text:
    H. G. HILDEBRANDT v. STATE.
    No. A-3399.
    Opinion Filed Sept. 25, 1920.
    Rehearing Denied May 12, 1921.
    (197 Pac. 852.)
    (Syllabus.)
    1. Former Jeiopardy — 'Entrancing Punishment for Second Violation of Liquor Law. Section 2, c. 26, Sess. Laws 1913, amendatory of Sess. Laws 1911, c. 70, § 16, does not create any new offense or define any new crime, but merely enhances the punishment against those charged and convicted of any second or subsequent violation of the provisions of the prohibitory liquor laws. Said statute is not in contravention of section 21, art. 2, Constitution of Oklahoma, in that it places the accused twice in jeopardy for the same offense.

      2. Appeal and Error — Review—Evidence. Where theTe is any evidence in the record from which the jury could legitimately conclude that the defendant was guilty of the offense charged, a judgment of conviction will not be set aside because of the insufficiency of the evidence.
    3. Evidence — Corpus Delicti — Circumstantial Evidence. The corpus delicti of an offense may be established by circumstantial evidence.
    Appeal from District Court, Garfield County; J. C. Eobberts, Judge.
    PI. G. Plildebrandt was convicted of a second violation of the provisions of the prohibitory liquor laws, and sentenced to pay a fine of $1,000 and to serve a term of three years in the state penitentiary, and he appeals.
    Affirmed.
    E. C. Patton, for plaintiff in error.
    S. P. Ereeling, Atty. Gen., and E. L. Pulton, Asst. Atty. Gen., for the State.
   MATSON, J.

Among other questions involved in this appeal, it is contended that the statute under which the defendant was convicted is unconstitutional for two reasons: (1) That the law does not create the second offense a crime any greater than a first violation, and, therefore, because there is no crime created by the statute to be known as a second offense or violation, the second offense can be no greater than the first in point of punishment, and, as the first offense is a misdemeanor, a second conviction must likewise be, in the absence of any statute defining what shall constitute a second offense; (2) that the statute is unconstitutional, because it places the defendant in jeopardy twice for the same offense.

The statute is as follows (section 2, chapter 26, Session Laws, 1913, amendatory of section 16, chapter 70, Session Laws, 1911):

“For the second and all subsequent convictions for the violation of any of the provisions of this act (prohibitory liquor law), the penalty shall be a fine of not less than fifty ($50.00) dollars, nor more than two thousand ($2,000.00) dollars, and by imprisonment of not less than thirty (30) days in the county jail nor more than five (5) years in the state penitentiary. ’ ’

The constitutionality of this statute in some of its phases has been heretofore passed upon by this court in the case of Tucker v. State, 14 Okla. Cr. 54, 167 Pac. 637. In effect, the first contention here urged against the constitutionality of this statute was decided adversely to the contentions of defendant in the Tucker Case.

However, in order to make the position of the court plain upon this question, it appears, and it is so held, that the intention of the Legislature in passing the act in question was not to create any new offense, or to define any new crime, but merely to enhance the punishment against those charged and convicted of any second or subsequent violation of the provisions of the prohibitory liquor laws. Such offenders were to be deemed habitual criminals, and a severer punishment imposed against them for the conviction of the second or subsequent offense than was to be imposed against the first violators of such statute. The increased severity of the punishment is not a punishment for the same offense for the second time, but is merely a severer punishment for the subsequent offense. As thus construed, such statutes have been uniformly held to be constitutional, and not invalid on the ground that they impose two punishments for the same crime, and thereby place the defendant twice in jeopardy for the same offense. Graham v. W. Va., 224 U. S. 616, 32 Sup. Ct. 583, 56 L. Ed. 917; State v. Findling, 123 Minn. 413, 144 N. W. 142, 49 L. R. A. (N. S.) 449; People v. Stanley, 47 Cal. 113, 17 Am. Rep. 401; Kelley v. People, 115 Ill. 583, 4 N. E. 644, 56 Am. Rep. 184; State v. Moore, 121 Mo. 514, 26 S. W. 345, 42 Am. St. Rep. 542.

■ For the reasons stated, it is the opinion of this court that the statute in question is not open to the construction contended for by counsel, nor is it unconstitutional, in that it places the accused twice in jeopardy for the same offense, in contravention of section 21, article 2, Constitution of Oklahoma.

The only other ground urged in the brief of counsel for defendant as ground for reversal is the alleged error of the trial court in overruling the motion for a new trial on the ground that there is no sufficient evidence to sustain the verdict. While the proof of the corpus delicti of the crime is based largely upon circumstantial evidence, it cannot be said, as a matter of law, that there is no competent evidence to sustain the conviction.

This court has repeatedly held that, where there is any evidence in the record from which the jury could legitimately conclude that the defendant was guilty of the offense charged, a judgment of conviction will not be set aside because of the insufficiency of the evidence. Clingan v. State, 15 Okla. Cr. 483, 178 Pac. 486; Crilley v. State, 15 Okla. Cr. 44, 181 Pac. 316. In this case it was admitted upon the trial, as well as conclusively proved, that the defendant had previously been convicted in the county court of Garfield county of a violation of the prohibitory liquor statute, which said conviction had become final; the judgment having been appealed from, and the conviction affirmed by this court, prior to the institution of this prosecution. The defendant in this prosecution was charged with the subsequent violation of the prohibitory liquor laws in that he sold intoxicating liquors to an organization known as the Fraternal Order of Eagles, which said order had a lodge room and social quarters in the city of Enid, in said Garfield county, Okla.

While there is no direct and positive testimony of the physical delivery of intoxicating liquors by defendant to said order, there is proof of the fact that the said order received, had on hand, and dispensed in its club rooms large quantities of whisky, beer, gin, and wine, at the time alleged in the information, and that defendant rendered a weekly account to said order, which account was itemized, showing that the said order owed him sums varying from $254 in one week to $373 in another week in March, 1917, for intoxicating liquors of various kinds, including whisky, beer, wine, and gin, delivered to said order, which said accounts were paid to defendant by order of the board of trustees of said lodge by. checks or warrants of said lodge, payable to the defendant, signed by the proper officers thereof, delivered to defendant, and by him cashed.

The defense interposed was that defendant was merely the collecting agent of a wholesale liquor house located in Nansas City, Mo., operated by Daneiger Bros., and that he had nothing whatever to do with the sales of such liquor, which were made direct to the lodge, or club, and shipped by the interstate commerce in the names of various of its members, without the knowledge of the defendant, and that defendant merely collected the money due on these accounts by direction of the firm of Daneiger Bros, and received a commission for his services as collector. This theory of the defense was submitted to the jury by the court’s instructions, and the jury instructed that, if they believed the same, they should acquit the defendant; and the jury was also instructed that if, after considering the entire evidence in the case, they had a reasonable doubt of defendant’s guilt, they should acquit him. It is not urged in this appeal that the court’s instructions were unfair or in any way prejudicial to the substantial rights of defendant.

While the evidence is conflicting, it is not for this court to substitute its judgment for that of the jury under such circumstances, and it cannot be said, as a matter of law, that there is no competent evidence sufficient to sustain this conviction. It has heretofore been held by this court that the corpus delicti of an offense may be proven by circumstantial evidence, as was done in this case. Brown v. State, 9 Okla. Cr. 382, 132 Pac. 359.

Taking the view, therefore, that the act is constitutional and that there is evidence in the record, if believed, which authorized the jury to reasonably conclude that the defendant was guilty of the offense charged, the judgment of conviction should be affirmed; and it is so ordered.

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    LESTER KEETER v. STATE.
    No. A-3558.
    Opinion Filed April 18, 1921.
    Rehearing Denied May 16, 1921.
    (196 Pac. 970.)
    (Syllabus.)
    1. States — South Bank of Red River as Boundary of Oklahoma. That the south or right bank of Red river, and not the middle channel of the river, is the Texas-Oklahoma boundary is shown by the Spanish-American Treaty of February 22nd, 1819 (8 Stat. L. 252), making the south bank of Red river the boundary, and providing that said river throughout the course described should belong to the United States; by the Mexican-American Treaty of January 12, 1828 (8 Stat. at L. 372); by an act passed December 19, 1836, by the Congress of Texas recognizing the same boundary (Laws of the Republic 1836, p. 133); by the act of Congress passed in 1845, admitting Texas into the Union (9 Stat. at L. 108); by act of Congress passed M\ay 2, 1890 (Organic Act), describing the boundaries of Oklahoma Territory and of Indian Territory (26 Stat. at L. 81); by act of Congress (Enabling Act) admitting Oklahoma into the Union (34 Stat. at L. 267); and by the Constitution adopted by the people of Oklahoma.
    2. Sam® — Jurisdiction—Navigable Waters. Upon the admission of Oklahoma into the Union "on an equal footing with the original states,” the state has the same rights, sovereignty, and jurisdiction over the navigable waters as the original states, and the title of the navigable waters and the soil beneath them, which has been temporarily held by the United States, passed to the state, and is subject to its sovereignty and jurisdiction.
    Appeal from County Court, Jefferson County; B. L. Dillard, Judge.
    Lester Keeter was convicted of unlawful possession of intoxicating liquors, and appeals.
    Affirmed.
    Bridges & Vertrees and J. H. Harper, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for tbe State.
   DOYLE, J.

Upon an information charging that the defendant, Lester Keeter, did, in Jefferson county, have in his possession intoxicating liquors, to wit, whisky, with the intent to sell, give away, and otherwise furnish the same, and to convey the same, in violation of the prohibitory liquor laws of the state, the plaintiff in error was tried and convicted and his punishment fixed at confinement in the county jail for three months and a fine of $500. From the judgment, rendered April 12, 1919, upon such conviction, he appeals.

The undisputed evidence for the state shows that on the night of the date alleged the defendant, Lester Keeter, from some point in the state of Texas, drove an automobile on to the ferryboat at Heartsfield’s Ferry, on Red river, about seven miles west of Waurika, in Jefferson county; that the boat was at the water’s edge on the Texas side; that, observing two deputy sheriffs of Jefferson county on the Oklahoma side of the river, he backed his automobile off the ferryboat, and about 75 feet from the boat his car stalled; the officers crossed the river and found him standing by his car and 15 sacks of whisky on the sand bar about 70 feet from the car; that the defendant was seen to carry something from the car after it stalled to where the whisky was found. At that time ■ the bed of Red river was about three-quarters of a mile wide, tbe channel was about 200 feet wide, and swept along the left or north bank.

When the state rested, counsel moved for a dismissal upon the ground that the testimony shows that the alleged offense, if committed at all, was committed beyond the jurisdiction of this court, which motion was overruled and exception allowed.

Among the instructions given by the court and excepted to by the defendant was that the south boundary of Jefferson county, Okla., is the south bank and the meanderings thereof of Red river.

Instructions were asked on behalf of the defendant informing the jury that where a river is the common boundary between two states, the jurisdiction to enforce the laws of such states extends only to the middle of the stream, and that neither state is authorized to prosecute a person for an act done upon the waters of the river upon the opposite side of the river unless Congress grant consent to concurrent jurisdiction by interstate compact.

The same jurisdictional question was again raised in the motions for new trial and in arrest of judgment. It is contended in behalf of the plaintiff in error that the testimony failed to prove that the place where the alleged offense was committed was in the state of .Oklahoma, and it is urged:

“That the fact as to where the boundary of Oklahoma extends to on Red river is dependent upon the question whether or not Red river is a navigable stream, and that this question is exclusively in the jurisdiction of the federal courts, and that if Congress, in the act creating the territory of Oklahoma or the Enabling Act admitting the state, did not confer ■ jurisdiction, civil and criminal, over the river or concurrent jurisdiction has not been secured by compact entered into between the states of Oklahoma and Texas, with the consent of Congress, then each state can only exercise such jurisdiction to the middle of the stream” — citing State v. Cunningham, 102 Miss. 237, 59 South. 76, 34 Ann. Cas. 1914D, 782; Spears v. State, 8 Tex. App. 467; Parsons v. Hunt, 98 Tex. 420, 84 S. W. 644.

The question presented by the record is whether the middle of the channel of Red river, or the south bank thereof, is. the boundary line between Oklahoma and Texas. If the south bank is the boundary line, the undisputed evidence of the state shows that the offense charged was committed in the state of Oklahoma.

In the last case cited above, the Supreme Court of Texas, held that “the state of Texas has jurisdiction over the waters, of Red river, which forms the boundary between it and the Indian Territory to the center of the stream, ’ ’ following the opinion of the Texas Court of Criminal Appeals, in the case of Spears v. State, supra, wherein it was held that, under “the. treaty of 1819 between the United States and Spain, which fixed the Rio Roxo of Naehitoches, or Red river, as one of the-boundaries between the two nations,” the jurisdiction of Texas, extends at least to the middle of Red river. It appears from the opinion, the decision is based upon the theory that the treaty “is silent as to which bank of said stream should constitute the boundary,” and the general rule that the mere designation of a river as a boundary, in the absence of a further description,, means the channel or middle of the stream.

That these decisions are baséd upon a misapprehension of the provisions of the treaty of 1819 is apparent from the language of the treaty construed in the light of the diplomatic correspondence that preceded the making of the same, which may be found in the opinion of the Supreme Court of the United States in the case of United States v. Texas, 162 U. S. 1, 16 Sup. Ct. 725, 40 L. Ed. 867; this being the case decisive of the controversy between the United States and the state of Texas over the jurisdiction of Greer county. It will be seen therefrom that, following the purchase of Louisiana in 1803, negotiations pended for some time between tbe United States and Spain to settle the boundary question, and one of the points of negotiations was as to the boundary line along the Sabine and Red rivers. Finally, Mr. Adams, Secretary of State, submitted a proposition to the Spanish minister, among other points, proposing that the boundary line between- the two countries west of the Mississippi should begin on the Gulf of Mexico, at the mouth of the River Sabine, continuing north along the western bank of that river to the thirty-second degree of latitude; thence by a line due north to the Rio Roxo or Red river; thence following the course of the said Red river westward to the 102nd meridian of longitude, then crossing the said Red river, thence due north to the River Arkansas, the Sabine and Red rivers and all islands in the same throughout the course described to belong to the United States, and that the western bank of the Sabine and the southern bank of Red river should be the limit of the jurisdiction of Spain. The Spanish minister required that “the boundary between the two countries shall be the middle of the rivers, and that the navigation of the said rivers shall be common to both countries. ’ ’

Mr. Adams replied that the United States had always intended that “the property of the rivers should belong to them,” and he insisted on that point, “as an essential condition, as the means of avoiding all collision, and as a principle adopted henceforth by the United States in its treaties with its neighbors.” He agreed, however, “that the navigation of the said rivers to the sea shall be common to both people. ’ ’ The Spanish minister assented to this, and the result was the treaty signed on February 22, 1819.

The third article of the treaty reads:

“Art. 3. The boundary line between the two countries, west of the Mississippi, shall begin on the Gulf of Mexico, at the mouth of the River Sabine, in the sea, continuing north, along the western bank of the river to the 32nd degree of latitude; thence, by a line due north, to the degree of latitude where it strikes the Rio Roxo of Nachitoches, or Red river; then following the course of the Rio Roxo westward, to the degree of longitude 100 west from London and 23 from Washington ; then, crossing the said Red river, and running thence, by a line due north, to the River Arkansas; thence, following the course of the southern bank of the Arkansas, to its source, in latitude 42 north; and thence, by that parallel of latitude, to the South sea. The whole being as laid down in Melish’s map of the United States, published at Philadelphia, improved to the 1st of January, 1818. But, if the source of the Arkansas river shall be found to fall north or south of latitude 42, then the line shall run from the said source due south or north, as the the ease may be, till it meets the said parallel of latitude 42, and thence, along the said parallel, to the South sea: All the islands in the Sabine, and the Red and Arkansas rivers, throughout the course thus described, to belong to the United States; but the use of the waters, and the navigation of the Sabine to the sea, and of the said rivers Roxo and Arkansas, throughout the extent of said boundary, on their respective banks, shall be common to the respective inhabitants of both nations.”

The treaty may be found in full in 8 Stat. at L: 252, 254, 256.

By the treaty of 1828 between the United States of America and the United Mexican States, concluded January 12, 1828, the dividing limits of the respective countries were declared to be the same as those fixed by the treaty of ,1819. 8 Stat. at L. 372.

The Republic of Texas, by an act passed December 19, 1836, declared that the civil and political jurisdiction of that Republic extended to the boundaries therein described, and accepted the boundary line with the United States in this particular as declared in the said treaty between Spain and the United States. 1 Sayles, Early Laws of Texas, art. 257.

By a joint resolution passed March 1, 1845, Congress consented that “the territory properly included within and rightfully belonging to the Republic of Texas ’ ’ might be erected into a state to be admitted into the Union, one of tbe conditions of such consent being that the new state be formed subject to the adjustment by the UniáfcfcStates of all questions of boundary that might arise with other governments. 5 Stat. at L. 797. The conditions prescribed were accepted by Texas. 1 Sayles, Early Laws of Texas, art. 1531. And by the joint resolution of Congress approved December 29, 1845, Texas was admitted as one of the states of the Union, on an equal footing in all respects with the original states. 9 Stat. at L. 108.

The Organic Act, approved May 2, 1890, 26 Stat. at L., p. 81, described the boundaries of Oklahoma Territory and of the Indian Territory as that part of the United States which is bounded on the north by the states of Colorado and Kansas, on the east by the states of Arkansas and Missouri, on the west by the state of Texas and territory of New Mexico, and on the south by the state of Texas. By act approved June 16, 1906, as amended March 4,1907, 34 Stat. at L. 267, 1286, Oklahoma was admitted to the Union “on an equal footing with the original states.” By section 1 of the Enabling Act, it was provided:

‘ ‘ That the inhabitants of all that part of the area of the United States now constituting the' territory of Oklahoma and the Indian Territory, as at present described, may adopt a Constitution and become the state of Oklahoma.” In article 17 of the Constitution, the boundaries of Jefferson county are described at this point as “the state line between Texas and Oklahoma.”

In the case of DeLoney v. State, 115 S. W. 138, the Supreme Court of Arkansas passed on the question here presented, and held:

“That the south bank of the Bed Biver, and not the thread of the stream, is the Texas-Arkansas boundary, is shown by the Spanish-American treaty of February 22, 1819 (8 Stat. 252, et seq.), making the Bed Biver a boundary, and providing that the river should belong to the United States; by the Mexican-American treaty of January 12, 1828 (8 Stat. 372); by Act Cong. June 15, 1836, ch. 100, 5 Stat. 50; Const. Ark. 1836, art. 1, and subsequent constitutions; by an act passed by thn Congress of Texas in 1836 (Laws of the Republic of 1836, p„ 133) recognizing the same boun^try; and by the Act of Congress passed in 1845 (Act of MuSch 1, 1845, 5 Stat. 797), admitting Texas and describing its territory as being that belonging to the Republic of Texas.”

The court, speaking through Chief Justice Hill, said:

“It is clear from the Act of Congress admitting the state-(of Arkansas) and the Constitution of the state that all of Red river at this point was intended to be included within this state, and the court might well stop at that point, for this is a settled principle: ‘A question like this respecting the boundaries of nations, is, as has been truly said, more of a political than a legal question; and, in its discussion, the courts, of every country must respect the pronounced will of the legislature.’ United States v. Texas, 143 U. S. 621, 12 Sup. Ct. 488, 36 L. Ed. 285. But as the Texas Court of Appeals had reached the conclusion that the jurisdiction of that state extended to the thread of Red river, it has been thought best to point out wherein that court erred in applying the general rule which it did in reaching that conclusion. These treaties between the United States and Spain, and between the United States and Mexican States, and the acquiescence therein by the Republic of Texas and the state of Texas, demonstrate that the boundary line was the south bank of Red river, and not the thread of the stream; and this jurisdictional line was, adopted when Arkansas was admitted into the Union and is embedded in its Constitution.”

That the south or right bank of Red river from the 100th meridian of longitude to the state line of Arkansas, and not the middle of the channel, is the Texas-Oklahoma boundary is. shown by the treaty of February 22, 1819, between the United States and Spain; by treaty of January 12, 1828, between the United States and Mexico; by an act passed December 19,, .1836, by the Congress of the Republic of Texas, accepting the boundary line with the United States in this particular; by act of Congress passed March 1, 1845, admitting Texas into the Union; by the act of Congress (Organic Act) defining the boundaries of Oklahoma Territaip^nd of the Indian Territory, and by the act of Congress admitting Oklahoma into the Union on an equal footing with the original states.

It follows that the jurisdiction of Oklahoma extends to the south bank of said Red river.

The jurisdiction of the state of Oklahoma over Red river, where the south bank constitutes the boundary, in no way depends upon the fact as to whether such river is navigable or non-navigable. In passing upon the effect of the act admitting Alabama into the Union, the Supreme Court of the United States held in the case of Pollard v. Hagan, 3 How. 212, 11 (U. S.) L. Ed. 565, that the state had the same right, sovereignty and jurisdiction over the navigable waters as the original states, and could exercise all the powers of government which belonged to and may be exercised by them, excepting with respect to control over public lands owned by the United States; and that the title of the navigable waters and the soil beneath them was in the state and subject to its sovereignty and jurisdiction. Kansas v. Colorado, 206 U. S. 46, 51 L. Ed. 956; Donnelly v. U. S., 228 U. S. 243, Ann. Cas. 30, 1913C, 710; State v. Akers, 92 Kan. 169, 140 Pac. 637, Ann. Cas. 40, 1916B, 543.

The Supreme Court of this state in the case of State v. Nolegs, 40 Okla. 479, 139 Pac. 943, held:

‘ ‘ The ownership of the navigable waters and the soil under them in all the territory embraced in the Louisiana Purchase, was held in trust by the federal government, and as each of the states was created, the same, within the boundaries of such state, passed to it and the absolute right to such navigable waters and the soil thereunder is in the state, subject to the public rights and the paramount power of Congress over navigation.”

Upon the whole ease we are of opinion that the evidence is amply sufficient to sustain the verdict, and finding no reversible error in the record, the judgment is affirmed.

MATSON and BESSEY, JJ., concur.


author: PER CURIAM.

text:
    Ex parte DELBERT NOWLIN.
    No. A-3971.
    Opinion Filed May 14, 1921.
    (196 Pac. 1065.)
    Application for writ of habeas corpus by Delbert Nowlin. Writ allowed and petitioner discharged.
    Williams & Luttrell, for petitioner.
    W. C. Hall, Asst. Atty. Gen., and W. C. Madison, Co. Atty., for respondent.
   PER CURIAM.

This is a petition for writ of habeas corpus, filed for the purpose of setting at liberty Delbert Nowlin. Petitioner avers that he is illegally restrained of his liberty and unlawfully imprisoned by John Ratliff, sheriff of McClain county; that petitioner was arrested upon a charge of burglary with intent to steal a certain set of harness, and was taken before H. E. Everett, a justice of the peace in and for the city of Purcell, and a preliminary examination was had; that there was no legal or competent evidence introduced upon, such examination tending to sustain the charge, and therefore there is no legal authority for holding petitioner in custody.

It is further averred that the district judge of the Fourteenth Judicial District is seriously ill and confined to his bed, and for this reason petitioner could not present this cause to him. A rule to show cause issued and the county attorney of McClain county has filed an answer conceding that the evidence upon the preliminary examination does not sustain the charge, and did not legally warrant the justice of the peace in. holding defendant to the district court, and consents that the writ issue and said petitioner be discharged.

It is therefore considered and adjudged that the petitioner Delbert Nowlin is unlawfully restrained of his liberty, and that he is entitled to a discharge from the imprisonment of which he-complains. He is therefore by the judgment of the court discharged therefrom.


author: MATSON, J.

text:
    GEORGE DUNSCOMBE v. STATE.
    No. A-3637.
    Opinion Filed May 21, 1921.
    (197 Pac. 1073.)
    (Syllabus.)
    1. Rape — Assault With Intent to Rape — Evidence—Former Acts of Accused. In a prosecution for assault with intent to rape, former acts of defendant of the kind committed on the prosecutrix are relevant on the issue of intent, but such occurrences must be closely related in point of time to that upon which the prosecution is based in order to avoid the objection that defendant has been unfairly surprised.
    2. Same — Remoteness of Former Acts. It is manifestly unfair to defendant to permit such evidence to be introduced in rebuttal where the nearest of such alleged separate and distinct acts of immoral conduct with other females occurred in point of time nine months prior to the commission of the alleged offense and under circumstances wholly dissimilar.
    3. Same — Appeal—Reversible Error. Where the evidence of defendant’s guilt of the crime of assault to' rape is weak and unsatisfactory, the admission in rebuttal of evidence of alleged separate and distinct acts of immoral conduct, occurring in point of time from nine to fifteen months prior to the commission of the alleged offense, is held to be reversible error.
    Appeal from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.
    George Dunscombe was convicted of the crime of assault with intent to rape, and punishment assessed at imprisonment in the county jail for a period of sixty days, and appeals.
    Judgment reversed.
    Scothorn, Boardman & Withington, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

George Dunscombe was convicted in the district court of Oklahoma county of the crime of assault with intent to commit a rape, alleged in the information to have been committed on one Ruth Lowe, a female under sixteen years of age, about the 16th day of February, 1919. ■

In substance, the testimony is about as follows: Ruth Lowe, the prosecuting witness, testified that she was fifteen years of age on the 3rd day of ^¡¡g^iary, 1919; that on the 16th day of February, 1919, she, WJgw'iher with her aunt, Alma Roberts, was rooming with defendant and his wife on West Third street in Oklahoma City, and had been rooming there since the 24th day of December, 1918; that on the 16th of February, 1919, which was Sunday, witness and her aunt slept together in one room of defendant’s home, while defendant and his wife slept on a sleeping porch; that about 7:15 on that morning, witness went to the sleeping porch and awakened defendant and his wife, after which she returned to a room adjoining the one in which she and.her aunt had been sleeping and sat down by a stove. Thereafter, defendant came into the room, and she and defendant then went into her room.

As to what occurred then, witness testified as follows:

"Q. When was the first time you saw Mr. Dunscombe that morning, if you remember? A. About eight-thirty, I suppose. Q. What was he doing, if anything? A. Nothing. Q. Where was he at? A. He was — when I first saw him he was in his room. Q. When was the next time you saw him? A. He came in my room the next time. Q. About what time was it he came into your room? A. About eight-thirty. Q. What did he do, if anything, when he came in your room? A. He came in and got in bed there. Q. Who was in bed, if anybody? A. My aunt was there at first. Q. Were you in your night clothes or were you dressed? A. No, sir; I was not dressed. Q. What did he do, if anything, when he got in bed with you? A. My aunt got out and he grabbed me and I tried to get away from him and began to scuffle and he pinched me on the breast. Q. What else did he do, if anything? A. He pinched me on the limbs and breast and I scuffled and tried to get away from him and we scuffled for quite a while. Q. Did he at that time or any other time make any threats toward you? Mr. Boardman: That’s objected to as incompetent, irrelevant, and immaterial; leading and suggestive.
"The Court: Overruled.
"Mr. Boardman: Exceptions.
“Yes, sir. Q. What did he say? A. He told me to not tell it. Q. What was it? A. He told me I had better not tell it. Q. What did he sa^ibout the reason, if any? A. He did not give any reason on^oxad better not do it. Q. Did he say anything with reference to what he would do with you if you did tell it? A. He said there was no telling what he would do. Q. Did you believe that? A. Yes. Q. Had he ever attempted to do as he did that morning any time prior to that day? A. Yes. Q. When was it, if you remember? A. When we would be in the front room and at his office. Q. How many times if you know at his office did he attempt to do these things? A. I don’t know. Q. What did he do at his office, Ruth? A. When I would go in sometimes he would grab me and pinch me and scuffle and when I would pass him in the front room he would pinch me on the hip. Q. Did he ever put his hands under your clothes ? A. Yes, sir. Q. Did you make any objection to that? A. Yes, sir. Q. What would he say? A. He would just scuffle with me and try to hold me. Q. Did you ever tell anybody what Mr. Dunseombe had done toward you? A. No, sir. Q. Until after the information was filed? A. No, sir. Q. What was the reason? A. Because he told me not to and I was afraid to. Q. Did you ever tell your aunt anything about it? A. No, sir. Q. How long did you stay in the room after Mr. Dunseombe came in your room on Sunday, February 16th? A. About 15 minutes, I suppose. Q. During this time was he in bed with you? A. Yes, sir. Q. With reference to how the covers were in the bed, were they off of you or were they over you? A. They were on the bed but they were just all mixed up. He came and got in and we were scuffling and we threw them off. Q. Was there anybody in the room during the time you and Mr. Dunseombe were in the room? A. My aunt went out and then we were alone. Q. Then I believe you said you were alone the rest of the time he was in there? A. Yes, sir. Q. Did he ever do anything besides pinch you on the breast and lower limbs and place his hand under your dress? A. Yes, sir; he has bit me lots of times. Q. Where? A. Bit me on the arms and on the limbs. Q. Where abouts did he bite you on the limbs? A. Below the knees when we were scuffling. Q. Any place else ? A. No, sir. Q. Has he ever done anything else other than what you have related? A. No. sir. Q. Did the threats Mr. Dunseombe made toward you cause you to be afraid of him? A. Yes, sir.”

On cross- examination, prosecjArix testified in part as follows : ‘

‘' Q. I understood you to say you had been to Mr. and Mrs. Dunscombe’s room that Sunday morning before he came to your room? A. Yes, sir. Q. So you say that was some time before eight-thirty, you think? A. It was about seven-fifteen when I went to their room. Q. At that time can you tell the jury whether or not Mr. and Mrs. Alberry were in the house? A. No, sir, I don’t remember which party were in the house. Q. There were some other folks in the house? A. Yes, sir. Q. At that time were Mr. and Mrs. Alberry renting rooms there at all? A. I don’t think so; I think it was the other lady, Alma’s friend. Q. You don’t think that she had left then? A. No, sir. Q. Your recollection is that Mr. and Mrs. Alberry came there after this Sunday? A. Yes, sir; I thought it was them that was in there at that time but I don’t believe it was now. Q. You think it was your aunt’s friend? A. Yes, sir. Q. And Mr. and Mrs. Gardner were there? A. Yes, sir. Q. How did you happen to go there about the time you awakened up, seven-fifteen, and go to Mr. Dunscombe’s room? A. Because Mrs. Dunseombe told me to call her when we got up. Q. When did she tell you that? A. That night. Q. Told you to call Mr. Dunseombe the next morning? A. Told me to call her the next morning. Q. She told you to call her the next morning ? A. She told me the night before to call her the next morning when we got up. Q. How far from your room was Mr. and Mrs. Dunscombe’s room? A. Theirs was just off the dining room on the sleeping porch and ours was off the front room. Q. On the same floor? A. Yes, sir. Q. Any upstairs to that house? A. No, sir. Q. When you got out of bed that morning did you put on any jacket or anything around you? A. Yes, sir. Q. Around your night clothes? A. Yes, sir. Q. What was it? A. I had on a bath robe. Q. A regular bath robe? A. Yes, sir. Q. Anything else? A. No, sir. Q. That was when you first got out of bed? A. Yes, sir. Q. Then I understand you went to Mr. and Mrs. Duns-eombe’s room and called them? A. Yes, sir. Q. What did you say to them? A. I told Mrs. Dunseombe to 'come on and get up now,’ is the way I said it. Q. What did she say? A. She said ‘All right.’ Q. Did Mr. Dunscombe say anything? A. I don’t remember that he did. Q. Was he in the room? A. Yes, sir. Q. You are sure that he was in the room? A. Yes, sir. Q. You opened the door, did you? A. Yes, sir. Q. Did you go in? A. No, sir, not that morning. Q. You did not go in? A. No, sir. Q. Miss Ruth, at that time you did stay some of the nights in the room occupied by Mr. and Mrs. Duns-combe, was that the night your aunt was out and you was there? A. Yes,'sir. Q. And you and Mrs. Dunscombe were both in bed and you got in bed with them a while? A. Yes, sir. Q. And that was all there was to that ? A. Yes, sir. Q. When was that as compared to this Sunday, February 16th, was that the day before you speak of, this Sunday you mentioned? A. Yes, sir. Q. About how long before ? A. About a week or something like that, I don’t remember the date. Q. Mrs. Dunscombe was still in bed when you left that night, was she? A. Yes, sir. Q. Now, after you had called Mr. and Mrs. Dunscombe that morning, Sunday, February 16th, did you, in going from your room to their room, did you see anybody else in the house? A. No, sir. Q. Mr. and Mrs. Gardner, or the other lady? A. No, sir; they were not up yet. Q. The house was quiet at that time? A. Yes, sir. Q. Then did you go back to your room? A. Yes, sir. Q. Was your aunt in bed then? A. Yes, sir. Q. You got back in bed with her then, did you? A. Yes, sir. Q. Then did Mr. and Mrs. Duns-combe come into the room after that? A. I got'up and went out in the front room and Mr. Dunscombe came out there and be began to pick at me and we began to scuffle, and I run into my room and he came and my aunt went out. Q. Where was Mrs. Dunscombe at that time? A. She came to the door of our room for a few minutes and then she went back and dressed. Q. After you had gone back to your room, after having called Mr. and Mrs. Dunscombe, did they get right up? A. Yes, sir. Q. And then did they come to your room? A. Yes, they came to the front room. Q. Both of them? Á. Yes, and Aunt Alma had not got up, and Mrs. Dunscombe began to talk to her and Mr. Dunscombe— Q. (Interrupting) I can’t hear you, little girl, what I asked you was after you had gotten up that morning and called Mr. and Mrs. Dunscombe, they got up soon, did they? A. Yes, sir. Q. They got up pretty soon after you called them? A. Yes, sir. Q. And then I understand that both of them came into where you and your aunt were? A. Yes, sir. Q. Were you out of bed at that time? A. Yes, sir. Q. Which room were you in, the sleeping room, or had you gone into the next room? A. I was sitting in the front room. Q. That is where the stove is? A. Yes, sir. Q. Had you been back to bed at all or had you just sat down? A. I had been back to bed and I decided to get up and my aunt had not got up yet. Q. Did you still have on your bath robe? A. Yes, sir. Q. You had gone from your bedroom to the sitting room? A. Yes, sir. Q. Is there a door that leads from that room to the bedroom? A. Yes, sir. Q. And your aunt was in the bedroom in bed? A. Yes, sir. Q. Then I understand you and Mr. Dunscombe had some scuffling? A. Yes, sir. Q. You and Mr. Dunscombe had scuffled some before that a good many times? A. Yes, sir. Q. Do you recollect prior to that time having hid his glasses? A. Yes. Q. At night when he wanted to read a paper? A. Yes, sir; in a playful way, is all. Q. And you played back and forth with him and hid his paper? A. Yes, sir. Q. And sometimes during the evening you would scuffle with him too? A. Yes, sir. Q. Do you recollect of jumping on him once and tearing a hole in his trousers with your shoe? A. Yes, sir; one evening when I was trying to get away from him. Q. Is it not true a great many times when you and Mr. Dunscombe would scuffle around the room that lots of times you would start it by teasing him? A. Sometimes Mrs. Dunscombe would say ‘Go and hide his paper,’ and I would, and he would grab me and that is the way it would start. Q. Lots of times it would start just that way? A. Yes. Q. When you were scuffling up there in the room that Sunday morning after Mr. and Mrs. Dunscombe came in, did Mr. Dunscombe have on a bath robe? A. No, sir. Q. Are you sure of that? A. Yes, sir. Q. How long did you stay in that front room after Mr. and Mrs. Duns-combe came in? A. He began to pick at me and then said, ‘I am going to go and get Alma out of bed,’ and she hollowed for me and then she got up and then he grabbed me, and I tried to get away from him. Q. That was all a part of the same scuffling, was it not; just a continuation of your scuffling? A.'No, sir; when he would pinch me like that I would try to get away from him. Q. When Mr. Dunscombe did go in the bedroom your aunt was in bed? A. Yes. Q. Did she say anything? A. She said, ‘You had better get out of here,’ that she wanted to get up. Q. Is that all that you can remember that she said? A. Yes; but when he started to get in bed she said, ‘Well, you can just have the bed then,’ and she went out in the front room and she and Mrs. Dunscombe were out in the front room. Q. Miss Ruth, did Mr. Dunscombe, after you were scuffling with him in the sitting room where the stove was, just off the bedroom with the door open and your aunt in bed, did you and Mr. Dunscombe go back where your aunt was, both at the same time, or did he come after you? A. He went in and said he was going to get Alma out of bed, she hollowed, and I ran in and jumped in bed back of her, and then he got in and she got out. Q. Were the covers over your aunt at that time? A. Yes. Q. Did you get under the cover? A. Yes. Q. In back of her? A. Yes. Q. And Mr. Dunscombe came in and he got in with you? A. Yes. Q. Had you been still scuffling? A. No, sir; I had not been; when he came in there I quit. Q. Didn’t he try to pull the covers off of your aunt? A. Yes, sir. Q. What did he say to her? A. I don’t remember, but when I got in he got in and then she got out and said, ‘Well, you can just have the bed,’ and then he grabbed me. Q. That was all your aunt said to him that you remember? A. Yes, sir. Q. I understood you to say that Mr. Dunscombe stayed in there in the bed several minutes, is that true? A. Yes, sir. Q. What did you say to him during that time, if you can remember? A. I don’t remember, but I told him to let me alone, and he would not, and then was when he pinched me on the breast. Q. What did he say? A. He said he would never let me go. Q. Did he say anything else? A. Not that I remember, but I kept trying to get away from him. Q. As near as you remember, did he say anything else that you have not related? A. He asked me — as we were scuffling and I was trying to get away from him and he would not let me go and I hollowed for Aunt Alma— Q. That was when you were in'the sitting room? A. No; we were in the bed. Q. What did he say? A. He said, ‘Keep still,’ ’when I hollowed for Aunt Alma. Q. Anything else? A. No, sir. Q. You cannot remember anything else? A. No, sir. Q. You did get out of bed, didn’t you? A. Yes. Q. Was Mr. Dunscombe in the bed when you got out? A. Yes.”

M. C. Gardner, the only other witness used by the state to prove the case in chief, testified that on the 16th day of February- 1919, he and his wife were rooming with defendant in a room adjoining that occupied by the prosecuting witness and her aunt; that on said morning at about 8:30, he observed defendant in the room with prosecuting witness while peeping through a crack in the door between their two rooms; that he saw defendant sit down on the bed and then lay over on the bed, then witness did not look any more, but just listened for a while, and heard prosecuting witness hitting defendant on the back and saying, "Daddy, quit that.” Defendant seemed to be in the room fifteen or twenty minutes. On one occasion prior to that, he had seen prosecuting witness coming out of defendant’s room about 11:30 at night. On the occasion that he saw defendant in prosecuting witness’ room on February 16th, both seemed to be dressed in their night clothes.

Defendant testified in substance that he was 56 years of age, was in the real estate and oil business; that prosecuting witness and her aunt came to stay at their house, about Christmas, 1918, and stayed until the 26th of February, 1919; that another lady and a little boy had another room rented in defendant’s home; that the little boy was about two years old, and that defendant would frequently play with him and the prosecuting witness; that prosecuting witness would sometimes steal defendant’s newspaper and hide it, and also his reading glasses, and defendant would scuffle with her at times in trying to get such things back; that on one occasion the prosecuting witness came and got in the bed with defendant and his wife, but was on the outside of the bed on the other side of defendant’s wife; that on the morning of February 16th, prosecuting witness got up earlier than defendant and his wife did, and came and called them, and defendant’s wife went out into the kitchen to get breakfast and told prosecuting witness to get “Daddy and Alma up for breakfast,” (referring to defendant and prosecuting witness’ aunt); that prosecuting witness then came in and started to pull the covers off of defendant’s bed, and defendant’s wife also came, in and helped prosecuting witness, and they pulled the covers, off of defendant and pulled defendant out of bed; that defendant then got up and went in the front room to put on his, shoes; that the door was open between that room and the-room in which prosecuting witness’ aunt was sleeping; that defendant was wearing a big cotton flannel sleeping robe; that, prosecuting witness came in and said, “Let’s pull Alma out of bed,” referring to her aunt: that defendant and prosecuting witness then went into the room and started to pull Alma out of bed; that defendant jumped over on the back edge and started to kick Alma out with his feet; and prosecuting witness jumped in between them and helped kick her aunt out of the bed; that defendant then turned and pushed prosecuting witness out of bed, covers and all; and that was all he did on the occasion; that he did not in any way attempt to have sexual intercourse with the prosecuting witness, and never had any such intention; that in pushing her out of bed he might have taken hold of her, but didn’t know whether in doing so he pinched her or not; that he never told prosecuting witness not to say anything about it; that prosecuting witness and her aunt ate breakfast with them that morning; that no reference was made to this occurrence; that they stayed in his home for ten days after that, and were on apparently perfectly good relations with him, and that he didn’t know anything about any trouble until after he was arrested; that prosecuting witness had frequently jumped on his back and had ridden him around the house in a playful way, and he thought nothing more of it than he would if she had been his own child; that prosecuting witness was a very playful child, and liked to scuffle.

On cross-examination, the state was permitted to ask -defendant concerning certain alleged acts of immoral conduct 'of a similar nature occurring with other females in defendant’s office on three different occasions, ranging in time from ■ about nine months to fifteen months prior to the alleged commission of this offense. Defendant denied each of these oc- • currenees. In rebuttal the state was permitted, over objection • and exception of defendant, to introduce witnesses to prove these alleged occurrences. The action of the trial court in ; permitting the admission of such evidence in rebuttal forms the basis of the main contention of counsel for a reversal of ithis judgment.

The authorities are divided on the question of whether evidence of other acts of alleged misconduct of a similar nature is admissible in a case of this kind for the purpose of proving intent. The better reasoned authorities, in our opinion, are to the effect that such evidence is admissible for that purpose with proper limitation as to the time of such occurrences, in order to avoid the objection that defendant has been unfairly surprised. Wigmore on Evidence, section 357.

The evidence in this ease as to defendant’s guilt of the crime for which he was convicted is very slight; in fact, without the evidence introduced in rebuttal of the other alleged ■acts of immoral conduct with other females, there is practically no evidence which indicates intention on the part of defendant to rape the prosecuting witness on the Sunday morning. February 16th. Certainly the witness Gardner, who was in 'the adjoining room and saw defendant on the bed with prose ■cuting witness, apprehended no intention of defendant to nape her, or else he would have broken through the slight partition which separated him from them. The wife of defendant and the annt of the prosecutrix were also in th& house at that time, and knew that defendant was in the room with prosecutrix. Neither of them was used as a witness in this case. Why the aunt of the prosecutrix was not used by the state does not appear. She and the prosecutrix ate breakfast with defendant that morning after it is alleged he attempted to assault prosecutrix, and also stayed at their house for ten days thereafter, and during all of that time prosecutrix made no complaint to her aunt or to anybody else, and thereafter ran frequent errands for defendant and his wife, and also made trips to defendant’s office unaccompanied. Prosecutrix, attempts to explain her conduct in this respect by stating that defendant told her that if she told about it there was no telling; what he would do, but the conduct of the prosecutrix and those who were present in the house clearly indicates a lack of belief on the part of all of them that defendant assaulted the prosecutrix with any criminal intent at that time.

In view of the weak and unsatisfactory nature of the evidence of the guilt of defendant of the particular offense of which he was convicted, we think it was manifestly unfair to him to permit evidence to be introduced in rebuttal to these alleged separate and distinct acts of immoral conduct occurring with females other than the prosecutrix, the nearest of which in point of time occurred nearly nine months prior to the commission of this alleged offense and under circumstances wholly dissimilar. Evidence of this character when admissible should be used in chief. The state should not ambush defendant and in effect unfairly surprise him by waiting to introduce such evidence in rebuttal.

While it would be discretionary with the trial court to permit its introduction in rebuttal, we think its admission in this case under the circumstances was clearly an abuse of discretion on the part of the trial court and prejudicial to defendant, and deprived him of a fair opportunity to meet an issue which should have been presented in chief.

The fact that the jury only assessed a punishment of sixty days in jail for an offense which in its nature, if true, is ¡so heinous as to demand at least a penitentiary sentence, is persuasive that even with this unfair rebuttal testimony the jury had some doubt of the guilt of defendant of any intent to •ravish the prosecutrix.

If defendant is guilty of the offense charged, a punishment "of sixty days in jail is ridiculous, uncalled for, and amounts "to a prostitution of justice; if defendant is innocent, he should 'be acquitted. In any event the issue should be presented to ¡another jury in an orderly and legal manner, so that defendant ".may have a fair opportunity to meet in his defense all the issues bearing on the material ingredients of the crime, which should have been presented in the state’s case in chief.

The Attorney General has filed a confession of error in this case, admitting that the evidence of other alleged assaults was improperly introduced in rebuttal, and expressing the opinion that the judgment of the trial court should be reversed.

For reasons stated, the judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

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


text:
    VIRGIL KITTRELL v. STATE.
    No. A-3643.
    Opinion Filed May 21, 1921.
    (197 Pac. 1022.)
    (Syllabus.)
    Appeal and Error — Time of Appeal — Dismissal. All steps necessary to confer jurisdiction of an appeal in a felony case must be taken 'within six months after the rendition of the judgment in the trial court. If the appeal is not properly perfected within the six-months-, period, this court does not acquire jurisdiction of the same, and the-attempted appfeal must necessarily be dismissed.
    Appeal from District Court, Grady County; Will Linn, Judge.
    Virgil Kittrell was convicted of the crime of murder, and sentenced to be imprisoned for life, and he appeals.
    Appeal, dismissed.
    Pruiett, Sniggs, Patterson & Morris, for plaintiff in error-..
    S. P. Freeling, Atty. Gen., W. C. Hall, Asst. Atty. Gen.„ for the State.
   MATSON, J.

Plaintiff in error, Virgil Kittrell, hereinafter referred to as defendant, was convicted in the district court of Grady county of the crime of having murdered, in said county on the 29th day of September, 1918, one Sam Scott, and punishment fixed at imprisonment in the state penitentiary for life.

Defendant has attempted to appeal to this court from the judgment of conviction rendered against him in the trial court by filing in this court, on the 15th day of October, 19.19, a case-made with petition in error attached. However, an examination of the record discloses that defendant, within the six months period after the rendition of judgment, served no written notices of appeal upon the court clerk or county attorney of Grady county, as provided in section 5992, Revised Laws 1910; nor did he, within said six months period,, have any summons in error issued out of this court upon the-Attorney General, or procure a waiver of the issuance- and service of same by said officer, as provided in section 5997, Revised Laws 1910.

The record discloses that counsel for defendant gave oral notice of appeal in open court at the time of the rendition of judgment. Such notice is not sufficient to confer jurisdiction upon this court. Burgess v. State, No. A-3575, 18 Okla. Cr. 574, 197 Pac. 173, and cases there cited.

There is also contained in the files what purports to bé a waiver of the issuance and service of summons in error and the entering of an appearance in this cause by the Attorney General, which was filed October 26, 1920, one year and eleven days after the case-made and petition in error were filed and eighteen months after the rendition of judgment in the trial court.

All steps necessary to confer jurisdiction of the appeal on this court must be taken in a felony case within six months after the rendition of judgment in the trial court. If the appeal is not properly perfected within the six months period, this court does not acquire jurisdiction of the same, and the attempted appeal must necessarily be dismissed.

No proof of the appeal having been properly perfected in this cause within the six months period after the rendition of judgment, and the Attorney General being without authority to confer jurisdiction upon the court by entering an appearance after said six months period had expired, the appeal is dismissed, and the cause remanded to the trial court with instructions to carry into effect its judgment.

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


text:
    TROUP SAXON v. STATE.
    No. A-3653.
    Opinion Filed May 21, 1921.
    (198 Pac. 107.)
    (Syllabus.)
    1. Indictment and Information — Amended Information — Verification. Where an information in a misdemeanor case is amended by interlineation before trial by leave of court in a formal manner only, so that the amendment did not change the material allegations of the information to such an extent as to prejudice the substantial rights of defendant on the trial, the amended information need not be reverified and, where the original information was verified by the positive oath of complaining witness, it was not error for trial court to overrule a motion to quash the amended information based on the grounds of no sufficient verification.
    2. Trial — Election of Offenses — Discretion of Prosecuting Attorney. It is discretionary with the prosecuting attorney, either before instituting the prosecution or before trial, to elect for which offense he will prosecute the accused where the available evidence shows the commission by the same act or transaction of more than one offense.
    Appeal from County Court, Nowata County; R. M. God-frey, Judge.
    Troup Saxon was convicted in the County Court of No-wata County of the offense of pointing a weapon at another, and appeals.
    Affirmed.
    Bert Van Leuven, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from the county court of Nowata county, wherein the plaintiff in error, Troup Saxon, hereinafter referred to as defendant, was convicted of the offense of pointing a weapon at another, and sentenced to pay a fine of $250 and to be imprisoned in the county jail for a period of three months.

It is first contended that the trial court erred in permitting the county attorney to amend the information by inter-lineation, changing the word "revolver” to that of "gun” without requiring the information to be reverified. The original information charged defendant with having pointed a revolver at one Dawson, and the information as amended charged defendant with pointing a gun at Dawson.

The statute on which this prosecution is based reads as follows:

“It shall be unlawful for any person to point any pistol or any deadly weapon, whether loaded or not, at any other person or persons, either in anger or otherwise. ’ ’ Section 2553, Rev. Laws 1910.

Section 5695, Rev. Laws 1910, provides:

“An information may be amended in matters of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit.”

The record discloses that the original information was filed on the 26th day of July, 1919; that it was verified by the positive oath of the complaining witness, E. W. Dawson. That on said date defendant appeared in person, was furnished a copy of the information, was arraigned and pleaded not guilty to the charge. That thereafter, defendant, on the 8th day of September, 1919, asked permission of the court to withdraw his plea of not guilty and file demurrer to the information and a motion to quash the same. Such permission was granted and the demurrer and motion to quash were each overruled; whereupon, on the same date, defendant waived arraignment and pleaded not guilty. Also, on said 8th day of September, 1919, the county attorney asked leave to amend the information by interlineation, by changing the word “revolver” to the word of “gun”, which leave was granted over objection and exception of defendant, and defendant was then thereupon granted permission to refile his demurrer and motion to quash the information, which motion to quash was overruled.

Thereafter, on the 10th day of September, 1919, the cause was called for trial and defendant appeared in person and by attorney, and both state and defendant announced ready for trial, and each side introduced its evidence and rested, and the cause was submitted to the jury, which returned a verdict of guilty, but failed to assess the punishment. Thereafter, on the 15th day of September, 1919, after having overruled defendant’s motion for a new trial and motion in arrest of judgment, the trial court sentenced defendant to imprisonment in the county jail for a period of three months and to pay a fine of $250.

In the case of French et al. v. State, 17 Okla. Cr. 542, 190 Pac. 707, this court held:

"Where the amendment to the information is one of form only, not changing the nature of the charge to the material prejudice of defendant’s rights, it may be made after' plea entered or after the cause is called for trial or after the jury impaneled. ’ ’

In the same case, it is also held:

"Where the amendment is one of substance, it is, however, necessary in a misdemeanor case that the information be re-verified. ’ ’

It follows from the holding in the French case, supra, and from prior decisions of this court to like effect, that in a misdemeanor case if the information is amended in substance, it is necessary, where such defect is not waived, that the information be reverified.

The motion to quash specifically attacked the sufficiency of the verification of the amended information, and if the amendment made was one of substance, the trial court erred in overruling the motion to quash.

However, on the other hand, if the amendment was only formal,, and did not change the material allegations of the information to such an extent as to prejudice the substantial rights of defendant on the trial, there was no necessity of a reverification of the information, and the action of the trial court in overruling the motion to quash was not erroneous.

A consideration of the statute upon which this prosecution is based, together with the statute permitting amendments to informations, convinces us that the amendment made in the instant case was merely formal, and did not change the material allegations of the information, to the prejudice of the substantial rights of the accused. State v. Finn, 31 La. Ann. 408.

It is also contended that the trial court erred in refusing to give the following instructions:

“You are instructed that the words 'pointing a gun’ as used in the statute mean and are synonymous with the words 'aiming a gun,’ and the using of a gun with which to commit assault and battery upon or beat up another does not constitute an offense under this statute.”

It is contended that there is no evidence to show that the gun was pointed as contemplated by the statute, but was used as a club. or bludgeon with which to commit an assault and battery upon prosecuting witness.

With this contention we cannot agree. We think the evidence shows that the gun was both pointed at the prosecuting witness, and used also as a bludgeon. It was discretionary with the prosecuting attorney to elect before trial for which offense he would prosecute the accused where the evidence showed the commission, by the same act or transaction, of more than one offense. This principle is elementary. However, there could be no conviction of an offense other than that charged or a lower degree thereof or of an offense necessarily included therein, although the evidence may disclose the fact of defendant’s guilt, by the same acts, of an offense not charged or included within the charge.

Judgment affirmed.

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