text:
    TOM HERNDON v. STATE.
    No. A-3056.
    Opinion Filed November 16, 1918.
    (175 Pac. 842.)
    ABATEMENT OF PROSECUTION — Death of Accused ’ In a criminal prosecution, the purpose of the proceeding being 'to punish the defendant in person, the action must necessarily abate upon liis death; and where it is made to appear to the court that a plaintiff in error has died, pending the determination of ids appeal, the cause will 1)0 abated.

      Appeal from District Court, Pittsburg County; R. W. Higgins, Judge.

    Tom Herndon was convicted of robbery, and he appeals.
    Prosecution abated.

      Preslie B. Cole, for plaintiff in error.
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Tom Herndon, was convicted of robbery, and in accordance with the verdict of the jury on the 13th day of February, 1917, was sentenced to be imprisoned in the penitentiary at Mc-Alester for the term of ten years. An appeal by case-made was perfected as that of a poor person, and he was committed to the penitentiary pending the determination of the appeal.

The Attorney General has filed a motion to abate, supported by the affidavits of Sam L. Morley, warden of the penitentiary, and E. M. Fry, as proof of the death of the plaintiff in error.

In a criminal prosecution, the purpose of' the proceeding being to punish the defendant in person, the action must necessarily abate upon his death. It is therefore adjudged and ordered that all proceedings in this prosecution be abated by reason of the death of the plaintiff in error, Tom Herndon, and the district court of Pittsburg county is directed to enter its appropriate order to that effect.

ARMSTRONG and MATSON, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ARCH BROWN v. STATE.
    No. A-3006.
    Opinion Filed November 10, 1918.
    (175 Pac. 842.)
    APPEAL AND ERROR — Failure to Prosecute Appeal — Affirmance. Where appeal from conviction had been pending since May 14, 1917, and cause was submitted On November 12. 1918. Attorney (reneral's motion to affirm for failure to prosecute would lie granted, where an examination of record, in the absence of defendant’s brief or appearance for oral argument, convinced court that appeal was without merit.

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

    Arch Brown was convicted of the crime of selling intoxicating liquors, and he appeals.
    Affirmed.

      R. B. F. Hummer and John Caruthers, for plaintiff in error.

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

Arch Brown was convicted in the county court of Okmulgee county of the crime of selling intoxicating liquor, and his punishment fixed at a fine of $50 and imprisonment for 30 days, and he prosecutes an appeal to this court. -

This appeal has been pending since the 14th day of May, 1917, and the cause was submitted on the 12th day of November, 1918, on motion by the Attorney General to affirm the judgment for failure to prosecute the appeal. No brief has been filed in behalf of the plaintiff in error, nor was any appearance made for oral argument at the time the cause was submitted.

An examination of the record convinces the court that this appeal is without merit. Three reputable witnesses testified positively to the alleged sale of whisky by the plaintiff in error, and no defense was interposed in his behalf. The jury assessed the punishment at the minimum under the statute, and the plaintiff in error, under the testimony, deserved more drastic punishment.

The motion of the Attorney General to affirm the judgment is sustained. It is ordered that the judgment be affirmed. Mandate to issue forthwith.


text:
    V. T. TITTLE et al. v. STATE.
    No. A-3020.
    Opinion Filed November 16, 1918.
    (175 Pac. 841.)
    APPEAL AND ERROR — Affirmance—Failure to Prosecute. Where an appeal has been pending since May 28. 1917. and cause was submitted Nov. 13. 1918. and no brief was filed for plaintiff in error, and examination of record shows no reversible error, Attorney General’s motion to affirm conviction for failure to prosecute will be sustained.

      Appeal from County Court, Wagoner County; J. C. Pinson, Judge.

      V. T. Tittle and Newton Fields were convicted for unlawful possession of intoxicating liquors, and they appeal.
    Judgment affirmed.

      W. W. Momyer, for plaintiffs • in error.

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

Plaintiffs in error, Tittle and Fields, were jointly tried and convicted in the county court of Wagoner county of the crime of unlawful possession of intoxicating liquors, and punishment fixed at a fine of $200 and 60 days’ imprisonment against Tittle, and a fine of $50 and 30 days’ imprisonment against Fields.

The appeal -has been pending in this court since the 28th day of May, 1917.

The cause was submitted November 13, 1918, on motion of the Attorney General to affirm the judgment for failure to diligently prosecute the appeal. No brief has been filed in behalf of either plaintiff in error.

An examination of the record discloses no error sufficient to authorize the reversal of the judgments. The motion of the Attorney General to affirm the convictions for failure to prosecute the appeal is sustained,- and the judgment against each defendant is affirmed.

Mandates forthwith.


text:
    OTTO CHILDERS v. STATE.
    No. A-3029.
    Opinion Filed November 16, 1918.
    (175 Pac. 842.)
    INTOXICATING LIQUORS — Unlawful Sale —Evidence. Evidence held to sustain a conviction for the unlawful sale of intoxicating liquor.

      Appeal from County Court, Pushmataha County; A. W. Risen, Judge.

    Otto Childers was convicted of a violation of the prohibition law, and he appeals.
    Affirmed.

      Welch & Welch, for plaintiff in error.
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Otto Childers, was tried and convicted in the county court of Pushmataha county on an information charging that he did sell, barter, and otherwise furnish to H. G. Williams and Houston Simpson whisky, and his punishment assessed at a fine of $50 and imprisonment in the county jail for 30 days. From the judgment rendered in pursuance of the verdict, he appeals.

The evidence shows the sale of the whisky as alleged in the information and the payment of the sum of 50 cents. As a witness in his own behalf the defendant admits the delivery of the whisky, but denies that he received any pay for the same. From a careful examination of the record, we find the evidence sufficient to sustain the verdict, and no material error was committed upon the trial.

The judgment is therefore affirmed.


text:
    HALE ARMSTRONG v. STATE.
    No. A-3036.
    Opinion Filed November 16, 1918.
    (175 Pac. 843.)
    ■ABATEMENT OF PROSECUTION — Death. Whore the death of. appellant is suggested by his counsel of record, it will be ordered that all proceedings in prosecution abate, and the trial court will be directed to enter its appropriate order.

      Appeal from County Court, Seminole County; D. G. Hart, Judge.

    Hale Armstrong was convicted of an unlawful sale of intoxicating liquor, and he appeals on á case-made.
    Proceedings ordered abated, and county court directed to enter its appropriate order to that effect.

      G. M. Snyder and W. Robert Burns, -for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Hale Armstrong, was convicted in the county court of Seminole county on a charge that he did sell to one Kennedy Wise one quart of intoxicating liquor, and by the judgment of the court was sentenced to be confined in the county jail for 60 days and to pay a fine of $100. From the judgment an appeal was perfected, by filing in this court on June 7, 1917, a petition in error with case-made.

The death of plaintiff in error has been suggested by his counsel of record. It is therefore adjudged and ordered that all proceedings in this prosecution be abated by reason of the death of the plaintiff in error, and the county court of Seminole county is directed to enter its appropriate order to that effect.


author: ARMSTRONG, J.

text:
    DAVE SLATE v. STATE.
    No. A-2991.
    Opinion Filed November 19, 1918.
    (175 Pac. 843.)
    HOMICIDE — Instruction—Durden of Proof — Self-Defense. Instruction that, -if jury found beyond a reasonable doubt that, when defendant killed deceased, the deceased was attempting to assault defendant, so as to endanger his life or do him great bodily harm, or if such danger then reasonably appeared to defendant, and he then killed deceased, it was in self-defense, and defendant should be acquitted, was erroneous, as putting burden of proof on defendant.

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

    Dave Slate was convicted of manslaughter in the first degree, his motion for new trial was overruled, and he appeals.
    Reversed.

      J. B. Champion and S. A. George, for plaintiff in error.

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

The plaintiff in error, Dave Slate, hereinafter referred to as defendant, was informed against for the murder of R. R. Roland. The jury found him guilty of manslaughter in the first degree and fixed his punishment at imprisonment in the penitentiary for six years. Defendant’s motion for a new trial having been overruled, and sentence imposed upon him, he brings the judgment here for review.

The uncontradicted evidence in the case shows that deceased and defendant had known each other for many years, and deceased and defendant were cultivating adjoining lands and lived near each other, and that in going to the field being cultivated by defendant 1¡he defendant went through the yard of the deceased; that on the day previous to the homicide, in the field in which deceased and defendant were working a difficulty arose between them, in which much abusive and insulting language was used; and that on the evening preceding the homicide, and subsequent to the difficulty in the field, the defendant went to the house of the deceased and got a plow, which he had previously sold the deceased; that on the morning of the homicide, succeeding the evening of the difficulty in the field, defendant went to the yard of the deceased, and there quarreling between the - deceased and defendant was renewed, and divers threats made; that the deceased called for a gun, which was handed him by his daughter, and defendant ran off, and the deceased fired the gun, but the evidence is in conflict as to whether or not deceased fired the gun at or in the direction the defendant was going; and that, several hours after deceased fired the gun, deceased was instantly killed by a gunshot wound inflicted by the defendant.

The evidence further shows that there was. no eyewitness to the tragedy, other than the defendant. The defendant testified that, when the deceased got his gun at deceased’s home the morning of the day. of the killing, defendant ran away through the bushes, and that the deceased “took deliberate aim and cracked down on him, and defendant heard the bullets going through the brush”; that deceased had threatened defendant’s life, and that defendant knew deceased’s reputation, and that it was that he was a turbulent and quarrelsome man; that defendant went home and picked up his gun to protect himself, and went to Mr. Goodman’s, who resided near, and whom he wanted to see about getting through Goodman’s fence, so defendant could get to his crop, so as not to go by deceased’s, and at that time he did not know that deceased had gone to Pool-ville; that he saw somebody coming down the road, but did not know it was deceased; that deceased overtook him, and when deceased got up to defendant he told defendant to stop, saying, “You dirty son of a bitch, you ain’t got nerve enough to shoot;” then deceased ran his hands into his hip pocket and defendant shot; that, at the time deceased was coming over towards him, defendant did not know but what he had 40 guns, and defendant believed deceased intended to kill him.

The uncontradicted evidence is that the deceased was a much larger man than the defendant, and that an examination of the body of deceased immediately after his death disclosed that deceased had no deadly weapon upon his person, but a knife was found lying near his hand. There was evidence that, after the killing, defendant had made statements as to how the killing occurred that were contradictory to the circumstances surrounding the killing, as testified by defendant; said contradictory evidence tending to show that defendant had stated “that the deceased threw up his hands and begged defendant not to shoot him,” and the defendant denied having made such contradictory statements. There was further uncontradicted evidence that defendant was a peaceable and law-abiding man, and that deceased was a “quarrelsome, fussy man.”.

■ There is much other evidence in the case, which we deem unnecessary to recite, as the foregoing evidence is all that is necessary for an intelligent review of the case.

Among other instructions, the court gave the following:

“(13) If you find beyond a reasonable doubt that, at the time the defendant shot and killed the deceased, the deceased was attempting to assault the defendant in such way and manner as to endanger the life of defendant or do him bodily harm, or if from all the facts and. circumstances of the case you find it was reasonably apparent to the defendant at the time of said assault that he' was about to be assaulted by deceased in such way and manner as that his life was in danger, or that great bodily harm was about to be done him by the deceased, under these circumstances the defendant shot and killed the deceased, then you are instructed that he did so in his own self-defense, and if you so find beyond a reasonable doubt, you will acquit him, and say by your verdict ‘Not guilty.’ ”

To the giving of said instruction the defendant duly excepted.

There are various assignments of error, but, as the view we take of said instruction will necessitate reversal of the case, we deem it unnecessary to consider any error assigned, other than that in giving the said instruction. The said instruction puts the burden of proof upon the defendant, and the court committed reversible error in giving such instruction. In Havill v. State, 11 Okla. Cr. 483, 148 Pac. 1183, it is held:

First. “In the trial of a criminal case the burden is never upon the accused to establish any issue beyond a reasonable doubt. In certain cases he may be required to furnish sufficient evidence to raise a reasonable doubt, unless the proof on the part of the state raises such reasonable doubt; but more, is never required of him.”

Second. “If, in the course of the trial, the court submits to the jury an instruction which has the effect of requiring the accused to establish his innocence or any other material fact beyond a reasonable doubt, and a conviction is had, a reversal will follow an appeal.”

In Blythe v. State, 12 Okla. Cr. 23, 151 Pac. 488, Judge Doyle, speaking for the court, says:

“The defendant was entitled to have his case submitted to the jury on instructions fairly applicable to the evidence, including a correct statement of the defendant’s right of self-defense under the particular circumstances disclosed by the evidence.”

In Carter v. State, 12 Okla. Cr. 164, 152 Pac. 1132, it is held:

“Instructions which tend to shift the burden of proof, by requiring the defendant to establish his defense by a preponderance of the evidence, should not be given in any criminal case.”

In McIntosh v. State, 8 Okla. Cr. 469, 128 Pac. 735, it is held:

“Where the evidence reasonably presents that issue in a murder case, it is the right of the defendant to have a clear, affirmative, and clean-cut instruction upon the law o.f self-defense.”

In Henry Johnson v. State, 5 Okla. Cr. 14, 113 Pac. 552, the following instruction was before the court for review :

“You are instructed that a person has a right to fight in his necessary self-defense, and to take the life of his assailant if he believes in good faith that it is necessary for him to do so, in order to prevent great bodily harm or death at the hands of his assailant; but in such case it must appear to the defendant, viewing the situation from his standpoint at the time, that the danger was so imminent and pressing that it was necessary for him to act in order to prevent receiving great bodily harm, or death, at the hands of his assailant.”

In commenting on the above instruction, the late lamented Judge Furman says:

“An exception to this instruction was properly reserved at the time it was given. This instruction should have gone further, and informed the jury that, if the evidence on this point was such as to raise in their minds a reasonable doubt as to whether or not the defendant * * * acted in good faith, and upon reasonable appearances of danger of then receiving great bodily harm or death at the hands of his assailant, then the jury should resolve that doubt in favor of the defendant, and acquit him.”

In Joe McClatchey v. State, 12 Okla. Cr. 173, 152 Pac. 1136, it is held:

“The burden does not rest upon the defendant to establish, even to a reasonable probability, the truth of an affirmative defense; if, upon the evidence both for the state and the defendant, a reasonable doubt is created as to the guilt of the defendant, he is entitled to the benefit of it, and where the crime charged is distinguished into degrees the defendant is entitled to the benefit of that doubt, as well with respect to the degree of the crime as to every essential element of that degree, and in these respects the burden never shifts from the state to the defendant.”

In the body of the opinion it is said:

“That the rule is well settled that the burden does not rest upon the defendant to establish even to a reasonable probability the truth of an affirmative defense.”

Certainly instruction No. 13 is not in accord with the foregoing authorities, as it places the burden of the evidence wrongfully upon the defendant.

Again, we think that the state might have properly directly, as it has done indirectly, confessed error in this case, as it says in its brief:

“We are going to admit right here that in the charge of the court, section 13, that the court did put the burden on the defendant.”

Reversed.

DOYLE, P. J., and MATSON, J., concur.


text:
    BELLE VENTERS v. STATE.
    No. A-3068.
    Opinion Filed November 20, 1918.
    (175 Pac. 843.).
    APPEAL AND ERROR — Voluntary Dismissal. Where one perfecting an appeal from a conviction, when the case was called for final submission, moved that it be dismissed, its dismissal would be ordered and the cause remanded.

      Appeal from County Court, Pittsburg County; S. F. Brown, Judge.

    Belle Venters was convicted of a violation of the prohibition law, and she appeals.
    Appeal dismissed.

      W. N. Redioine, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Belle Venters, was indicted in the district court of Pittsburg county for selling one pint of whisky to one Antifee Clark, which' indictment was duly transferred to the county court of said county, and upon her trial she was convicted and the court sentenced her to pay a fine of $50 and be confined in the county jail for 30 days.

To reverse the judgment an appeal was perfected by filing in this court on July 7, 1917, petition in error with case-made.

When the case was called for final submission, counsel for plaintiff in error moved that the appeal be dismissed.

It is therefore ordered that the appeal herein be dismissed and the cause remanded to the trial court.


text:
    JOE DUCA v. STATE.
    No. A-3067.
    Opinion Filed November 23, 1918.
    (175 Pac. 943.)
    APPEAL AND ERROR — insufficiency of Evidence — Reversal. Where there was no proof of the corpus delicti in a prosecution for unlawful possession of intoxicating liquor, and conviction could only be surmised as resulting from passion or prejudice, and consideration of incompetent and hearsay testimony, improperly admitted, judgment will be reversed, with direction to dismiss prosecution.

      Appeal from. County Court, Pittsburg County; S. F. Brown, Judge.

    Joe Duca was convicted in the county court of Pitts-burg county of the crime of unlawful possession of intoxicating liquors, and he appeals.
    Reversed, with directions to dismiss prosecution.

      W. N. Redwine, for plaintiff in error.

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

This is an appeal from the county court of Pittsburg county, wherein the defendant, Joe Duca, was convicted.of the unlawful possession of intoxicating liquors, and sentenced to pay a fine of $100 and serve 60 days in jail.

Numerous assignments of error are relied upon to reverse this judgment, but it is only necessary to consider one, viz., that the court erred in refusing the defendant’s motion to direct the jury to return a verdict of not guilty, because there was no evidence to support the allegations of the information.

The motion to direct the verdict in this case should have been sustained. An examination of the transcript of the evidence discloses that there is not a scintilla of competent evidence to prove that the defendant at any time had possession of intoxicating liquors with intent to sell the same. It is impossible to conceive how a jury could have arrived at a verdict of guilty in this case. It may be surmised, however, that the verdict was the result of passion and prejudice, coupled with the consideration of incompetent and hearsay testimony, improperly admitted over the objection and exception of the defendant.

There is an entire absence of proof of the corpus delicti. The judgment is reversed, with directions to dismiss the prosecution.


author: PER 'CURIAM.

text:
    J. M. HARRIS et al. v. STATE.
    No. A-3115.
    Opinion Filed November 23, 1918.
    (175 Pac. 942.)
    INTOXICATING LIQUORS — Unlawful Possession — Evidence—Intent. In this case 'the court determines as a matter of law that the evidence as detailed in the opinion is insufficient to sustain tile convictions.

      Appeal from County Court, Tulsa County; H. L. Standeven, Judge.

    J. M. Harris and Carl Burton were convicted of a violation of the prohibitory law, and they appeal.
    Reversed.

      Ed Crossland, for plaintiffs in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER 'CURIAM.

The information in this case filed in the county court on the 7th day of February, 1917, charges that on the 16th day of October, 1916, in Tulsa county, J. M. Harris, Carl Burton, and C. D. Allmond did unlawfully have in their possession three one-half pints of whisky with the intent then and there on the part of the defendants and each of them to sell the same. It appears, that the defendant Allmond was not arrested. Upon the trial of the defendants Harris and Burton, they were convicted. From the judgments rendered on the verdicts, they appeal.

The principal errors assigned are, in effect, that the verdicts are not supported by sufficient evidence, and that the court erred in admitting incompetent evidence.

The testimony of H. H. Townsend, assistant chief of police of Tulsa, is as follows:

“Q. Do you know the defendants, Mr. Townsend. A. Yes, sir. Q. Acquainted with them on the 16th day of October, 1916? A. Yes, sir. Q. Do you know where the Quality Drug Store was ? A. 1513 West Second. Q. Do you know who ran that place. A. J. M. Harris.— Mr. Crossland: Object to that as a conclusion of the witness. The Court: Overruled. Mr. Crossland: Exception. Q. In what capacity was Carl Burton working in there, if you know? A. Clerk. Q. Did you. see the defendants, J. M. Harris and Carl Burton, on the 16th day of October, 1916? A. Yes, sir. Q. That is, in Tulsa? A. Yes, sir. Q. That place? A. Yes, sir. Q. Now did you see anybody go into that place on that date? A. Yes, sir. Q. State who it was, and where he entered. A. Hasty messenger 'boy by the name of C. D. Allmond entered the front door. Q. C. D. Allmond; that is the other defendant in this case? A. Yes. Q. What did you do when C. D. Allmond went in? A. I followed him in, a little ways behind him. Q. Where did he go when he went in there? A. Went back to the rear end of the front room. Q. In front of the prescription counter? A. Yes, sir. Q. And what was handed him, if anything? A. Carl Burton handed him a small package. Q. What did he do with the package Carl Burton handed him? A. Put it in his messenger bag. Q. What did you do then? A. Took it out and found it to be three half pints of whisky.”

His cross-examination was, in part, as follows:

“Mr. Crossland: Q. You say this happened last October, on the 16th? A. Yes, sir. Q. And this information was not filed until February 7, 1917? A. That-speaks for itself; I think that is the date. Q. It is a fact? A. If that is the date; yes, sir. Q. At the time you filed this information, I will ask whether you swore to a great many others; signed your name as prosecuting witness? A. I did. Q, Do you remember how many? A. I do not.”

In our opinion there is not sufficient competent evidence to sustain the verdicts. There is no testimony to show intent to sell, and for this reason the court should have sustained a motion to direct a verdict of acquittal.

The judgments appealed from are therefore reversed.


author: DOYLE, P. J.

text:
    R. D. FLETCHER v. STATE.
    No. A-3126.
    Opinion Filed November 23. 1918.
    (175 Pac. 941.)
    INTOXICATING LIQUORS — Unlawful Transportation — Evidence. In a prosecution for unlawfully conveying intoxicating liquors, the evidence examined, and held sufficient to sustain the conviction. and that no material error was committed on the trial.

      Appeal from County Court, Grady County; R. E. Davenport, Judge.

    R. D. Fletcher was convicted of a violation of the prohibition law, and he appeals.
    Affirmed.

      John H. Venable, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, R. D. Fletcher, was convicted in the county court of Grady county on an information charging that he did unlawfully transport and convey four quarts of whisky from Charley Cloud’s residence, 14 miles northeast of Chickasha, in Grady county, to the- city of Chickasha, and in accordance with the verdict Of the jury he was sentenced to confinement in the county jail for 60 days and to pay a fine of $100 and the costs. From the judgment he appealed, by filing in this court on August 29, 1917, .a petition in error, with case-made.

The evidence of the state supports the allegations of the information and is undisputed. The instructions given by the court were not excepted to. Upon a careful examination of the record, ohr conclusion is that the appeal in this case is wholly destitute of merit.

The judgment appealed from is therefore affirmed. Mandate forthwith.

ARMSTRONG and MATSON, JJ., concur.


text:
    R. L. COTTON v. STATE.
    No. A-3061.
    Opinion Filed November 23, 1918.
    (175 Pac. 942.)
    DISORDERLY HOUSE — Offense—Sufficiency of Evidence. Evidence, in a prosecution for conducting and maintaining a disorderly house, held sufficient to sustain a conviction.

      Appeal from, County Court, Okmulgee County; Dudley C. Monk, Judge.

    R. L. Cotton was convicted of the crime of conducting a disorderly house, and he appeals.
    Affirmed.

      E. M. Carter, for plaintiff in error.
    S'. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

R. L. Cotton was convicted in the county court of Okmulgee county of unlawfully and willfully conducting and maintaining a disorderly house, and his punishment fixed at a fine of $500. From this judgment of conviction he has appealed to this court and asks a reversal on the sole ground that the evidence is insufficient to sustain the conviction.

The court has carefully considered the briefs, both for the plaintiff in error and for the state, and has read the entire transcript of the evidence. There is some conflict in the evidence, but in substance, the state proved that the defendant, a negro man, was operating a rooming house on the outskirts of the city of Okmulgee. He lived in this house with a woman who was not his wife, and on a certain Sunday afternoon in March, 1917, the sheriff of Okmulgee county, together with the chief of police of the city of Okmulgee, and other officers, made a visit to the premises occupied and maintained by this defendant. When they approached the premises, five or six white men were seen to run out of the back door and escape. Inside the house were found two white men and two white women, apparently somewhat intoxicated and dancing to music played on a piano by the defendant. There were several bedrooms in the house, and in one bed was found a man very drunk. Quite an amount of intoxicating liquor was found upon the premises, and the persons assembled there were acting in a noisy and dissolute manner. One of the white women was recognized as a prostitute. The other white woman was a stranger to the officers.

The negro woman who was living with the defendant testified that she was not lawfully married to the defendant and that they were keeping a rooming house at said premises. The evidence is undisputed that the house bore the general reputation in that community of being a house of assignation and ill fame.

The defendant testified in his own behalf that he was operating the premises and worked in the daytime and had no knowledge that the house was, conducted as a house of prostitution and that he had never seen any lewd or lascivious conduct at said place.

It is apparent that persons of dissolute character were permitted to congregate at this place, that on this particular Sunday afternoon the parties there assembled were conducting themselves in a lewd and lascivious manner, and that the place itself was one of ill repute. This evidence was sufficient to sustain conviction, and whatever conflict there was was decided by the jury adversely to the contentions of the defendant, and this court will not disturb the verdict.

The judgment is affirmed.


text:
    BILLY KLIENSMITH v. STATE.
    No. A-3092.
    Opinion Filed November 23, 1918.

      (175 Pac. 943.)
    APPEAL AND ERROR — Review—Sufficiency of EvidOiee. This court will not reverse a judgment of tlio trial court for lack of evidence, where (here is evidence in the record reasonably tending to sustain the judgment.

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

    Billy Kliensmith was convicted of conducting a gambling game, and he appeals.
    Affirmed.

      R. F. Turner, for plaintiff in error.
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Billy Klien-smith, was convicted in'the district court of Carter county on an information charging that in said county on or about the 10th day of November, 1916, he did then and there unlawfully, willfully, and feloniously open, conduct, and carry on, in the town of Dundee, certain banking and percentage games, played with dice, cards, and other devices for money, checks, and other representatives of value, and his punishment was fixed at imprisonment in the penitentiary for the term of one year and a fine of $500. From the judgment rendered in pursuance of the verdict, an appeal was perfected by filing in this court on July 14, 1917, a petition in error with case-made. No brief has been filed, and when the case was called for final submission no appearance was made for plaintiff in error. It was thereupon submitted on the record.

Upon a careful examination of the same, we find that the evidence on the part of the state sufficiently supports the allegations of the information. No objection was made or exception taken to the charge of the court. An examination of the same discloses that it fully and fairly states the law of the case.

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

ARMSTRONG and MATSON, JJ., concur.


author: MATSON, J.

text:
    BUD FOSTER v. STATE.
    No. A-2430.
    Opinion Filed November 23, 1918.
    (175 Pac. 944.)
    FALSE PRETENSES — Information—Evidence—Variance. Where tlie information for false pretenses alleges that the accused obtained money and a credit for money at a certain bank by means of a certain false pretense, and the proof on the part of the state discloses that the accused obtained neither money nor a credit for money at said time, it is held that the evidence does not sustain the allegations of the information and the judgment, of conviction must. be reversed.

      Appeal from District Court, Cotton County; J. T. Johnson, Judge.

      Bud Foster was convicted of the crime of false pretenses and sentenced to be imprisoned in the state penitentiary at McAlester for a period of six months, and he appeals.
    Reversed and cause remanded.

      R. H. Galyen, for plaintiff in error.

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

Bud Foster was convicted in the district court of Cotton county of the crime of false pretenses, and prosecutes an appeal to this court from such judgment of conviction, and among other assignments of error contends that the trial court erred in not sustaining his demurrer to the state’s evidence and directing a verdict of not guilty, in that there is no competent evidence to sustain the allegations of the information. With this contention this court is compelled to agree, although the record discloses conduct on the part of the plaintiff in error- which merits, not only condemnation, but punishment as well.

The charging part of the information is as follows:

“That at and within said county and state, on the 24th day of December, 1912, Bud Foster then and there being, did then and there, willfully, unlawfully, designedly and fraudulently. and feloniously, obtain from the First National Bank of Walters, Okla. (a corporation), the sum of $207.10, in good and lawful money of the United States, by then and there falsely, designedly, fraudulently and feloniously representing to it the said First National Bank of Walters, Okla., that he, the said Bud Foster, was then and there the owner of four red cows, four to seven years old and of the value of $150, one red heifer two years old of the value of $30, one red heifer calf, two red bull calves, one brown mare seven years old, named Daisy, value $100, one brown mare eight years old, named Dolly, value $125, one sorrel horse, three years old, named Dan, value $125, on all of which above-described property he, the said Bud Foster, then and there gave to the said First National Bank of Walters, Okla., a chattel mortgage in writing, to secure the payment of the said $207.10, so as aforesaid obtained from it, the said First National Bank by him, the said Bud Foster, when in truth and in fact he, the said Bud Foster, was not the owner of any of 'the above-described, four red cows, one red heifer calf, two red bull calves, one brown mare, seven years old, named Daisy, one brown mare, eight years old, named Dolly, or' one sorrel horse, three years old, named Dan, as he, the said Bud Foster, then and.there well knew. That it, the said First National Bank of Walters, Okla., acting by and through its president, George W. Graham, relying upon th'e representations of him, the said Biid, Foster, that he was the owner of the above-described property and believing said representations to be true, was induced to and did loan and advance credit to him, the said Bud Foster, in the sum of $207.10 aforesaid, and did take the security on the above-described property aforesaid, for the payment of the said $207.10, which said representation, on the part of him, the said Bud Foster, were then and there made with the intent to cheat, wrong and defraud the said First National Bank of Walters, Okla., out of said sum of $207.10 and interest thereon aforesaid, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state.”

In support of the allegations of the foregoing information, the state introduced several witnesses, but it is only necessary to consider the evidence given by Mr. George W. Graham, who was president of the First National Bank of Walters, Okla., and with whom the defendant dealt at the time it is alleged the offense was committed. It appears from the record that the defendant had, on occasions prior to the one forming the basis of this prosecution, several transactions with the First National Bank of Walters, acting through its president, Mr. Graham, in which sums of money were loaned to the defendant and certain securities in the form of chattel mortgages were given by him.

From time to time payments were made by the defendant on these loans, both of interest and principal, until the various transactions culminated in his giving a note for $207.10 to said bank secured by chattel mortgage on certain personal property, which afterwards turned out not to be his. At the time this note for $207.10 was given, the defendant secured neither money nor credit for money at said bank. This fact is admitted by the president of the bank in his cross-examination, and the defendant contends, therefore,- that the information having charged that he obtained either money or credit for money, or both money and credit for money, the failure to prove that he procured either as alleged in the information is fatal to the prosecution, in that it wholly fails by competent evidence to sustain the conviction.

We quote as follows from the cross-examination of the witness Graham:

“Q. I say the credit of $35, $25, or $35, you say it might have been that much; but when you took the credit off of this note and when you added the interest to it, and then deducted the amount that was paid, that that was due and owing on this note left the balance for which you took this note and mortgage of $207.10? A. That is about correct. Q. And you did not at that time advance Mr. Foster as much as a copper cent? A. I don’t know whether I did or not. Q. Do you know whether you did or not? A. No, sir; I said I didn’t know. Q. Will you say that you did ? A. I will not say that I did not. Q. But you now say you delivered Mr. Foster this old note of a -year before of $216.25 and took this note with the mortgage for $207.10? A. Yes, sir.
iji ;|i ijr %t i'fi :jc :¡: í¡í #
“Q. The only object you had in view, Mr. Graham, in taking this note, this new note and this new mortgage, was to give to Mr. Foster the amount of credit that he was entitled to have on this note, and then to take past-due paper up and bring it into paper that the banks consider live, and you just took this additional security for the giving of this note? Isn’t that a fact? A. There was nothing said about credit at all. We took that in payment for.money he owed us. Q. That is true, before that time, before you took this note? A. That is what I took that particular note for, for money he owed us and past due. Q. He owed this money before you took this note? A. Yes, sir; he would have to owe it before we took it. Q. Then it was — the taking of this note was just simply additional security ? A. It was not additional security; it was security in itself for the money he owed us past due. Q. And this note represented that amount? A. Yes, sir. Q. And so you transferred it from this note into this note and handed Bud Foster this note,for the reason he had given a new note, and that is all you gave Bud Foster, was this note, wasn’t it? A. Gave him that because I considered it paid, taking that in payment. Q. And that is all you gave Bud Foster on December 24, 1912, wasn’t it, at the time this note and mortgage was executed? A. I presume it was. Q. That’s all.”

It is apparent from the cross-examination of the prosecuting witness that the transaction upon which this prosecution is based was the renewal of a note given to the bank for a sum of money which the defendant had obtained from said bank some two or three years previous to the transaction upon which this prosecution is based.

At the time the note for $207.10 was executed, and the chattel mortgage delivered to the bank, it is not contended that the defendant obtained either money or the credit for money at said bank as alleged in the information. If he obtained property of any value whatever, it was other and different property from that for which he was informed against and placed upon trial.

It is apparent, therefore, that the evidence introduced in behalf of the state does not sustain the allegations of the information, and is not sufficient in law to make out a case of guilt of the offense charged against this defendant beyond a reasonable doubt. The demurrer of the defendant to the evidence, therefore, should have been sustained, and the court should have directed the jury to return a verdict of not guilty because of the variance between the allegations and the proof produced on the part of the state.

For the reasons stated, the judgment of conviction must be reversed and the cause remanded to the district court of Cotton county for further proceedings in accordance herewith.

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


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    PETE LITTLE v. STATE.

      No. 3087.
    Opinion Filed November 23, 1918.
    (175 Pac. 945.)
    APPEAL AND ERROR — Conviction—Affirmance. On defendant’s appeal by filing a petition in error with ease-made, where, no brief was filed or oral argument made, and where an examination of record disclosed that appeal was without merit, it would be affirmed on motion of Attorney General.

      Appeal from County Court, Carter County; Thos. W. Champion, Judge.

    Pete Little was convicted of a violation of the prohibitory law, and he appeals.
    Affirmed.

      J. B. Champion, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Pete Little, was convicted in the county court of Carter county on a charge that he did unlawfully transport six sacks of beer and one sack of whisky from a point near Dundee, Carter county, to a point one mile and a half southwest of Dundee, and his punishment was fixed at 30 days’ imprisonment and a fine of $50. From the judgment rendered on the verdict, he appealed by filing in this court, on July 27th, a petition in error with case-made.

No brief has been filed nor oral argument made. For this reason the Attorney General has filed a motion to affirm the judgment. An examination of the record discloses that the appeal is without merit.

The judgment is therefore affirmed. Mandate forthwith.


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    SAM HARRIS v. STATE.
    No. 3124.
    Opinion Filed November 23, 1918.
    (175 Pac. 946.)
    ’APPEAL AND ERROR — Appeal Taken for Delay — Affirmance. Where no brief was filed by plaintiff in error, and fliero was no appearance when case was set for submission, and evidence clearly 'established defendant’s guilt, and it appeared that appeal was taken merely for delay, a conviction would be affirmed.

      Appeal from County Court, Tulsa County; H. L. Standeven, Judge.

    Sam Harris was convicted of the crime of unlawfully selling intoxicating liquor, his punishment fixed at a fine of $50 and thirty days’ imprisonment, and he appeals. Affirmed.

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

This is an appeal from the county court of Tulsa county, wherein the defendant, Sam Harris, was convicted of selling a half pint of whisky to Mr. H. C. Holderman on the 5th day of February, 1917.

No brief has been filed in behalf of plaintiff in error, nor was any appearance made at the time this case was set for submission. The evidence clearly establishes the guilt of the defendant, and it is apparent that the appeal was taken merely for delay.

The judgment of conviction is affirmed.


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    J. C. BOGGESS v. STATE.
    No. A-3001.
    Opinion Filed November 23, 1918.
    (175 Pac. 946.)
    1. INDICTMENT AND INFORMATION — Vagrancy — Counts — Joinder. The statute classifies different kinds of persons as vagrants under separate subdivisions of the same section. The Criminal Code permits the state to charge the same offense in different forms under different counts in the same information. Held, that in charging vagrancy the state may set forth, in dif-. ferent counts as a charge against the accused, any or all the classes of vagrants defined by the statute, and a verdict of guilty of vagrancy as charged in the information would he sustained where the proof was sufficient to sustain the allegations of any particular count of the information.

      i. TRIAL — Instructions—Evidence. Where the state charges vagrancy only under one subdivision of the statute, and the court permits evidence that the accused is a vagrant under another subdivision of tbe statute, and in addition thereto instructs the jury in such a manner as to permit a verdict of guilty to be rendered if they believe the defendant to be. a vagrant under any subdivision of the statute, over objection and exception of counsel for the defendant, held, that the court erred, and that the error is prejudicial to the substantial rights of the defendant. The evidence of guilt and instructions should have been limited to that class of vagrancy charged in .the information.

      Appeal from County Court, Carter County; Thomas W. Champion, Judge.

    J. C. Boggess was convicted of the crime of vagrancy and sentenced to pay a fine of $50, and he appeals.
    Reversed and remanded for new trial.

      Sigler & Howard, for plaintiff in error.

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

Plaintiff in error, J. C. Boggess, was convicted in the county court of Carter county of the crime of vagrancy on an information, the charging part of which is as follows:

“That he, the said J. C. Boggess, did then and there unlawfully stroll and loiter idly about the streets of Ard-more, Carter county, Okla., having no visible means of livelihood and no local habitation, contrary to the form of the statutes.”

The prosecution is based on the second subdivision of section 2515, Rev. Laws 1910, which provides as follows:

“Any person who strolls or loiters idly about the streets of any city or town, having no local habitation or no honest business or employment,” is a vagrant.

During the progress of the trial, certain evidence was permitted to go before the jury to show that the defendant was a professional gambler and card sharp, which would make him a vagrant, if true, within the meaning of the fifth subdivision of section 2515, which provides:

“Any professional gambler, or gamblers commonly known as tin horn gamblers, card players or card sharps.”

In instructing the jury, the court, over the objection and exception of the defendant, gave the following instructions:

“You are further instructed that it devolves upon the state to prove every material allegation in the information, and, if the proof fails in sustaining the material allegation in the complaint, then it will be your duty to return a verdict of not guilty. You are instructed that the statute defining the crime with which the defendant is charged, reads as follows:
“ ‘The following persons are vagrants within the meaning of ths article:
“ ‘First. An idle person who lives without any means or who has no visible support and makes no exertion to obtain a livelihood by honest employment.
“ ‘Second. Any person who strolls or loiters idly about the streets of any city or town, having no local habitation and no honest, business or employment.
“ ‘Third. Any person who strolls about to tell fortunes or to exhibit tricks not licensed by law.
“ ‘Fourth. Any common prostitute, any manager, or controller of a house of prostitution or ill fame, or any one employed therein as barkeeper, caller of figures for dances, or habitual frequenters thereof.
“ ‘Fifth. Any professional gambler, or gamblers com- , monly known as tin horn gamblers, card players or card sharps.
“ ‘Sixth. Any person who goes about to beg for alms, who is not. afflicted or disabled by a physical malady or misfortune.
“ ‘Seventh. Any habitual drunkard, who abandons, neglects or refuses to aid in the support of his family. ” (Case-made, p. 77.)

Counsel for the defendant here contends that the giving of the foregoing instructions would not limit the jury to a consideration of the specific charge of vagrancy lodged ’ against this defendant, but that it permitted the jury to find the defendant guilty of vagrancy if they believed beyond a reasonable doubt he was guilty of any of the acts, or was such a person as came within the definition of any subdivision of section 2515, supra.

Jn other words, it is contended that while the specific charge against this defendant, and upon which he was called upon to defend, was that character of vagrancy defined by subdivision 2, supra, and to which his defense was directed, yet nevertheless the court in charging the jury permitted his conviction to be based upon any subdivision of said section, disregarding the specific charge contained in the information and greatly prejudicing the defendant in his substantial rights. ' •

Under the provisions of the Criminal Code of Oklahoma, great latitude is allowed in pleading public offenses; it being provided in section 5741, Rev. Laws 1910, that:

“When the same act may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment or information and the accused may be convicted of either offense * * * and the same offense may be set forth in different forms or degrees under different counts; and where the offense may be committed by the use of different means, the means may be alleged-in the alternative in the same count.”

It is required, however, that the information or indictment must charge but one offense, and that the acts constituting such offense must be stated in such a manner as to enable a person of common understanding to know ■what was intended. Section 5738, Rev. Laws 1910.

Under our statute the state may plead that the accused was guilty of vagrancy by pleading in the same indictment or information that he was a vagrant within the definition of all the subdivisions of section 2515, supra, or the state may plead that the defendant was a vagrant under any one or more subdivisions of said statute under different counts in the same indictment or information, and it would not have been necessary for the court to limit the proof except as to the particular elements of the crime charged, and to so instruct the jury. In this case, however, the state relied on that character of vagrancy defined in the second subdivision of said section, and the court, in instructing the jury, permitted the jnry to render a verdict of guilty, should they believe the defendant to be guilty of vagrancy as defined in any one of said subdivisions heretofore quoted.

We are of the opinion that to so instruct under the evidence in this case, in view of the fact that certain witnesses were permitted to testify that the accused was a card sharp and professional gambler (not alleged in the information or relied upon for conviction), was an encroachment upon the substantial rights of plaintiff in error; and for such reason the judgment should be reversed, and the cause remanded for new trial.


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    SAMUEL ARNOLD v. STATE.
    No. A-3015.
    Opinion Filed November 23, 1918.
    (175 Pac. 947.)
    INTOXICATING LIQUOKS — Unlawful Intent to Sell — Evidence. In this case the court determines as a matter of law that the evidence as detailed 'ih the opinion is-insufficient to sustain the conviction.

      Appeal from County Court, Choctaw County; W. T. Glenn, Judge.

    Samuel Arnold, convicted of a violation of the prohibitory law, appeals.
    Reversed.

      J. H. 1Warren, for plaintiff in error.

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

On information filed in the county court of Choctaw county, charging that Samuel Arnold, in said county on or about the 13th day of February, 1917, did have in his possession one (Juart of whisky bearing the label “Joel B. Frazier,” with the unlawful purpose and intent to sell same, the plaintiff in error was convicted, and his punishment fixed at confinement in the county jail for six months and a fine of $500. He has appealed from the judgment entered upon such conviction.

The first assignment of error is that • the verdict of the jury is not supported by sufficient evidence. The only testimony is that introduced by the state. It is as follows:

Ben Fitzgerald testified :

“I am sheriff of Choctaw county. On the 13th day of February, 1917, I went to the home of the defendant, Sam' Arnold, and searched his house, and found one quart of whisky concealed in a box covered with a tow sack under the floor of the'house and under a little trap door. I had information he had whisky hid in this place.”

Thereupon the state rested, and the defendant demurred to the evidence and requested the court to instruct the jury to return a verdict of not guilty. Which request was overruled; exception reserved.

The defendant may be guilty as charged, but there is not sufficient evidence to authorize his conviction under the law., There is no testimony tending to show the unlawful intent to sell, and for this reason the court should have sustained the motion to direct a verdict of acquittal.

The judgment appealed from is therefore reversed.

ARMSTRONG and MATSON, JJ., concur.


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    FRED HARDEMAN v. STATE.
    No. A-2933.
    Opinion Filed November 23, 1918.
    (175 Pac. 948.)
    1. INDICTMENT AND INFORMATION — Demurrer—Separate Offenses. In an information for burglary in the first degree, the breaking and entry may be charged with the intent to steal, and also with the intent to commit statutory rape, and such information is not subject to demurrer on the ground that it charges the commission of two separate offenses.
    2. BURGLARY — Intent—Proof—Conviction. Where an information charges the commission of burglary with’ different intents, a conviction may be had upon proper proof of the breaking and entry with either one of the intents charged, provided each of the intents charged relate to the same breaking and entry.

      3. APPEAL AND ERROR — Conflicting Evidence — Review. ■ The guilt or innocence of a defendant is peculiarly within the province of the jury to determine, and when ,tí¡te jury renders a verdict of guilty, which is approved by the trial court, and there is evidence in the record to sustain the verdict, this court will not reverse the case because the evidence is in conflict.
    4. INDICTMENT AND INFORMATION — Sufficiency .in General. Though an information be inartificially drawn, yet if it avers every essential element of the crime charged in intelligent language, so as to inform the defendant of what he is charged, such information is sufiicient.

      8. APPEAL AND ERROR — Assignments of Error — Abandonment. Errors assigned in a petition in error, which are not argued or referred to in brief of defendant, will be regarded as abandoned and not considered.
    6.. TRIAL — Verdict—Absence of Defendant’s Counsel. The absence of the defendant’s counsel from the court when the verdict of the jury is received, in the presence of the defendant, does not necessarily affect the validity of the verdict rendered.

      7. TRIAL — Verdiet—Conviction—Degree. A verdict which finds a defendant guilty of burglary as charged in the indictment, if the indictment clearly charges burglary in the first degree, is sufficient, and is not vitiated by reason of the railure of the jury to find the degree of the burglary.
    5. TRIAL — Argument—Penalty. When, in the argument of a case, the county attorney states to (he jury “that the punishment of seven years in the penitentiary is a heavy punishment, but they ought not to take that into consideration for the reason that about one-fourth of that could be knocked off for good behavior,” he is within the realms of legitimate argument.
    3. BURGLARY — Burglary in First Degree — Sufficienecy of Evidence. The evidence in this case carefully examined, and, though in conflict, found sufficient to establish the guilt of (lie defendant beyond a reasonable doubt.

      Appeal from District Court, Grady County; Will Linn, Judge.

    Fred Hardeman was convicted of burglary in the first degree, his motion for a new trial was overruled, and he brings error.
    Affirmed.

      Barefoot & Carmichael, for plaintiff in error. ••

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

The plaintiff in error, hereinafter designated defendant, was informed against for the offense of burglary, convicted, and sentenced, in accord with the verdict of the jury, to be imprisoned in the penitentiary for a period of seven years. Motion for a new trial having been overruled, defendant prosecutes an appeal to this court.

The charging part of the information is as follows:

“That 'Fred Hardeman did, in Grady county, and in the state of Oklahoma, on or about the 9th day of May, in the year of our Lord one thousand nine hundred and sixteen, and anterior to the presentment hereof, commit the crime of burglary in the manner and form as follows, to wit:
“That on or about said day and date, and in said county and state then and there being, the said Fred Hardeman did then and there willfully, unlawfully, feloni-ously, and burglariously and in the nighttime, without the consent of the owner thereof, break into and enter the dwelling house of one M. B. Waybright, in which said dwelling house there was at the time of said breaking and entering human beings, and in which there was kept and being goods and chattels, the personal property of said M. B. Waybright, with the willful, unlawful, felonious, and burglarious intent on the part of him, the said Fred Hardeman, to rape and carnally know one Gertrude Way-bright, a female person under the age of sixteen years, and not the wife of him, the said Fred Hardeman, and with the willful, unlawful, felonious, and burglarious intent on the part of him, the said Fred Hardeman, to take, steal, and carry away by stealth, and without the consent of the owner thereof, the goods and chattels of the said M. B. Waybright so kept and being in said residence as aforesaid, with the willful, unlawful, and felonious intent on the part of him, the said Fred Hardeman, to appropriate the same to his own use and benefit and to deprive the true owner thereof; that the said breaking into and entering the said dwelling house was done and accomplished by him, the said Fred Hardeman, by breaking the wire screen of, and raising an outer window of said dwelling house, contrary to the. form of the statutes in such case made and provided, and against the peace and dignity of the state.”

The defendant demurred to the information upon the grounds (1) that the facts alleged in said information are insufficient to constitute a crime against the laws of the state of Oklahoma; (2) that the same has a misjoinder of offenses, and that said information seeks to charge this defendant with the commission of two separate and distinct crimes. The court overruled said demurrer, and the defendant duly excepted.

The information is not so drawn as to meet with our approval as a model of pleading, but we do not think that it should yield to either ground of demurrer interposed thereto.

The information,, we think, charges burglary in the first degree, charging that the unlawful breaking and entry was with the intent to steal, and also with the intent to rape and have carnal knowledge of a female under the age of 16 years, and, as having carnal knowledge of a female under 16 years of age is a felony when consummated with or without her consent, it is sufficient to aver in the information that an intent existed to have carnal knowledge of such female.

Williams v. State, 10 Okla. Cr. 336, 136 Pac. 599, cited and quoted by defendant, was not a case of statutory rape, as is the intent charged in the instant case, and hence said case is not in point in this case.

The information, though badly drawn, sufficiently pleads every élement to charge the crime charged in intelligible language, and informs the defendant of the offense with which he is charged, and this is sufficient. Teague v. State, 13 Okla. Cr. 270, 163 Pac. 954; Star v. State, 9 Okla. Cr. 210, 131 Pac. 542.

The information charges a burglary, alleging two different intents with which the breaking and entry into the dwelling was made: (1) With intent to steal; (2) with intent to commit rape.

We are of the'opinion that in the same count of an information different intents covering the _ one breaking and entry, and each intent charging a felony, as in the instant case, may be properly alleged.

We are unable to see why one who breaks into a dwelling house at night may not do so with the intent, to steal, and also' with the intent to commit rape, and be charged and legally convicted of having broken into and entered with one or both intents, -as may appear from the evidence. It therefore appears that there is no misjoinder of offenses in the information, and the information does not charge the commission of two separate and distinct crimes.

The material evidence in the case is as follows:

Gertrude Waybright testified that when this happened she was 15 years old; that her birthday was May 22d; that at the time she was living with her father and mother; the house in which she lived fronted east and was> on an alley; that she knew Fred Hardeman, and had known him about two years; that at the time it happened, which was on the 9th day of May, Fred Harde-man lived hardly the length of the building they were in from the house she lived in; that Fred Hardeman had never gone with her; that he had tried to, but she would never go with him; that on the 9th day of May she was in bed, and when she woke up at about 1:30 at night, Fred Hardeman had his hand under the cover; “I felt the cover move, and I put my hand down on his, and his hand was out flat, and I thought the wind was blowing the cover, and I thought I would go to sleep again, and he moved his hand again, and I felt down there and felt his hand, and thought it was a snake, and then I got up and turned on the light, and he was down under the bed, and when I started to call mamma he stuck his head up and grinned, and I said, ‘Fred Hardeman, what are you doing here?’ and then I went to the door and called mamma, and he left;” that there was a room east of her room; that the window had a screen on it, which was torn, and which was latched before he came in; that when she first put her hand on his hand it was almost a foot from her thigh; that the second time she touched his hand it was eight or nine inches from her body, under the cover; that when she turned on the light he ducked his head under the bed so she could not see who it was, and that he did not put his hand on her body; that he did not leave until she called her mother, and when she called he ran out, making-lots of noise; that when she went to bed that night about 8:30 or 9 o’clock, and “It was, Mother said, about 1:30 o’clock when it happened”; that he did not have on any hat; that she did not know how he was dressed, as she saw only his shirt as he was down on his knees behind the bed; that before she turned on the light she could just see it was a man and thought it was her father; that she went to her mother’s room and called her, and Fred ran while she was gone; he was wearing a white shirt with blue stripes; that when she called her mother she knew it was Fred; that she could not possibly be mistaken.

M. B. Waybright testified that he was the father of Gertrude, and on May 9th resided in (jhickasha, Grady county, Okla.; that he remembered his daughter running into his and his wife’s room on May 9th, and calling for her mother; that he heard some one running out of the house; that he ran east, and went out of the east window; that there was a screen on the window; that a hole was torn in it and it was unlatched; that when witness went to bed the window was up about ten inches, and when he heard the noise the window was clear up; that there was a door in the east room and it was locked; that Fred Hardeman lived in a house about 100 or 150 feet from where witness lived; he jumped out of the window and the screen slammed back; that there was a little hole in the screen big enough to put his hand in and unhook the screen; whoever went into the house did it; it was not that way the day before, because they kept the screens fixed up to keep out the flies; witness ran to the door and it was locked; that he dressed and went over to the house in which defendant lived and knocked, and had some trouble in waking the inmates, and asked for Fred, and stated to Fred’s father that the defendant had been trying to get his girl, and that the defendant’s father said he was asleep in bed over there, and that witness did not see but heard defendant, and his father said it was impossible; that he had been there all the time since he came home. Witness further testified that he did not feel very kindly to the family since the father of Fred abused him about this case. Witness further testified that he told the father of Fred that he would not stand for this and intended to have him prosecuted.

Mrs. Minerva Waybright testified that she remembered an occasion just after midnight, about the 9th of May, in 1916, of some one entering her daughter’s room; just before her daughter turned on the ligíit she heard a noise; that she was not entirely awake when the light was turned on; that she heard her speak; she said, “Fred, what are you doing in this - room; what are you doing here?” and witness heard him run out of the door — run out of the window, she should have said; he did not sound like a persop who had on shoes; it was between 1 and 2 o’clock at night; she did washing for him the day before —two shirts — one was a soft shirt with a soft collar, and the other was a blue and white shirt with a turndown collar.

Mrs. Florence Brock testified that at the time of the trouble over at Mr. Waybright’s in May she lived next to the store which her husband kept — just on the west side of the store — and Fred Hardeman lived on the east side of the store; she heard a noise back toward Mr. _Way-bright’s; that she was awakened between 1 and 2 o’clock and heard a door or window slam and heard some one running; Mr. Waybright lived back of her, and the running seemed to come from that way.

Thereupon the defendant demurred to the evidence, which was overruled and exception saved.

W. E. Hardeman testified that he was the father of defendant; that the family consists of himself and his two sons, Fred and Osie Hardeman; that on the 9th day of May, 1916, he lived on Iowa avenue between 8 and 9; that he knew Mr. and Mrs. Waybright; that they lived south of him on the alley; they lived one lot west of him and back near the alley; that there are two rooms to his house — one about 14 feet square and the other about 8x14 feet; that he used the 14-foot room for a bedroom; his bed was on the east end of the room and the boys’ bed on the west end; that the boys slept in the same room with him; they slept together; their beds were three or four feet from his bed; that Fred came in between 9 and 10 o’clock that night and went to bed; that he slept with Osie; that Fred did not get out of bed that night at all; that witness did not go to sleep until a right smart while after he came in; that Osie came in a little earlier than Fred; that he had hardly got in bed when Fred came; that something close to 1 o’clock Mr. Waybright came over and knocked on his door and he asked who it was; that he got up and went to the door and asked what was the matter; that Waybright asked if Fred was there, and he told him he was and asked him what he -wanted; Waybright said that Fred had been around and tried to break into his house about 10 minutes before to get his girl; that witness said, “N(o, I guess you are mistaken;” then he turned around this way, and said, “Yes, he was; the folks saw him through the window;” witness said he could not have seen him because he was at home then; that Waybright said he could not stand for that; that! he was going to have him arrested, and witness.said for him to go ahead; that the boy was here in bed; that witness went and put his hands on the boy and he was in bed, but Waybright would not believe it, and he said to call him himself; that Waybright called him once or twice and Fred answered; that Fred was undressed and in bed when Waybright got there; that it was possible for Fred to have come in without witness’ knowing it, but most of the time he did know; that Waybright said the folks saw him through the window, trying to break into his house; Waybright did not tell witness Fred had broken into his house; that Fred was not out of the house that night from the time he came in until next morning; that witness did not think he could have been — he never was; that he was easily awakened — had been so all his life; that he was in a position to swear arid would swear that Fred was not out of the house that night.

Osie Hardeman said he was a brother of defendant; that he was 14 years old; that he remembered the night of the'9th of May; that that night he went to bed about 9:30; that Fred went to bed and slept with him; he had been to the show that night, and got in home about 9:30, and Fred was at the show and came right in when he did or just after it, and he also went to bed; after he went to bed he stayed there all the time; that if he had gone out witness would have known it; that Fred had not been out of the room prior to the time that Mr. Waybright came over, and that he had not heard anybody run just prior to that time; that Waybright woke witness up hollering and Fred was in bed; that he woke papa first, and then woke witness and Fred up about the same time; that at that time Fred had off his clothes and was in bed with him; that he did not think it possible for Fred to have gotten up and gone out in his nightclothes and run back and gotten into bed with him without his knowing it; that Waybright hollered two or three times after he had awakened.

The defendant testified that he was 24 years old; that he had heard the testimony of Gertrude Waybright about his being in her room the night of May 9th; that he never was there that night or any other night; that she did not see him there at the time; that he and his little brother had been to the show and got back home, and he had gone to bed about 15 minutes before he went on to bed; that he did not get up during the night; that he had not been up and out previous to that time; had not been out of the house at all; that he remembers his father coming to the bed with Waybright, and that he laid his hand on him and said to Waybright, “He is lying here, right here in bed asleep;” that he had never gone with the Waybright girl; that they were at the dam about a year ago; that he hah tried to keep keep company with her two or three times, but she had not permitted it; that they were just passing acquaintances; there were just two beds in their room at home, which were about four feet apf-rt; that his father occupied one and he and his brother occupied the other; that he heard no noise before Mr. Waybright came that night; that he pleaded guilty “here in court about a year ago” to stealing some chops out of Mr. Bell’s barn; that on the 9th of May he got home about 10 o’clock, and that he did not go over to Mr. Waybright’s that night at all; that he* never had any intercourse with this Waybright girl, nor had he ever made such proposals; he asked her to go with him and she had refused.

M. B. Waybright, in rebuttal, testified that he did not state that night at the house of defendant that any of his people had seen Fred through the window, trying to break into the house.

There is no evidence whatever- that the defendant broke into and entered the dwelling in question with the intent to steal.

It is earnestly insisted by the defendant that the evidence is not sufficient to support the verdict rendered, and this contention we cannot stamp with our approval.

It is true that the evidence is in conflict, but- the only material evidence tending to deny the positive evidence of the guilt of the defendant is that of the deefndant — a self-admitted convicted thief — and the attempted alibi set up by the evidence of the father and young brother of the defendant.

There is evidence that at midnight the defendant, a man of 24 years of age, entered the room where a young girl under 16 years was asleep, and when she awakened she discovered his hand under the covers on her bed, near her thigh; that upon being discovered the defendant, without explanation, ran off and left the house by a window which had been ‘broken. Can there be any reasonable doubt that she was awakened by defendant’s hand coming in contact with her person, that his hand was under her cover near her thigh, and that the intention of defendant was to have carnal knowledge of her, a girl under 16 years? Certainly not.

It therefore clearly appears that every ingredient constituting the offense with which the defendant is charged is shown by evidence which if believed by the jury, as they so say by the verdict, the verdict, though there be evidence in conflict therewith, is sufficiently supported by the evidence.

“As a general rule, the state may prove any conduct on the part of the defendant, or other fact or circumstance, by competent evidence -which tends to show that the accused broke into' and entered with the.felonious intent alleged in the indictment; for generally the intent can only be shown by circumstantial evidence.” (6 Cyc. 234-2.)
“And even where the felony was not actually committed, an intent to commit the same may be inferred from the time and manner in which the' entry was made, or the conduct of the accused after the entry, or both.” (6 Cyc. 245.)
“An intent to rape may be inferred, in the absence of evidence to the contrary, from the fact that the defendant broke and entered through the window of the sleeping room of a girl, put his hand upon her person, and upon her awakening left hurriedly, without explanation, or from other circumstances of a similar character.” (State v. Boone, 35 N. C. 244. 57 Am. Dec. 555; Harvey v. State, 53 Ark. 425, 14 S. W. 645, 22 Am. St. Rep. 229; State v. McBryde, 97 N. C. 393, 1 S. E. 925; State v. Powell, 94 N. C. 965; Dickson v. State [Tex. Cr. App.], 64 S. W. 1043; Ford v. State [Tex. Cr. App.], 54 S. W. 761.)
“Where the evidence is conflicting, and on the part of the state such that, if believed by the jury, a verdict of guilty should result, the conviction should not be set aside on the ground that it was not warranted by the evidence.” (Jones v. State, 12 Okla. Cr. 255, 154 Pac. 689.)
“A judgment will not be reversed on the ground that the verdict is contrary to law and the evidence, unless the appellate court finds as a matter of law that the evidence is insufficient to warrant a conviction.” (Browder v. State, 12 Okla. Cr. 285, 155 Pac. 198.)
“The credibility of witnesses and weight and value to be given their testimony are questions solely for the jury’s determination; and, to reverse judgment on the ground that the verdict is contrary to the law and evidence, this court must find as a matter of law that the evidence is insufficient to warrant the conviction.” (Piazzi v. State, 13 Okla. Cr. 60, 161 Pac. 1176.)

In Homer Gordon v. State, 13 Okla. Cr. 117, 162 Pac. 444, it is said:

“The guilt or innocence of the defendant was * * * peculiarly within the province of the jury to determine, and when the jury renders a verdict of guilty, which is approved by the trial court, and there is evidence in the record to sustain the verdict, it will not be disturbed, in the absence of prejudicial error.”

It is also earnestly insisted by the defendant that the verdict is fatally defective because it does not fix the degree of the burglary of which the jury found the defendant guilty, and with this contention we cannot agree. An inspection of the information shows beyond a reasonable doubt that the information charges burglary in the first degree.

In State v. Hayes, 23 S. D. 596, 122 N. W. 652, the Supreme Court of South Dakota, held:

“That a verdict finding accused guilty ‘as charged in the information,’ and fixing ‘his punishment as death,’ was not objectionable for uncertainty.”

In State v. Pepoon, 62 Wash. 635, 114 Pac. 449, the Supreme Court of Washington said:

“The fourth contention is that a verdict of guilty as charged-is not a sufficient finding of the degree where the statute requires the degree to be found by the jury. In addition to the facts discussed above, viz. that under the testimony no other degree of guilt could have been found by the jury, there is no difficulty in interpreting this verdict. It was as follows: ‘We, the jury in the case of the State of Washington, Plaintiff v. Geo. Pepoon, Defendant, find the defendant guilty of the crime as charged in the information.’ So that it was just as certainly a verdict of murder in the first degree as though it had been so stated in so many words, and the court would have no. difficulty whatever in pronouncing the proper judgment. Any verdict which clearly indicates the conclusion reached by the jury is sufficient. State v. McCormick, 56 Wash. 469, 105 Pac. 1037.”

In Noble Bowlegs v. State, 9 Okla. Cr. 69, 130 Pac. 824, Judge Doyle says:

“While the verdict in the case at bar is technically informal, it is sufficiently definite and certain as to the offense and the degree of which defendant was convicted, and it is, in fact, a verdict of guilty of manslaughter in the first degree. We think the defect is not sufficient to affect the substantial rights of the defendant.”

The verdict in the case read:

“We, the jury, * * * do upon our oaths find the defendant guilty * * * of manslaughter as charged in the indictment. *, * *”

However, the verdict was not excepted to, and this failure to except to the verdict is fatal to the contention “that the cause on account of alleged defect in the verdict' should be reversed.” ' '

The defendant also complains that his counsel was not sent for upon the coming in of the verdict, and consequently was not present to take an exception; but fails to cite any authority “that receiving the verdict in the absence of the defendant’s counsel constitutes prejudicial error,” and after diligent search we have been unable to find a case in point. It cannot be questioned that the law requires the presence of the defendant in court when the verdict is received and read, but it does not require the presence of his counsel at such time. It may be, as averred by defendant, that it would be better for the clerk to notify counsel when the verdict is to be received, but this is a matter of courtesy, over which this court has no control.

Again, the defendant complains that the county attorney in his closing argument was guilty of a statement to the jury detrimental to the rights of the defendant and especially prejudicial to him by telling the jury “that the punishment of seven years in the penitentiary was a heavy punishment, but they ought not to take that into consideration for the reason that about one-fourth of that could be knocked off for good behavior”; to which defendant objected, and requested the court to instruct the jury not to consider said statement, but the court did not so instruct the jury. We are of the opinion that the remarks of the county attorney were within the realm, of legitimate argument, as they merely stated a matter of law which all are presumed to know, and the contention “that this court 'would be acting in the interests of justice to reverse this case on account of such statement” is without the slightest merit.

The defendant assigns in his petition in error the refusal to give his requested instruction No. 1, and the giving of instructions Nos. 4, 6, 7, and 9 of the regular charge;, respectively, but fails to argue, or even refer to, the same in his brief, and therefore the refusal to give and the giving of said charges will not be considered.

“Assignments of error, not presented in the brief” or upon “oral argument will be treated as having been abandoned and will not be considered by the court.” (Price Patterson v. United States, 7 Okla. Cr. 272, 118 Pac. 150.)
“It is essential that all points upon which counsel rely for the reversal of a case be presented to the court in the brief or. oral argument, and when not so presented they are waived.” (John Gonzalus v. State, 7 Okla. Cr. 444, 123 Pac. 705.)

However, we have carefully read said instructions refused and- said instructions given, and fail to find any error therein which materially affects the substantial rights of the defendant.

“Instructions must always be considered in connection with the evidence in the case, and where they contain no fundamental error nor any misstatement of law which, in the light of the evidence, was calculated to mislead the jury to the injury of the defendant, and where the evidence clearly shows that the defendant is guilty, a conviction will not be reversed because the charge of the court may not be technically correct.” (Ostendorf v. State, 8 Okla. Cr. 363, 128 Pac. 144.)

The .court did not err in overruling the motion for a new trial.

Finding no error sufficient to justify a., reversal, the judgment is affirmed.

DOYLlU, P. J„ and MATSON, J:, concur.