as the defendant and his brother thought, helpless and in such a condition that he could not get loose and give the alarm until they had sufficient time to get out of the neighborhood. No unbiased jury could have reached any other conclusion than to find the defendant guilty, and the jury was very lenient when it imposed the penalty it did.

The testimony of the state and the defendant is in direct conflict as to the question of the state’s witness being robbed of $5 by the use of firearms. The jury is the exclusive judge as to the weight of the evidence; and if there is a clear conflict in the evidence or it is such that different inferences can properly be drawn from it, this determination will not be interfered with unless it is clearly against the weight of the evidence or it appears to have been influenced by passion or prejudice. Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277; Leslie v. State, 22 Okla. Cr. 111, 210 Pac. 297; Richards v. State, 22 Okla. Cr. 329, 211 Pac. 515.

A conviction will not be set aside where there is some substantial evidence to support the verdict. Tillery v. State, 23 Okla. Cr. 226, 214 Pac. 198.

There is nothing in the record to show that the verdict in this case was influenced by passion or prejudice. The defendant was accorded a fair and impartial trial. Finding no error in the record, the judgment of the trial court is affirmed.

EDWARDS, P. J., absent, not participating. DOYLE, J., concurs.


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    ALYSE WAGONER v. STATE.
    No. A-9041.
    Sept. 18, 1936.
    (61 Pac. [2d] 33.)
    B. C. Franklin, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error was by information charged with larceny; was tried, convicted, and sentenced to serve a term of six months in the state penitentiary, at McAlester. Motion for new trial was filed, considered, overruled, and the plaintiff in error appeals. The parties will hereafter in this opinion be referred to as they appear in the trial court.,

Allen Thompson, testifying for the state, stated:

“I live at 2488 North Madison; on the night of March 25, 1935, I went to the Lafayette hotel about 12 o’clock; when I arrived at the hotel I saw Alyse and Charley Wagoner; we began drinking and Alyse suggested she get a girl for me; we continued to drink after the girl arrived'; I went in the bath room and removed my shoe and sock and placed $57 in bills in the toe of my sock, then put my sock and shoe back on and went back and joined the party; Charley Wagoner gave me a glass with a butter dish on it when I went back; I saw Charley with a small bottle and inquired what he was doing with it, and Wagoner advised me it was toothache medicine; I got dizzy and did not pay any attention to what was going on.
“Alyse Wagoner had secured a room for me and the girl who afterwards proved to be Ophelia Lawrence, but Alyse told me her name was Marie; the girl Alyse brought to her apartment came in to the room where I was and sit down on the bed and I immediately went to sleep; I was awakened, Alyse Wagoner opened the door, came in. and pulled off my shoe and sock and immediately went out; the next morning when I awoke my money was gone, and I told Charley Wagoner I had been robbed and told him it was a frame up; Charley and Alyse joined me to go out and find the strange girl whom they said was named Marie; we did not find the girl and Charley and Alyse dodged me; I never got my money back.”

The state called J. N. Tyler, a deputy sheriff, who testified in substance as follows:

“I recollect the occasion of Allen Thompson claiming he lost his money; I went with Allen to see Alyse Wagoner at the Hotel; Alyse and Thompson had some heated words and it developed that Alyse and Charley Wagoner had referred to the strange woman as Marie; we went across the street to see Ophelia Lawrence at the Royal hotel; Ophelia told me Alyse brought her 10 dollars that morning after Thompson claims to have been robbed; Alyse and Ophelia went back in the hotel room and I stayed on the outside. I could not hear any of the conversation but I finally notified them I was going to arrest the whole bunch; Ophelia told me she had been begging Alyse to return the money to Thompson; Alyse denied having the money. I arrested them all and put them in jail; Ophelia finally gave me 10 dollars to keep until the trial was over, then it was to be returned to Allen Thompson.”

Ophelia Lawrence, testifying for the state, stated:

“I live at 605 East Archer; I know Alyse Wagoner; on the 25th day of March, 1935, Alyse Wagoner came over to my hotel to- ask me to go over to- her house for a drink; when we got there there were two- men there beside her husband; shortly after we got there one of the men left; Alyse said to Allen Thompson she wanted him to meet a girl friend of hers; Alyse and her husband kept telling Allen Thompson I was a nice girl, and Thompson said, can we go some place, and I said, I don’t know; I did not go to bed; I went in the room we had rented; Alyse went down and got the room; after we went in the room Allen pulled off his clothes and I sat there on the bed; he took off everything but his underwear; he kept his socks on.
“After we had been in there a few minutes the door opened; when Alyse came in it kindly scared me; she said not to say anything; I sat there and did not move; she went to- the bed, grabbed his socks and I did not say anything; she pulled the sock off and immediately left the room; when she left the room I left it and went over to my room, and found I had left my key at Alyse’s room. I saw Alyse the next morning in my room; she came there before I had gotten up and said, I am getting kind of scared, this guy is just raising sand about his money, don’t you say anything; here is $10; I told her I did not want to be in it, and she replied, ‘say nothing;’ I told him a girl named Marie took the money and that Marie lived over at the Small hotel. I kept the $10 and gave it to Mr. Tyler when he came, and told Mr. Tyler what had happened.”

Mr. J. N. Tyler, testifying for the state, stated:

“I have been in the sheriff’s office for about five years; I know Alyse Wagoner; I know Ophelia Lawrence; I know when Thompson lost his money; when I heard Thompson had lost his money I went up to Alyse Wagoner’s rooms and talked to her about it, and later went to see Ophelia Lawrence. When I went to see Alyse Wagoner, Allen Thompson was with me and began talking to Alyse and they had some words, and she told him she did not know anything about it; said she did not get the money; said a girl named Marie got it and she did not know where she lived, and she said she did not give a damn if she had taken his life. I took Alyse in her room and Charley her husband was in bed; I told them I wanted to get this boy’s money; Alyse still denied she got the money but said she would try to find Marie, that she roomed at the Small hotel. I told them I did not believe there was a Marie in the deal. Alyse stated there was and that Marie came to her room shortly after Allen Thompson came.
“I went across the street to see Ophelia where she roomed at the Royal hotel; she said Marie roomed at the Small; Ophelia denied any knowledge of it at first, but later she said she had 10 dollars Alyse brought over to her the next morning after Thompson claimed he lost it. I took Ophelia to get the porter Fulson, and while we were talking out in front of the hotel Alyse came up. Fulson was telling Ophelia about going back for the key, and Alyse spoke up and said, you know that is not so, this is not the girl, the girl was named Marie. Fulson said, no, I know this girl, she goes there all the time to see you; Alyse says you are sure mistaken, this is not the girl we rented the room for from you. We then went up stairs, I sent Alyse and Ophelia in the room and told them to get the money or I was going to arrest all of them; they stayed so long I went up and stood outside the door for a few minutes and then knocked on the door; I told them I was going to arrest all of them if they did not get the money; Ophelia said I am just telling her now, Mr. Tyler, to give him the money back. I finally took all of them to jail. Ophelia gave me flO that she claimed Alyse gave her.”

Mrs. Thomas C. Wilson, called in behalf of the defendant, stated she had lived in Tulsa for four years; the defendant had worked for her almost two years of that time; the reputation of the defendant during the time she worked for her was good.

Walter Fulson, testifying on behalf of the defendant, stated:

“I live at 533' East Jasper; I am a porter at the Lafayette hotel; I was there on the night of March 25, 1935; I saw Mrs. Wagoner and Ophelia, I do not remember seeing the gentleman there (referring to Mr. Thompson) ; Ophelia rented a room from me that night and paid me for the room; the room was No. 304; Ophelia left the hotel about 4:30, to the best of my knowledge; I judge it was about three when they went into the room; I was sitting in the lobby when Ophelia came down stairs, and started across the street and looked back; after that one of the porters from her hotel came over to the hotel and knocked on Mrs. Wagoner’s room and asked for a key.”

The defendant, testifying in he own behalf, stated: She was living at the Lafayette Hotel on the 25th day of March, 1935; had lived in Tulsa a little more than four years; had been engaged in private homes, and checking cabs.

“Ophelia Lawrence was in the Lafayette, in my room on the night of March 25, 1935; Allen Thompson was also there; Thompson was about drunk when he came to the room; he had known my husband for several years; he tried to get Charley to go for Ophelia but he would not; Charley said, ‘if Alyse wants to she can go’; I woke Ophelia and said ‘Allen is in the house and wants to see you’; she said, ‘how long has he been there?’ and I said he had just come in; as we went back we met Baby Howard, and we went to Berry’s Garage, as Howard claimed he wanted to do some telephoning; the boys were sitting in the bed room talking to Charley when we came up and I asked if Ophelia came up, and he said, ‘yes, she is in the living room talking with Allen.’ I went to the living room and asked Ophelia what she was doing with the lights off, and she said she was not doing anything, just hugging him. I went down and told the porter Allen wanted a room, and when the porter came up Allen told Ophelia to go ahead and pay him and he would give her the money back when he got to the room; Ophelia paid the porter 50 cents. I next saw Allen about seven o’clock the next morning. I did not go in his room or pull his socks off and take any money out of them, nor did I take any money from his person. When he came to our room the next morning he said the girl had taken the money off of him; I laughed because I did not think he had any money.”

Thompson claimed he knew Ophelia. “I got up and went over to the hotel to see Ophelia and she was asleep; I said, ‘Ophelia., Allen said you took some money off of him last night,’ and she said, ‘Allen is lying’; she said she did not go to bed; she said he would not do what I wanted him to do and I did not get his money; I did not give Ophelia 10 dollars she stated I gave her. Mr. Tyler brought Ophelia up to the house; he brought her back again about a quarter to 12 that night and took all of us to the county jail. I never told Thompson that the woman I brought up was Marie; he knew Ophelia when she came up there.”

Charley Wagoner, testifying for the defendant, stated:

He was the husband of Alyse Wagoner.

“I know Allen Thompson, have known him for more than 20 years; he visited me often since he met me here; he was in my room on the 25th of March, 1935. I know Ophelia Lawrence; they had been' there on more than one occasion; on the night of March 25th, 1935, about 11:30 or 12, Allen Thompson, Wallace Alexander and Omar Mitchell came up to our rooms, and Thompson wanted to know if we had anything to drink; we took a drink and he kept on asking why I was not drinking; Thompson asked me to go and find Ophelia for him; I finally told Alyse to see if she could find her and bring her and a ginger ale back with her; when Ophelia came in Thompson went in to the front room and lay down on the studio couch and had gone to sleep; she gave me the ginger ale and goes in to where Thompson was and she turned the light out. When Alyse came in she asked Ophelia what she was doing in there with the lights out, and Ophelia said nothing, just hugging porter. We tried to wake Thompson but could not; Mitchell finally woke him. After fooling around a little after they woke him up Thompson taken a high ball and gets Alyse to rent a room, and she goes down and it was not long until Fulson came up, and Ophelia gave Fulson 50 cents for the room; Ophelia and Thompson stayed in our apartments a little while and I never saw them any more that night. About seven o’clock the next morning Thompson came to the room and said, Where does that girl Ophelia live?’ And Alyse says, ‘she stays right across the street at one of those hotels.’ Thompson said she had taken something like $77 off of me last night, and asked Alyse to go with him and find her, as she was liable to spend the money. We went to the street with Thompson and I had to go on to town; we left him and it was not long before Thompson came back again; that night about 8 o’clock Tyler and Thompson was at the door, and Alyse and this girl; they came in and Tyler told Alyse he wanted to talk to me privately. These two girls and Tyler told me that Ophelia had taken some money off of Thompson and that he was trying to recover the money.
“Tyler left shortly afterwards to talk to Ophelia. I went down on the street, and Mr. Tyler was riding around the block and was going back and forth up in the Boyal Hotel there with Ophelia. Ophelia came in and wanted to talk with Alyse privately; I eavesdropped the conversation and Ophelia tells Alyse to let her have some money, that "Tyler is going to arrest me if I do not let him have some money.’ About that time Tyler came in and said he was going to take Ophelia to jail, and send'her to the penitentiary. One word brought on another and Tyler gets hot and says, ‘I am going to take all three of you down to jail.’ I did not tell Thompson the woman he had up there with him was named Marie.”

Several other witnesses testify as to seeing, the defendant and the woman named Ophelia around at different places, and also as to the prosecuting witness Allen Thompson’s actions with Ophelia, keeping late hours and night parties, and going back and forth from the room of the defendant and her husband to Ophelia’s and other places.

The foregoing is the substance of the testimony material to the issue joined in this case.

The defendant in her petition in error has assigned four errors alleged to have been committed by the trial court, the third assignment being that the court erred in overruling plaintiff in error’s motion for a new trial. The motion for a new trial states one ground for a new trial, and that is:

“There is a total lack of evidence to support the verdict of the jury; that it is evident that the jury was prejudiced against the defendant on the ground of her alleged husband, Charley Wagoner.”

The defendant, in her argument in support of the assignment that there is no evidence to sustain the verdict of the jury, states that the jury was prejudiced against her on account of her husband, Charley Wagoner. There is no evidence in the record tending to support this contention. When the record is reviewed, we find this deplorable condition: We find a man and his wife living in a hotel apartment having drunk men in the apartment at late hours at night, the wife leaving the apartment and going across the street and securing a woman for the prosecuting witness in this case, Allen Thompson. It is admitted by all the witnesses that all parties mentioned were in the apartment of Charley and Alyse Wagoner. The only dispute in the testimony is the defendant denies she got Allen Thompson’s money. The testimony is in direct conflict upon that one question, and that one only: Did Alyse Wagoner get Allen Thompson’s money and the next morning turn over $10 to Ophelia Lawrence and ask her to say nothing, and tell Thompson the girl she got for him the night previous was named Marie? The defendant and her husband contradict Thompson and say that he knew Ophelia Lawrence, and knew there was no girl by the name of Marie with him that night.

All of the witnesses admit Allen Thompson was in the apartment of the defendant and her husband after midnight; that he was drunk and went to sleep on the studio couch; and that when Ophelia Lawrence came up she went into the room where Thompson was and turned out .the light, and when the defendant came into the apartment she asked Ophelia why she had the light turned off, and Ophelia replied she was hugging him; later the defendant goes downstairs and gets a room for Thompson and Ophelia; Ophelia pays 50 cents for the room, and Thompson undressed and got on the bed and went to sleep. Ophelia says she did not go to bed, but says that after she had been there a short while the defendant in this case opened the door and came in and went to the foot of the bed and took Allen Thompson’s socks off and immediately hurried out of the room. Thompson says his money was in his sock. The testimony, though conflicting, shows by direct and positive testimony that the defendant went to the room where Ophelia and Allen Thompson were and pulled Thompson’s socks off and rushed from the room, and Ophelia says the next morning the defendant came over and gave her $10 and requested her to say nothing.

The only question to be considered by this court is: Is there sufficient evidence to sustain the verdict of the jury? This court has many times passed on this question, and in the case of Tillery v. State, 23 Okla. Cr. 226, 214 Pac. 198, it said that a conviction “will not be set aside * * * where * * * there is some substantial evidence * * * to support the verdict.”

The jury is the exclusive judge of the weight of the evidence, and if there is a clear conflict in the evidence, or it is such that different inferences can be drawn from it, this determination will not be interfered with unless it is clearly against the weight of the evidence or appears to have been influenced by passion or prejudice. Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352; Evans v. State, 55 Okla. Cr. 157, 26 Pac. (2d) 767.

In this case there is no indication that passion or prejudice entered into the consideration of the jury in arriving at its verdict.

In Adams v. State, 54 Okla. Cr. 363, 21 Pac. (2d) 1075, in the first syllabus the court said:

“Conflicting issues of fact are for the sole determination of the jury. A conviction will not be disturbed on appeal because of conflicts in the evidence, if the evidence adduced reasonably tends to' support the verdict and judgment.”

The jury after hearing the evidence, the instructions of the court, and argument by counsel, by its verdict found against the defendant, and this court is not inclined to disturb the finding of the jury. We hold there is sufficient testimony though conflicting to sustain the judgment.

The case is affirmed.

DOYLE, J., concurring. EDWARDS, P. J., absent, not participating.


text:
    BEN BOWDRY v. STATE.
    No. A-9074.
    Sept. 18, 1936.
    (61 Pac. [2d] 31.)

      Bob Howe and John Howard Payne, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereafter referred to as the defendant, was convicted of possession of intoxicating liquors, and sentenced to pay a fine of $100 and to be imprisoned in the county jail for a period of 3'0 days. Before the case was called for trial the defendant filed a motion to suppress the evidence on the ground that the officers when they searched his home were not armed with a good and valid search warrant authorizing them to search his home and premises. Testimony in support of motion to suppress was taken, in which a copy of what purported to be the affidavit for a search warrant, and the search warrant, were introduced in support of his motion to suppress, and the county attorney and the defendant’s attorney agreed, and the court let the record show, that Defendant’s Exhibits 1 and 2 were correct copies of the original of whatever they purport to be, Exhibit 1 being what purported to be an affidavit and application for a search warrant, and Exhibit 2 was what purported to be the search warrant. The motion to suppress the evidence was by the court overruled, and the defendant duly excepted.

The defendant in his second assignment of error alleges :

“Said court erred in overruling plaintiff in error’s motion to suppress the evidence.”

Section 289, O. S. 1931, defines an affidavit as follows :

“An affidavit is a written declaration, under oath, made without notice to the adverse party.”

Section 3223, O. S. 1931, is as follows:

“A search warrant shall not he issued except upon probable cause, supported by affidavit, naming or describing the person, and particularly describing the property and the place to be searched.”

.Section 3224, O. S. 1931, provides:

“The magistrate must, before issuing the warrant, take, on oath, the complaint of the prosecuting witness in writing, which must set forth the facts tending to establish the grounds of the application or probable cause for believing that they exist.”

An examination of the affidavit introduced by the defendant in support of his motion discloses that there is no jurat attached to the affidavit, there being a total failure to show the name of any officer authorized to administer the oath attached to the purported affidavit.

In U. S. v. Kelih (D. C.) 272 F. 484, the court in the first paragraph of its syllabus said:

“A search warrant was void, if issued without an oath or affirmation, as required by Const. Amend. 4.”

In Morris v. State, 2 Tex. App. 502, 503, the court said:

“An officer taking an affidavit must sign the jurat; otherwise, the document is not an affidavit, and will not suffice as the basis of an information; and this court, on an appeal from a conviction * * * based upon such uncer-tified document, not only reverses the judgment, but dismisses the cause.”

Section 2639, O. S. 1931, is as follows:

“No warrant shall be issued to search a private residence, occupied as such, unless it, or some part of, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort.”

The record in this case clearly shows that there was no affidavit upon which to predicate the issuance of the search warrant, the officer’s name not being attached to the jurat.

It has been repeatedly held by this court that evidence obtained by the search of the defendant’s home under a search warrant issued without authority of law and the proper affidavit, for the sole purpose of securing evidence against the defendant, is a violation of section 30 of the Bill of Bights (Const, art. 2), and is inadmissible. The said section of the Bill of Bights is a pledge of good faith to the people of the state, all alike, that they shall be secure in their person, their houses, papers, and effects, against unreasonable searches and seizure. This security has vanished and the pledge violated by the state that guarantees it when officers acting under the authority of the state fail to secure a valid search warrant to search the private residence of a citizen.

Without prolonging this opinion further we hold that in this case there was no jurat of the officer attached to the purported affidavit for the search warrant, and that by reason of that fact there was no valid affidavit upon which to predicate the search warrant, and that the motion of the defendant to suppress the evidence should have been sustained, and the evidence obtained by reason of the unlawful search should have been suppressed.

The conviction of the defendant having no competent evidence to' support it without the evidence which had been unlawfully obtained, the judgment must be reversed.

DOYLE, J., concurs. EDWABDS, P. J., absent, not participating.


author: DOYLE, J.

text:
    Ex parte JOHN FOSTER.
    No. A-9197.
    Sept. 18, 1936.
    (61 Pac. [2d] 37.)

      Elmore Pinnick, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for respondent.
   DOYLE, J.

This is an application for writ of ha-beas corpus by John Foster, who alleges that he is illegally restrained of his liberty and unlawfully imprisoned by John Watt, chief of police of the city of Oklahoma City, Okla., as follows:

“The petitioner alleges the facts to be, that on the 10th day of December, 1928, he was duly sentenced to serve from one year to life in the penitentiary of the state of Illinois, by the Judge of the district court of Franklin county, state of Illinois, and that on the 30th day of December, 1928, was committed to said prison at Menard, 111. That on the 18th day of July, 1935 said petitioner was regularly paroled to the custody of Fred J. Tunnard, of Oklahoma City, Oklahoma county, state of Oklahoma, and has since said time been within the said state of Oklahoma, that at no time has your petitioner violated the terms or conditions of said parole.
“That your petitioner is not now charged with the commission of any crime in the state of Illinois or any other state, that no warrant of arrest has been issued by any magistrate of the state of Oklahoma for the arrest and detention of your petitioner as by law required;
“Your petitioner further states that he is not a fugitive from justice, but is in the state of Oklahoma under and by virtue of the provisions of the parole issued him, a copy of said parole is hereto attached, filed herewith and made a part hereof;
“That all of the acts of unlawful imprisonment and illegal restraint as above set forth are in violation of the Constitution and the laws of the United States, and in violation of the Constitution and laws of the state of Oklahoma.”

The respondent in his return to the writ of habeas corpus set up that the petitioner is held in custody by the extradition agent of the state of Illinois under a warrant of extradition issued by the Governor of this state. A copy of the extradition warrant is attached thereto.

It is contended on the part of petitioner that he having been paroled in accordance with the laws of the state of Illinois to the custody of a citizen of the state of Oklahoma, he left the state of Illinois with the consent of the proper authorities; that he has not violated the conditions of his parole and for the reasons stated is not a fugitive from justice.

From the record before us it appears that the requisition issued by the Governor of the demanding state and the documents thereunto attached and certified to by him were properly authenticated, as was also the extradition Avarrant issued by the Governor of this state.

The United States Constitution, article 4, § 1, provides :

“Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Becords and Proceedings shall be proved, and the Effect thereof.”

Article 4, § 2, cl. 2, provides:

“A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the Executive Authority of the State from which he fled, be delivered up to be removed to the State having Jurisdiction of the Crime.”

Section 5278, U. S., Bev. St. (18 U. S. C. A. § 662), prescribes the procedure necessary to put into effect the power conferred by the Constitution, relating to extradition proceedings. It reads:

“Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State or Territory to which such person has fled, and produces a. copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, it shall be the duty of the executive authority of the State or Territory tO' which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within six months from the time of the arrest, the prisoner may be discharged. All costs or expenses incurred in the apprehending, securing, and transmitting such fugitive to the State or Territory making such demand, shall be paid by such State or Territory.”

In Ex parte Ridley, 3 Okla. Cr. 350, 351, 106 Pac. 549, 26 L.R.A.(N.S.) 110, this court held:

“A ‘parole,’ as the term is used in criminal law, may he defined as the release of a convict from imprisonment upon certain conditions to he observed by him, and a suspension of his sentence during his liberty thus granted.”

Held further:

“An executive order, revoking a parole for violating a condition thereof, and directing the rearrest and return to custody of the convict, is not violative of the constitutional guaranty ‘that no person shall be deprived of his liberty without due process of law,’ and ‘tha]t no warrant shall issue but upon probable cause, supported by oath or affirmation,’ since being a convict at large by executive clemency, which he has accepted on conditions included therein, the convict, upon violation of such conditions, is merely an escaped convict, and not entitled to invoke such constitutional guaranty.”

In the case of Ex parte Hamilton, 41 Okla. Cr. 322, 273 Pac. 286, this court held:

“Where a convicted prisoner in another state is there paroled, and voluntarily comes into this state, and thereafter his parole is revoked by the proper authorities of the former state, the prisoner then has the status of an escaped convict, and is a fugitive from justice from the former state, and if apprehended in this state he may upon requisition be rendered to that state. His status is not changed by the fact that he came into' this state after being paroled with the consent of the authorities of the former state.”

Held further:

“Under the conditions named in the preceding syllabus, the legality of the revocation of the parole of the prisoner is a question for the courts of that state, since they alone have the right to construe the Constitution and laws of that state.”

And see Ex parte Collins, 32 Okla. Cr. 6, 239 Pac. 693. See, also, Scott on Interstate Rendition, p. 83.

The Supreme Court of Missouri, in the case of State v. Hoffmeister, 336 Mo. 682, 80 S.W. (2d) 195, 196, had before it an application for a writ of certiorari to quash a judgment discharging a paroled convict from the agent’s custody in a habeas corpus proceeding.

There the petitioner, Arthur Rosenberg, an inmate of a penitentiary in the state of Illinois, was given permission to reside temporarily and conditionally in the city of St. Louis, Mo., and work for a citizen of that city. Upon information that Rosenberg was under arrest for a violation of a law of Missouri, the warden ordered him retaken and returned to actual custody in the penitentiary, pending a decision of the department of public welfare of Illinois on the question whether or not he had violated his parole. In the opinion it is said:

“Thereupon the Governor of Illinois made requisition for his return to said state. The requisition was honored by the Governor of Missouri who issued an extradition warrant under which Rosenberg was taken into custody in Missouri by an agent of Illinois for return to the penitentiary. Upon application to the circuit court of the city of St. Louis, a judge of said court issued a writ of habeas corpus. Upon return to the writ and reply thereto the case was tried and Rosenberg discharged from the custody of the agent of Illinois. Illinois seeks a review, on certiorari, of this ruling on habeas corpus.
“At that trial it was admitted that the requisition conformed to the federal statutes and presented a prima facie case. However, it was contended that Rosenberg had not violated his parole, and for that reason was not a fugitive from justice. The circuit court so found and discharged him. This Avas the only question presented.
“Illinois contends that the courts of an asylum state are without jurisdiction on habeas corpus to determine the question of the guilt or innocence of the person in the custody of the agent of the demanding state. The contention must be sustained. It has been so- ruled by all the authorities. 18 U.S.C.A. § 662, note 61, pp. 329, 330, 331.”

In People ex rel. Hutchings v. Mallon, 218 App. Div. 461, 218 N.Y.S. 432, 433, it appears that the relator came to New York by express direction of the authorities of the state of California granting the parole to accept an offer of employment:

“Held extraditable as ‘fugitive from justice/ within Const. U. S. art. 4, subd. 2, and Eev. St. U. S. § 5278 [18 U. S. C. A. § 662], after parole was lawfully revoked by Governor of demanding state.” And see Re Hope, 7 N. Y. Cr. E. 406, 10 N. Y. S. 28.

It is well settled that the presence of the accused in another state is sufficient, if unexplained and uncontra-dicted, to warrant his return to the demanding state upon formal and regular requisition, and it is incumbent upon the petitioner for habeas corpus seeking to defeat extradition, to establish that he is not a fugitive from justice. Ex parte Baker, 33 Okla. Cr. 413, 244 Pac. 459.

It is well settled that a person may be a fugitive from justice within the meaning of the provisions of the Federal Constitution and laws concerning extradition after his conviction as well as before.

In Ex parte Haynes, 98 Tex. Cr. R. 609, 267 S. W. 490, 492, the Court of Criminal Appeals of Texas held:

“When a prosecution is initiated and pursued to judgment of conviction, accused is ‘charged’ within meaning of the United States Constitution.”

In State ex rel. v. Remann, 165 Wash. 92, 4 Pac. (2d) 866, 78 A.L.R. 412, the Supreme Court of Washington held:

“In extradition proceeding, involving escaped convict, a person is ‘charged’ with crime after his conviction as well as before.”

In People ex rel. Hutchings v. Mallon, 218 App. Div. 461, 218 N.Y.S. 482, it was held:

“Persons convicted of crime are ‘charged’ within Const. U. S. art. 4, § 2, subd. 2, and Rev. St. U. S. § 5278 [18 U. ,S. C. A. § 662], relating to extradition.”

In People ex rel. v. Enright, 112 Misc. 568, 184 N.Y.S. 248, 253, this court- in part said:

“The constitutional provision regarding' extradition from one state to another was adopted to promote justice, to aid the states in enforcing their laws, and not to shield malefactors. The Supreme Court of the United States has emphatically announced its adherence to the doctrine that a faithful and vigorous enforcement of the provisions relating to fugitives from justice is vital to the harmony and welfare of the state, and that, while a. state should take care that the rights of its people are protected against illegal action, both it and the judicial authorities throughout the Union should equally take care that the provisions of the Constitution be not so narrowly interpreted, as to enable offenders against- the laws of a state to find a permanent asylum in the territory of another state.
“The action of the Governor in issuing his warrant should not be nullified by the courts-, unless it conclusively appears that the accused is not a fugitive from justice and that the issuance of the warrant was in plain contravention of law.”

See Appleyard v. Massachusetts, 203 U. S. 222, 27 S. Ct. 122, 51 L. Ed. 161, 7 Ann. Cas. 1073; Compton v. Alabama, 214 U. S. 1, 29 S. Ct. 605, 53 L. Ed. 885, 16 Ann. Cas. 1098; Commonwealth v. Superintendent of Philadelphia County Prison, 220 Pa. 401, 69 A. 916, 21 L. R. A. (N. S.) 939.

Upon a careful examination and consideration of the record before us, we are of opinion that upon the undis puted facts petitioner is a fugitive from justice from the demanding state and his arrest and detention are not in any way illegal.

The writ of habeas corpus is accordingly denied, and the respondent, John Watt, chief of police of Oklahoma City, is directed to surrender petitioner, John Foster, into the custody of the agent of the state of Illinois in execution of the Governor’s rendition warrant.

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


text:
    BILL MATHIS et al. v. STATE.
    No. A-9073.
    Sept. 25, 1936.
    (61 Pac. [2d] 261.)

      W. G. Stigler, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, hereafter referred to as the defendants, were charged by information with the crime of open and notorious adultery; the charging part of the information is as follows:

“That Rhodie Hill and Bill Mathis, did, in Latimer County, and in the State of Oklahoma, on or about the 1st day of June, in the year of our Lord One Thousand Nine Hundred and Thirty-five and anterior to the presentment hereof, commit the crime of Adultery in the manner and form as folloivs, to wit:
“That is to say: That on the day and date above mentioned and in said county and state, did unlawfully, willfully, voluntarily, and feloniously associate and cohabit together, living in open and notorious adultery, they, the said defendants, not being then and there married to each other, and the said Bill Mathis then and there having a living wife, and the said Rhodie Hill having a living husband, and that the said defendants did unlawfully, voluntarily, and feloniously have carnal knowledge of the body of each other, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the State.”

It will be seen from the information that the defendants are charged with open and notorious adultery, and not with the crime of adultery.

The defendants were tried jointly, convicted, and each sentenced to serve two and one-half years in the State Penitentiary. Motion for a new trial was filed, considered by the court, overruled, and exceptions duly saved.

The testimony, in substance, is as follows: Bill Mathis was married and had a living wife; Rhodie Hill was married and had a living husband; the husband of Rhodie Hill had been convicted of a crime and sentenced to the United States Reformatory at El Reno, Okla.; Mathis and Hill had known each other for several years, and when Hill had to go to prison Mathis bought some property from Hill, giving him a note and mortgage on the property to secure payment; Mathis was to make a monthly payment on the note.

The testimony further shows that after Mathis bought Hill’s property, Mathis and his family moved to the farm formerly occupied by Hill, in Haskell county. Before Hill went to the penitentiary, Mathis was visiting with Hill and his family, and Hill requested the defendant Mathis to assist in looking after his family and help them along during his absence. It is further shown that at the request of Mrs. Hill’s mother, Mathis assisted in moving Mrs. Hill and her two children to' the home of John Bunton, in Latimer county, near the town of Red Oak, where Mrs. Hill’s mother resided. The defendant Mathis was given credit on his note and mortgage for his charges for moving the Hill family to' the Bunton home. At the ■time the defendant Mathis had made application and was trying to get work at the penitentiary at McAlester as a guard, he made several trips to McAlester about the time the Hill family was moved, and in returning from McAlester the defendant Mathis would often go by the Bunton home where he had left the wife and children of Hill.

The proof shows the Bun ton and Hill children did not get along very well together, and Mrs. Hill drove with the defendant to Wilburton to see if she could find a house to rent and to obtain work in the sewing room; she could not find a house, and on her return home a small house belonging to Jones and Hancock was rented; this house was located near the main road and near where the Joneses and Hancock lived. The defendant Mathis assisted building an additional room to the house Mrs. Hill had rented and was at the house some four or five days at that time, while building the room and waiting until the water caused from continued rain subsided.

Later on the mother of Mrs. Hill requested the defendant Mathis to assist in selling some the household goods, and engaged him to move them to Texas; during the time he was engaged in selling the property the defendant Mathis stayed at the house where Mrs. Hill and her mother lived.

Bam B. Jones in substance testifying for the state stated:

“I met the defendants Rhodie Hill and Bill Mathis; they rented a one room old fashioned log house from us in May, 1935, and moved into the house; when they first came we knew him as Mr. Hill, and later we found out his name was Mathis; Mrs. Hill lived in the house a month, lacking two days; they paid one dollar a month for the house; Mr. Hancock and I came to Wilburton one time in Mr. Mathis’ car, and he said his wife was going with us; the children were there at the time. I live about 300 •yards from the house we rented to' them; Mr. Mathis was around the house with Mrs. Hill and her children quite often.”

On cross-examination witness stated:

He and Mr. Hancock owned the house together. “Hancock rented the house and I went down to' see who' had moved in; the house had been vacant three or four months; the time I went down I saw Mathis, a woman and two children; I was down there probably a half dozen times while they lived there; every time I was there their acts were proper, I did not ask Mr. Mathis his name, nor did I try to find out from him or from the woman where they came from; they had a graphaphone and I went down there to hear some music; when they rented the house it had one room and we built another room about two weeks after they rented it; I hauled the lumber and Mathis helped build the room; I would go down there most any time during the day; I live about 60 yards off the main highway but this house is right by the road side.
“I have been convicted of larceny of some timber and served six months at McAlester. All I know about their moving down there, they told me they was a bunch of the Hills; there were a number of Hill families living in the neighborhood. My information with reference to Mr. Mathis and Mrs. Hill not being husband and wife came through Willie Morris, Foster Muse and Mr. Briggs. When I would be down there I never addressed the defendant either as Mi*. Mathis or Hill. I never discussed his name with him.”

Frank Guthrie, testifying for the state, in substance stated:

“I am a married man; I know Mr. Mathis and Mrs. Hill; they lived down in my community about two miles and a half east of Cravins, on Willis Hancock’s place; I have seen both of the defendants at the house, also the children; they got their mail out of my box; I have seen the defendants traveling together; we got some letters for Mrs. Hill after she moved away; we did not receive any addressed to the defendant Mathis.”

Willis Hancock, testifying for the state, stated:

“I am 50 years old; live near Cravins, Oklahoma; I know the defendants Rhodie Hill and Bill Mathis; they lived in a one room log house of mine about a month, I saw them often; this man tolcl me his name was Hill; they never did tell me anything about being man and wife; the defendants and two children were there about the place; the defendant Bhodie Hill came to my house and milked my cows; the man paid the rent on the house; I went with them to Wilbur ton one time, Sam Jones was with me.
“I have seen the bill fold exhibited to' me but I could not read it; when the defendants were living close to my house Mathis showed me the bill fold; I cannot read the English language; he opened the bill fold to show me the name in the book; he never told me his name; when we rented the house to Mrs. Hill we agreed to put an additional room to it.
“Mr. Mathis never said anything in my presence about he and Mrs. Hill being man and wife; during the times I would be there they conducted themselves properly, like the ordinary persons would; I never saw any improper actions betiveen them at any time; I do speak a little English but not much.”

Willis Morris testifying for the state stated:

“I am 36 years old; I live at Salomi; Bhodie Hill is my sister; her husband is now in the Federal prison; I had seen the defendants Bill Mathis and Bhodie Hill riding around in the car, they passed my house several times; they lived for a while about two1 miles from- my house; moved there from Stigler; I was never up to the house where they lived; they told me they lived at the Hancock place; I did not know where they moved to; when they first came they stayed at my mother’s; Bhodie stayed there something like two weeks and then pulled out again; I did not know where they went; the children, Gene 11 years old and Marie eight, stayed with my mother. When I would see them in the car sometimes they were alone, and sometimes the children were with them; I do not know whether Bill Mathis’ wife was down there where Bhodie Hill and the defendant Mathis lived.
“I had a conversation with Mr. Briggs, in town, about these people living up in the Hancock house but I never did gO' up there myself; I had trouble with John Bun-ton’s wife and probably my mother and paid a fine; I never had any trouble with Hill or my sister Rhodie Hill; I had seen the defendant at my mother’s place; I never saw anything improper between the defendants, the only thing I know is they were living up there on the Hancock place; their conduct when they were in my presence was proper; they unloaded their stuff at my place and moved it the next day; at the time I objected to them unloading it; at this time I did not know the defendant Mathis. Later mother and John Bunton’s wife and I had a difficulty over a pressure cooker that belonged to Foster Muse. They wanted to take it away and I would not let t¡hem. We had a fight and they both had hold of a claw hammer and I hit at John’s wife and hit my mother, I pushed them out of the door; I did not knock my mother down; I have not been around Bunton’s place; I don’t believe John Bunton ever came voluntary to me and made any complaint. Mrs. Bunton came and talked quite a bit.”

W. W. Briggs, the deputy sheriff, stated:

“I know the defendants Rhodie Hill and Bill Mathis. Complaints were made to me about their living, together. Bill Morris, Foster Muse and his wife talked to me about the defendants.”

On cross-examination witness stated:

“Some parties came several times and wanted me to go over and talk Avith the defendants, and I advised them I would have nothing to do about it unless some of them swore out a warrant; I never did go over to where they claimed the defendants Avere living; I went down to the place after the fight between Bill Morris and John Bun-ton’s wife and his mother.”

John Tackett, testifying, stated:

“I know the defendants; I don’t remember exactly the first one, but John Bunton, and the fellow who lives in the house past Bunton — Morris—the substance of the testimony was the couple living- over there in the Hancock house were not married, and there ought to- be something done about it. I never did make an investigation on the conditions there; I never got over there until after they got out the warrant for them; I heard Billy Morris had trouble with his mother.”

A number of witnesses who- had known the defendant Bill Mathis testified to his previous good character.

John Bunton was called as a witness for the defendant, and stated he lived near the house Rhodie Hill and her children lived in a short distance from Red Oak, in Latimer county, Okla.; that several months prior to the time Rhodie Hill rented the house, Bill Mathis moved Rhodie Hill to his house; the witness’ wife and grandmother came with them; the defendant Mrs. Hill stayed with the witness about three or fourth months; Mathis moved Rhodie Hill to the witness’ place and stayed that night'and left the next morning. Witness stated:

“I never saw the defendants engaged in any secret conference or secret conversation; when the defendant Mathis spent the night at my house he and I slept on a bed on the floor, and once Mrs. Hill’s little boy slept on the bed with Mathis; when Mrs. Hill moved away from my house she came over to Wilburton and tried to rent a house but could not do so; the defendant Bill Mathis drove her over to Wilburton; Mathis usually came to- my house when he came to that neighborhood; when Mrs. Hill moved back from where she had gone to keep boarders at a saw mill, the defendant Bill Mathis came and was around there for something like a week; me and my family, Mrs. Hill and my wife’s grandmother had planned to- go- to Texas to pick cotton that fall; we employed Mathis to sell a lot of stuff for us, which he did. I never talked to- W. W. Briggs or anybody else about the defendants living together.”

On cross-examination witness admits he pleaded guilty and paid a fine on a charge of petit larceny; the defendant Bill Mathis came back and forth while the defendant Khodie Hill was living in the Hancock house near the highway; “during the time the defendants were at the house there, day or night, I saw nothing improper or any act upon the part of either that would indicate any ■immoral action.”

Mrs. W. M. Mathis testified for the defendants and stated:

“I live 10 miles southeast of Stigler; have been living there since the 14th of January, 1935; I know the defendant Mrs. Hill, have known her for about a year, was at her home once; after we moved to where we are now living; my husband went to hunt work, and would be gone for a Aveek or two at a time; I Avould hear from him by mail; my family consists of eight children, my grandchild and stepchild, all at home; during the time Mr. Mathis would be absent he always left sufficient supplies for me and the children; I knew my husband was down there boarding; I went with my husband one time to John Bun-ton’s; were there only a short while, I could not tell you exactly \Arhere John Bunton lives, but it is something like six miles from Ked Oak; he had a three room house and if I was not turned around it faced the east.”

Khodie Hill, one of the defendants, testified as follows :

“I am the wife of E. L. Hill; I know the defendant Mathis; my husband just before he went to jail sold out to him, and Mathis paid some cash and my husband took a note and mortgage for the rest of the stuff; we moved to1 Stigler a year ago last April. The amount of the note was $275. When my husband was arrested he was taken to'Stigler, and from there to Poteau, and from Poteau to Muskogee; I saw him in Poteau and in Muskogee; when they taken him from Poteau to Muskogee we drove up 'from borne to see bim and while there I beard my husband tell Mr. Mathis, as yon owe me I would like for yon to kindly see after these children and my wife; Mr. Mathis moved ns over to John Bunton’s, and I gave him credit for $10 on the note; I lived at John Bun-ton’s home for a while and then rented the house from Mr. Hancock for $1 per month until the additional room was built; I moved into the house some time in June, the next day after I rented the house; I lived in the little house something like three weeks. Mr. Mathis tried to make Mr. Hancock understand him and took out his bill fold and showed him his name on the bill fold. Mr. Bun-ton, his wife, and grandmother, hired Mr. Mathis to sell some stuff they wanted to get rid of as they were figuring on going to Texas for the fall cotton picking.
“I went with Mr. Mathis to Stigler one time and left the children with my mother. The credits on the back of the note are the amounts of money Mr. Mathis paid me on the note he owed my husband and the credit for moving us. My brother Bill Morris and I are not on good terms and have not hardly spoken to each other for about six years. When I moved up to the saw mill to keep boarders I knew a number of people up there, including Sam Thresher and his wife, a Mr. Ford, and Dave Hill and his wife; Mrs. Ford is the lady who just left the stand; I could not say positively how many days Mr. Mathis was down there at the place where I was living in the John Bunton neighborhood.”

On cross-examination, Mrs. Hill was asked by the county attorney about certain letters, and if they were in the handwriting of her husband, but the letters, if any he had, were not introduced in evidence, and no reason was given why the witness was questioned about the letters.

Other witnesses were called as to the transaction of sales, and purchases made by the witness Mathis, and from Mathis to the witnesses.

The defendant W. N. Mathis testified in his own behalf and stated:

“I live about nine and one-half miles southeast of Stigler, and then detailed his dealings with Mr. E. L. Hill, and the purchasing of some property, and the executing of a note and mortgage to Hill, and introduced the note and mortgage in evidence. At the request of Mr. Hill I drove his wife and children in my car to' Poteau to- see Mr. Hill; he asked me to pay as much as $15 a month on the note, if I would it would help his family along.
“I fixed up a trailer and moved Mrs. Hill and her children and her property down to the John Bunton’s home in the neighborhood mentioned here in this trial; I told them when I rented the little house that Mrs. Hill and her children would live there, and that my name was Mathis; finally I took my bill fold out and showed it to the man in order to try and malee him understand who I was. John Bunton and I helped Mrs. Hill move into the house the next day after we rented it, and I stayed around four or five days and helped put up a room; it had a roof on it but did not have any weather boarding. Sam B. Jones and myself worked on the room; during the time I was there Mr. Jones and Mr. Hancock both came down to the house, once they came together and other times they would be separate, one at a time; I drove Mrs. Hill to Wilburton on one occasion to' get groceries, accompanied by the children; the next time she came with Mr. Jones, Mr. Hancock and myself. It was about the first or second week in June.”

Each of the defendants denied they had lived as man and wife, or in open and notorious adultery.

The foregoing is the substance of the testimony introduced by the defendants. In rebuttal the state called Luin G-illispie, who said he was the mail carrier and passed back and forth by the house Mrs. Hill and the children lived in and had seen the defendant’s automobile there often. Then Margie- Nation was called, who testified to having taken a statement of some witnesses, the statement attempting to show the connection and relation between the defendants. At the close of the testimony the defendants “moved the court to instruct the jury to return a verdict of not guilty on behalf of the defendants, for the reason that all of the evidence on behalf of the state does not prove the crime charged in the information, or any crime against the statutes of Oklahoma.” Which motion was denied and exceptions duly saved.

The defendants have assigned eleven errors alleged to have been committed by the court in the trial of their case. The defendants, in presenting their argument have ably and at length set forth their views as to the law, and have drawn a distinction between adultery and open and notorious adultery. The first assignment discussed by the defendants is:

“The court erred in failing to sustain the objection of the defendants to the introduction of any evidence, and of any evidence other than in support of the allegation in the information of open and notoriously living together and for the reason that the information failed to charge an offense cognizant to the laws of Oklahoma and that the said information is duplicitous in that it seeks and does charge two separate offenses.”

The defendants say that in their opinion the information is duplicitous and charges two separate offenses, one of the offenses of ordinary adultery, and the other of open and notorious adultery.

Section 1837, O. S. 1931, defines “adultery” as follows :

“Adultery is the unlawful voluntary sexual intercourse of a married person with one of the opposite sex; and Avhen the crime is between persons, only one of whom is married, both are guilty of adultery. Prosecution for adultery can be commenced and carried on against either of the parties to the crime only by his or her own husband or wife as the case may be, or by the husband or wife of the other party to the crime; Provided, that any persons may make complaint when persons are living together in open and notorious adultery.”

This section of the statute has been passed upon by this court many times, and the court has repeatedly held that a prosecution for adultery other than open and notorious adultery cannot be carried on unless the injured spouse starts the prosecution. Lee v. State, 28 Okla. Cr. 397, 398, 231 Pac. 324; Copeland v. State, 10 Okla. Cr. 1, 133 Pac. 258; Shoemaker v. State, 12 Okla. Cr. 313, 155 Pac. 701.

The theory of the state in presenting its testimony is that the defendants were guilty of open and notorious adultery, and that the prosecution could be carried on without the spouse of either of the defendants starting the prosecution. It is clear from the record in this case that it was not intended by the state to prosecute the defendants for adultery, but the state tried them on the theory that they were living in open and notorious adultery, and secured a conviction.

The question, then, for this court to decide is: Is there sufficient evidence in the record to sustain a conviction for open and notorious adultery? This question is not a new one before this court, and has been passed on by the court many times. The state in its brief insists the testimony is sufficient to sustain a conviction of open and notorious adultery. The witness W. W. Briggs testified two or three parties spoke to him about the way the defendants were living; that he knew nothing about the facts. Neither of the parties named by the witness Briggs were called as a witness in the case. If they had complained, they, and they alone, would he the ones who could furnish testimony for the state as to the conduct of the defendants. The statements of the different parties to Briggs were nothing more than hearsay.

The state relies upon the case of Kitchens v. State, 10 Okla. Cr. 603, 140 Pac. 619, to sustain its position that the evidence is sufficient to sustain a judgment of conviction of the defendants for open and notorious adultery. If the facts in this case were the same or similar to the Kitchens Case, supra, then the contention of the state might be tenable, and the state would have some justification for arguing the testimony is sufficient to sustain a conviction.

In the Kitchens Case a number of parties testified that they had spoken to the defendant about the way he and Mollie Mitchell were living; that Kitchens brought Mrs. Mitchell to a writing, school one evening and the ladies present rebuked her, and the defendant did not come any more. A witness testified he had seen the defendant and Mollie Mitchell in the home alone, saw the defendant with his arms around her, saw her sitting on his lap; one evening saw Mrs. Mitchell with her arms around the defendant’s shoulders, and Kitchens was holding her clothes up exposing her person from her waist down. Several witnesses testified to having seen the defendant Kitchens and Mollie Mitchell in a compromising position, loving each other, and acting very improper and indecently.

In this case no such testimony has been introduced, not a witness testified to any improper relation between the defendant Mathis and defendant Hill. The only evidence introduced by the state is evidence showing the defendants had been seen at different times at the house where it is admitted the defendant Hill and her children resided. Not one word is in the record, showing, or tending to show, that any one had ever seen the defendants in a compromising position or attitude, or acting one toward the other in a way that would indicate they were living together or cohabiting as man and wife.

If the conviction in this case is sustained, it will be necessary that this court hold the fact that these defendants had been together at different places, and the defendant Mathis helped move Mrs. Hill to the house she rented from Mr. Hancock, and was there two or three days helping build a room to the house, and was going back and forth a time or two after that during the time Mrs. Hill was living in the house.

In Copeland v. State, 10 Okla. Cr. 1, 133 Pac. 258, this court defined “living in open and notorious adultery” as follows:

“To- constitute living together in open and notorious adultery the parties must reside together publicly, in the face of society, as if the conjugal relations existed between them, and their illicit intercouse must be habitual.”

In Barber et al. v. State, 15 Okla. Cr. 588, 179 Pac. 790, this court in the first paragraph of the syllabus said:

“To constitute diving in open and notorious adultery,’ under the statute, there must be something, more than occasional illicit intercourse indulged in; the parties must reside together publicly in the face of society, as if conjugal relations existed between them, and their so living must become generally known in the community in which they live.”

In Gill v. State, 32 Okla. Cr. 278, 240 Pac. 1073, 1075, in the body of the opinion the court states: The word “notorious” comes from the Latin word meaning “to know”, and it is defined in Webster, as generally known and talked of; well or widely known; forming a part of common knowledge; universally recognized. Further in the opinion the court stated:

“In order to prove the offense of open and notorious adultery so that a prosecution may be commenced and carried on by a person other than a spouse of one of the offending parties, there must be some evidence that it was known in the community that the claimed relation of husband and wife was false. When there is no such evidence, the proof does not show notoriety. There is a defect of proof of a notorious adultery between the parties, and it follows that no one but the wife of the defendant could commence and carry on the prosecution.”

Briefly, in Gill v. State, supra, the facts show that defendant was a married man employed as a brakeman for a railway company; was acquainted with Florence Darlymple, an unmarried woman working at Yici, where she was employed in the household of N. T. Eckhart; on three different occasions the defendants came to the premises of Eckhart when F. Darlymple introduced him to Eckhart and his wife as her husband, and on each occasion they occupied the same room in which there was one bed. The record discloses no one among the neighbors prior to the arrest of the defendant knew that Florence Darlymple was not married, or that their relation was adulterous.

The defendants have assigned other errors, but the view we take of this record, it is not necesary to extend this opinion to any greater length. The prosecution from its inception to the rendition of the judgments is for living in open and notorious adultery. This court is bound by the record before it to apply the law to the facts in the casé, and the conclusion is reached that the evidence wholly fails to support a conviction for living together in open and notorious adultery within the meaning of our statutes as construed in the cases herein cited.

For the reason that the judgments are not supported by evidence sufficient to establish the material ingredients of living together in open and notorious adultery, the same are reversed, and the case remanded for further proceedings consistent with this opinion.

EDWARDS, P. J., and DOYLE, J., concur.


author: PER CURIAM.

text:
    CARL TERRY v. STATE.
    No. A-9101.
    Sept. 25, 1936.
    (61 Pac. [2d] 582.)
    Ellis Y. Gregory, for plaintiff in error.
    S. T. Roberson, Co. Atty., and Lucius Babcock, Jr., Asst. Co. Atty., for the State.
   PER CURIAM.

Plaintiff in error, Carl Terry, was convicted in the county court of Canadian county of the offense of unlawful possession of intoxicating liquor, and was, by the judgment of the court entered January 27, 1936, sentenced to pay a fine of $100 and to confinement in the county jail for a period of 60 days. From this judgment an appeal was taken by filing in this court on April 3, 1936, petition in error with case-made attached.

.Subsequent to the submission of the cause on September 23, 1936, plaintiff in error filed his motion to dismiss his appeal, which, omitting title, reads:

“Motion to Dismiss
“Comes now Carl Terry, the plaintiff in error in tbe above entitled and numbered cause and moves this court to dismiss the above entitled and numbered cause forth■with.
“[Signed] Carl Terry.”

The Constitution and laws of this state give to every citizen convicted of crime in the courts of the state the right of appeal. When an appeal from a judgment of conviction in the trial court has been perfected and the cause submitted, unless good cause is shown to the contrary, this court has uniformly permitted the plaintiff in error to dismiss his appeal at his election. In the instant cause there is no reason made to appear why a dismissal should not be ordered in compliance with the motion of the plaintiff in error. It is therefore ordered and adjudged that the appeal herein be, and the same is, dismissed. Mandate forthwith.


text:
    ERNEST BROCKMAN v. STATE.
    No. A-9078.
    Sept. 28, 1936.
    (61 Pac. [2d] 273.)

      Amos T. Hall, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is prosecuted from a judgment of conviction pronounced and entered on the 30th day of September, 1935, in pursuance of the verdict of the jury finding the défendant guilty of the crime of attempt to commit, rape and assessing his punishment at confinement in the state penitentiary for a period of 15 years.

The charging part of the information is as follows:

“That Ernest Brockman, on the 15th day of November, 1934, A. 13., in Tulsa County, State of Oklahoma, and within the jurisdiction of this Court, did unlawfully, wil-fully and feloniously, attempt to have sexual intercourse and carnally know one Lena Gibson, a female person, and against the will of her, the said Lena Gibson, committed in way and manner as follows, that is to say by then and there taking hold of the said Lena Gibson, and then and there choking her and threatening to do her great bodily harm, and then and there struggling' and contending with her, the said Lena Gibson, with the unlawful and felonious intent then and there upon the part of said defendant to rape, ravish and carnally know and have sexual intercourse with her, the said Lena Gibson, and she, the said Lena Gibson not then and there the wife of him, the said Ernest Brockman, but then and there failed and was prevented and intercepted in the perpetration thereof, contrary to,” etc.

An examination of the record leads to the conclusion that the judgment of conviction should be reversed, and this without regard to the merits of the question of guilt or innocence of the defendant. To affirm the judgment would do violence to well settled and recognized rules of evidence and of practice in criminal prosecutions, and would be in violation of our conception of the rights of every individual charged with crime.

From the testimony it appears that at the time of the alleged commission of the crime the prosecutrix, a white woman and a widow, was living in Tulsa, on East Easton street, with her uncle, aunt, and cousin; that she was sleeping on a divan in the living room of her uncle’s borne and her uncle was sleeping in the next room. There was an open archway between. On the day alleged, between 5 and 6 o’clock in the morning, a colored man appeared in her room and assaulted her.

The prosecutrix testified that she was awakened by the lighting of a match and saw a man standing in the archway holding a lighted match in his hand. That she thought it was her cousin and said, “Walter, is that you?” The match went out, the man struck another one, and ■said, “You be still,” then walked over to the divan where she was, leaned down over her, put his hand on her forehead and said, “You be quiet, do you hear me,” and she said, “I will be quiet”; then he asked her “to give him a piece of pussy.” That she was scared and pushed him away and said, “You get out of here.” He put his hands on her throat and started choking her and she called her uncle three times before he answered. The defendant then turned her loose and ran out the door. That when he came to the bed she saw he was a colored man. She positively identified the defendant as the man who assaulted her.

Over, the objections of counsel for the defendant, the court permitted the second witness called by the state, Mrs. J. W. Krempush, to testify that the defendant entered her home on or about November 18th, between the hours of 3:30 and 5:30 in the morning, snapped the light out, put one hand on her mouth and one hand on her throat and told her to be quiet; about that time her baby started crying and he just turned loose and ran from the room. That several days afterwards she saw the defendant at the police station and identified him as the man that was in her room that morning.

Mrs. Charles F. Sewell, the next witness called, was over the defendant’s objection permitted to testify that on the morning of November 18, 1834', between 3 and 3:30 o’clock, a man appeared at the side of her bed, where her 20 year old daughter was sleeping beside her, with a knife in his hand. That he put the knife at her throat and said, “I want a piece of pussy.” About that time her daughter awakened and said, “What is it, mother?” Then he said, “You had better tell her to keep quiet or I will kill you both,” and she called her husband. When her husband answered, the man turned and ran out the door. That a few days after this occurrence the officers brought the defendant to her house and she immediately recognized his voice. That the defendant was the man that assaulted her in her room that morning.

F. M. Clore testified that he was Lena Cibson’s uncle by marriage. That on the date alleged she was staying at his place and was sleeping on the divan in the living room. That he heard some one scream two or three times before he was fully awake and he said, “What is going-on there?” Then somebody ran out the front door. That he asked her what was the matter and she said there was a man in the room. That it was then 5:15 in the morning.

At the close of the state’s evidence in chief a motion was made by the defendant for a directed verdict on the ground that the evidence was insufficient to warrant a conviction, which motion was overruled.

As a witness in his own behalf, the defendant, Brock-man, testified in part as follows: That he was born in South Carolina, 27 years old, married, and the father of two children; came to Spiro, Okla. in 1917, and moved to Tulsa in 1921; had been working for the Mayo Hotel since it opened until November 20, 1934. That he usually-left home around 5:30 in the morning to go to> the hotel and have everything ready to open up the coffee shop at 6 o’clock. That he was never in Mrs. Gibson’s room and never assaulted or attempted to rape her. That the morning of November 21st, on his way to the country club, he passed a car parked at the side of the street with the lights out; it was dark; some person jumped out of the car and told him to stop. That he thought that they were hi-jackers and ran, and they began to shoot at him. That they overtook him at Haskell and Elgin and arrested him. Then they carried him to Mrs. Gibson’s house, and asked her “if I was the person who attempted to rape her.” She said she did not know. Then they put out the light and had him get behind the curtains across the archway there and scratch matches for her to identify him. That they would turn the electric light off and on to see if she could identify him. Mr. Glore, her uncle, was there. They took him next to Phyllis Perez’s house, at 207 East Fairview, and asked her “if I was the man that committed a burglary there.” She said she did not know. Then they carried him to Mrs. Sewell’s house and told her that they had caught the negro' that attacked her. Mrs. Sewell told them she would like to feel his hands and see whether they were soft or not, because the person who attacked her had soft hands. That she examined his hands and said they were soft like the hands of the person whn attacked her. That, after they took him to1 the police station, they brought Mrs. Sewell into the room and she examined his hands again. When she went out, this officer here, Mr. Hughes, came in and said to him, “She has signed a statement proving your identity,” and asked him if he would confess to it, and he told him no, he would not.

Inez Brockman, wife of the defendant, testified that they had been married nine years, have two children, little girls, ages six and four; that her hnsband was working at the Mayo Hotel, and each morning left their home to go to his work about 5:3’0; that he was at home every night in November, including the night of November 15, 1934.

Several character witnesses qualified as knowing the general reputation of the defendant in the community in Avhich he lives for being a peaceable, law-abiding citizen, and each testified that his reputation was good.

Of the various errors assigned, we shall notice those only which on the new trial granted will be liable to again arise.

A number of alleged prejudicial errors are assigned upon exceptions taken to rulings of the court in the admission of evidence on the part of the state showing, or tending to show, that the defendant has been guilty of offenses other than the one charged in the information and the exclusion of evidence on the part of the defendant.

The record shows that the defendant moved the court for the reasons stated to strike and exclude the testimony of the witnesses Krempush and Sewell from the consideration of the jury.

In our opinion, for the reasons stated, the testimony given by these two witnesses was clearly incompetent, inadmissible, and prejudicial to the rights of the defendant.

The general rule is that, when a defendant is put upon trial for one offense, he is to he convicted, if at all, by evidence which shows that he is guilty of that offense alone.

This rule is tersely stated by Mr. Bishop, who says:

“The state cannot prove against a defendant any crime not alleged, either as foundation for a separate punishment, or as aiding the proofs that he is guilty of the one charged, even though he has put his character in issue.” 2 Bishop’s New Crim. Proc. § 1120.

In Koontz v. State, 10 Okla. Cr. 553, 139 Pac. 842, Ann. Cas. 1916A, 689, this court held:

“Evidence of an offense other than the one charged is admissible only when • it tends to. prove the offense charged. To be competent and admissible, it must have some logical connection with the offense charged.”

In Miller v. State, 13 Okla. Cr. 176, 163 Pac. 131, 133, L. R. A. 1917D, 383, it is said:

“Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish: (1) Motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial.” Wharton on Crim. Ev. (9th Ed.) § 48; Underhill on Ev. § 58; Smith v. State, 14 Okla. Cr. 348, 171 Pac. 341; State v. Rule, 11 Okla. Cr. 237, 144 Pac. 807; Vickers v. United States, 1 Okla. Cr. 452, 98 Pac. 467.

In the case of People v. Molineux, 168 N. Y. 264, 294, 61 N. E. 286, 293, 62 L. R. A. 193, the New York Court of Appeals say:

“This rule, so. universally recognized and so firmly established in all English-speaking, lands, is rooted in that jealous regard for the liberty of the individual which has distinguished our jurisprudence from all others, at least from the birth of Magna Charta. It is the product of that same humane and enlightened public spirit which, speaking through our common law, has decreed that every person charged with the commission of a crime shall be protected by the presumption of innocence until he has been proven guilty beyond a reasonable doubt. This rule, and the reasons upon which it rests, are so familiar to every student of our law that they need be referred to for no other purpose than to point out the exceptions thereto.”

It appears that in this connection the court instructed the jury:

“That evidence of other crimes of a precisely similar nature to that charged in the information in this case, and not connected with it are not admissible to prove the commission of the act involved in this specific charge, but they are given to you for the limited and specific purpose of aiding you in determining the quality of the act, and the legal character of the offense charged by illustrating the intent with which the act was committed.
“That evidence of the commission of other and similar acts is only to be considered for the purpose of showing the probability of the act charged but that such evidence in and of itself is insufficient to prove the charge contained in the information in this case; and unless you find from the evidence in this case beyond a reasonable doubt, exclusive of the evidence tending to show the commission of other crimes that the defendant committed the crime charged in the information in this case, then you shall not consider the evidence of other crimes for any purpose whatsoever.”

However, we do not think that the admission of the evidence in question to the defendant’s prejudice was, by any means, cured by giving the aforesaid instruction. Such evidence gives opportunity for the conviction of an accused person upon mere prejudice instead of by evidence showing the actual commission of the crime for which a defendant is on trial. It compels a defendant to meet separate and distinct charges of crime, which he might successfully refute if given the opportunity to do so, unembarrassed by other issues.

It is next contended that the conrt erred in not properly instructing the jury as to the law of the case.

The court instructed the jury that the defendant was charged with the offense defined by section 1822, St. 1931, which reads:

“Every person who attempts to cofmnit any crime, and in such attempt does any act toward the commission of such crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the punishment of such attempt, as follows.”

The defendant asked for an instruction submitting the issue of the included offense of assault and battery, which was refused and exception allowed, and the instructions given by the court did not submit the issue of the included offense of assault with intent to commit a felony as defined by section 1869, which reads:

“Every person who is guilty of an assault with intent to commit any felony, except an assault with intent to kill, the punishment for which assault is not otherwise prescribed in this code, is punishable by imprisonment in the state penitentiary not exceeding five years, or in a county jail not exceeding, one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.”

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 of an attempt to commit the offense. Section 3097.

Under the statute, the trial court should submit the case to the jury for consideration upon every degree of assault which the evidence in any reasonable view of it suggests, and the instructions given must be applicable to the testimony introduced on the trial.

In the case of Tayrien v. State, 33 Okla. Cr. 231, 242 Pac. 1061, 1063, it is said:

“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 Pac. 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 hands 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 couxd 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 Pac. 153; People v. Garner, 211 Mich. 44, 178 N. W. 75; Smith v. State, 150 Ark. 193, 233 S. W. 1081; State v. Williams, 185 N. C. 685, 116 S. E. 736, 738.”

In Rose v. State, 32 Okla. Cr. 294, 240 Pac. 754, 755, it is said:

“The prosecutrix being above the age of 18 years, a consideration of statutory rape is not necessary, for, if the defendant attempted to commit rape, it must be rape by force, under the fourth subdivision of section 1834, Comp. St. 1921 [section 2515, St. 1931], This section of the statute defines rape as an act of sexual intercourse accomplished with a female, not the wife of the perpetrator where she resists, but her resistance is overcome by force and violence. Then, in order to constitute the crime of attempt to commit a rape, it is essential that the state prove that the defendant attempted to accomplish an act of sexual intercourse with the prosecutrix by force and violence to overcome her resistance, and the doing of some act toward the commission of such crime, hut failed or was prevented or intercepted in the perpetration thereof. An attempt is defined in section 2297, Comp. St. 1921 [section 1822, St. 1931]. In order to- convict a defendant of an attempt to- commit rape upon a female above the age of 18 years, there must be proven a specific intent to use the force necessary to accomplish such purpose, notwithstanding the resistance of the female, and also some overt act. When the evidence proves no more than solicitation to have sexual intercourse and a technical assault while urging such solicitation, it is insufficient.”

The information to which no objection was interposed is sufficient to charge an attempt to commit rape as defined by the first, second, and third subdivisions of section 2515, but it does not allege an intent to accomplish an act of sexual intercourse by means of force and violence as defined by the fourth subdivision of said section. We think this is an essential allegation where the prosecutrix is not within the age of consent. An assault is a constituent element of the crime of an attempt to commit rape. Williams v. State, 10 Okla. Cr. 336, 136 Pac. 599; Wines v. State, 7 Okla. Cr. 450, 124 Pac. 466.

With this omission the information is sufficient to charge an assault with intent to commit the crime of rape as defined by the fourth subdivision of said section, and also the included offense of assault and battery.

Upon the record and consideration of all the evidence Ave are constrained to hold that the court erred in refusing and failing to submit the issues of assault with intent to commit rape and of assault and battery and in restricting the verdict to that of guilty or not guilty of an attempt to commit rape.

It is also insisted that the county attorney in his opening statement and the assistant county attorney in his closing argument to the jury made improper and prejudicial remarks, and that the court erred in overruling the defendant’s objections thereto.

It appearing that the objectionable remarks were largely in reference to the testimony hereinbefore held inadmissible and prejudicial, we deem it unnecessary to further discuss the same.

It is a matter of the greatest concern to care for and protect from violence and outrage the womanhood of our country. The protection of the mothers, wives, and daughters of our land, and the preservation of the sanctity and security of our homes, all depend upon the certainty and promptness with which cases of this character shall be visited with the just penalty of the law, and it is the duty of the courts and juries to give it effect. Vickers v. United States, supra.

However, the law of the land guarantees to every one accused of crime, regardless of race or color, whether of high or low degree, whether rich or poor, a fair and impartial trial, and, if that right has been infringed, not in respect to mere technicalities, but in disregard of substantial rights, however undesignedly, the judgment of conviction should be reversed and a new trial awarded.

Upon the record before us, it clearly appears that the case was tried and submitted to the jury upon an erroneous theory of the law, prejudicial to the substantial rights of the defendant.

For the reasons hereinbefore stated, the judgment of the district court of Tulsa county is reversed, and the cause remanded to that court for further proceedings not inconsistent with the views expressed in this opinion. The warden of the state penitentiary will surrender the defendant to the sheriff of Tulsa county, who will hold him in custody until he shall be discharged or as otherwise ordered according to law.

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


author: EDWAEDS, P. J.

text:
    HOMER HOFER v. STATE.
    No. A-9061.
    Oct. 2, 1936.
    (61 Pac. [2d] 268.)
    J. Will Culwell and J. S. Harris, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess Pullen, Asst. Atty. Gen., for the State.
   EDWAEDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in district court of Texas county of rape in the second degree and was sentenced to a term of 2 years in the state penitentiary.

At the time charged defendant was a married man, 21 years old. The prosecutrix was a high school girl aged 15, but a sophisticated young hussy. The evidence for the state is that defendant took prosecutrix in an automobile about a mile in the country and accomplished an act of sexual intercourse with her with her consent. Her testimony upon this point is:

“Q. What effort did you make to stop him? A. I tried to put my dress down but he insisted on it coming up; and I begged him not to, but he wouldn’t do it and so I just let him alone. * * * Q. And then when you. saw that you couldn’t keep him from it, you yielded, of course? A. No sir, I didn’t; after I found out he wouldn’t stop by my asking him I thought I would let him alone and see if he would quit, but after he had gone so far he wouldn’t quit.”

The testimony of defendant does not materially conflict with the testimony for the state except as to the fact of intercourse, which he denies. His testimony fully establishes a case of assault with intent to commit a rape in the second degree.

Upon this point he testified:

“Q. What did you do when you got out there, just tell the jury in your own words what you did that evening after yon came back from riding south of town? A. We drove out to Bozo’s place and I and Jewell got out and went into the house and lit the light. Gladys came into the door and fooled around a little while and then went back to the car. We talked there a little bit and I tried to have intercourse with her at that time, and she wouldn’t let me, so then we went back to the car and came back to town. * * * Q. Did you, or did you not, on or about the 7th day of August, 1935, or at any other time or place, have sexual intercourse with Jewell Capps? A. No sir, I did not.”

On cross-examination he testified:

“Q. Please tell me just what you actually did in trying? A. I asked her and she said ‘no,’ and then I tried other ways. Q. What other way? A. Force. Q. Did you take hold of her? A. I had taken hold of her, but not with any force; But I did use some force and she fought against it and I quit. * * * Q. Did you get on top of her? A. Yes, sir. Q. And attempted to have intercourse with her there at that time? A. Yes, sir. * * * Q. Then if she had not resisted you, and told you to quit, you would have bad intercourse with ber, wouldn’t you? A. If she consented, yes, sir. Q. That is all you lacked? A. Yes, sir.”

The court submitted to the jury the law applicable to the crime of rape in the second degree, and also the included offense of assault with intent to rape.

Several assignments of error are made and several are discussed in the briefs; the only one of sufficient importance to require discussion is the admitting of incompetent testimony. About 3' weeks after the occurrence, which forms the basis of the charge, the wife of defendant took prosecutrix to Boise City for a physical examination to determine if she was pregnant. Defendant was not with them, and there is no showing that he had any connection with or knowledge of such trip. Objection was made to this testimony. It was clearly incompetent. Cecil v. Territory, 16 Okla. 197, 82 Pac. 654, 8 Ann. Cas. 457; Bruner v. U. S., 1 Okla. Cr. 205, 98 Pac. 597. Except for the fact that defendant admits his guilt of the included crime of assault with intent to rape, it would be more serious. Under all the circumstances, no honest jury could fail to find defendant guilty either of rape in the second degree or of assault with intent. A female of the age of 15 is incapable of giving consent to an act of sexual intercourse. The law intends the adult male shall keep his hands off a female of such tender years, and, if he has intercourse with her, he does so at his peril. A reduction of the punishment assessed from a term of two years in the penitentiary to a term of one year fully cures. this error.

The judgment is so modified, and as modified, is affirmed.

DAVENPORT and DOYLE, JJ., concur.