text:
      In re GEORGE WILKINS.
    No. A-1004.
    Opinion Filed June 6, 1911.
    1. HABEAS CORPUS — Rights and Privileges. Section 10 of the Bill of Rights provides: "The privilege of the writ of habeas corpus shall never be suspended by the authorities of this state." Held, that the writ of habeas corpus is a writ of right, and cannot be abrogated or its efficiency impaired by statute, and the eases within the relief afforded by the writ at common law cannot be placed beyond its reach under the constitutional guaranty.
    2. SAME — Questions for Review ■ — • Jurisdiction. The review of a judgment of conviction and imprisonment by writ of habeas corpus is limited to the questions: Had the court which rendered the judgment jurisdiction of the subject-matter and of the person convicted? And did the court in the course of the proceedings which resulted in the judgment lose jurisdiction to render a valid judgment and sentence?

      S. SAME — Mere Irregularities of Procedure. Habeas corpus does not He to correct mere irregularity of procedure, where there is jurisdiction. There must be illegality or irregularity sufficient to render the proceedings void.
    4. SAME — Impaneling of Jury. Irregularities in the impaneling of a trial jury does not affect the jurisdiction of the court so as to justify release by habeas corpus of a person so convicted.
    5. COURTS — “Competent Jurisdiction.” A court of competent jurisdiction is one having power and authority of law at the time of acting to do the particular act.
    6. JUDGMENT — Superior Courts — Misdemeanors—Number of Jurors. A judgment and sentence rendered in a superior court upon a verdict returned by a jury of six men on a trial for a misdemeanor is not void for illegality.
    (Syllabus by the Court.)
    Application of George Wilkins for writ of habeas corpus.

    Writ denied and petitioner remanded.
    The petitioner, George Wilkins, on January 24, 1911. filed in this court a verified petition, wherein he avers that he is unlawfully restrained of his liberty by one J. L. Wisener, sheriff of Muskogee county, at and in the common jail of said county. The petition further avers:
    “That the aforesaid restraint and imprisonment of your petitioner is illegal, and that the aforesaid pretended conviction in said superior court was before a jury of six persons, impaneled in said superior court for the trial of your petitioner ; that your petitioner did not at the time, nor has he ever, agreed to a trial in said court by said jury of six persons, nor has your petitioner in anything waived his right to a trial by a jury as guaranteed to him by the Constitution and laws of this state.
    “Wherefore, your petitioner prays that the writ of habeas corpus may issue out of this honorable court, directed to the said John 1* Wisener,. sheriff as aforesaid, commanding him to have the body of your petitioner before this honorable court at a time and place to be by the court fixed, together with the cause of the detention of your petitioner; that your petitioner may be , ordered discharged from the custody of said sheriff; that pending the hearing of this petition your petitioner be admitted to bail in a sum to be fixed by this honorable court, and for all other, further and different relief to which he may be entitled in the premises.”

      A writ of habeas corpus issued returnable before the court,- and petitioner was admitted to bail pending the determination of the cause. In answer respondent made return that said petitioner is held in custody by virtue of an order of commitment duly issued out of the superior court, and attaches a copy of said commitment to his return so made, showing that on March o, 1910, the petitioner was sentenced to confinement in the county jail for 60 days, and for the further period of time until a fine of $200 and costs be satisfied at the rate of $2- per day if the same was not paid.
    There was also filed a stipulation, as to the record, that the following is a true and correct copy of the journal entry in the case of the State of Oklahoma v. George Wilkins, No. 163 criminal, to wit:
    “Now on this 23d day of February, 1910, being a day of the regular January term of the superior court of Muskogee county, Okla., this cause came on for hearing’ in its regular order. The state appearing by W. J. Crump, county attorney. The defendant filed a motion to quash the information herein, and the court, after having heard said motion, overruled the same, to which the defendant duly excepted. The defendant filed a demurrer to the information herein, and, after having heard said demurrer, the same was by the court overruled, to which the defendant duly excepted. The defendant waived arraignment and entered a jilea of not ’guilty, whereupon a jury of six good men of the regular panel were selected, impaneled, and sworn to try the cause. After having heard all- the evidence, the instructions of the court, and argument of counsel, the jury retired in charge of a sworn bailiff of this court to consider their verdict, and afterwards returned into court with the following verdict, to wit: ‘We, the jury in the above entitled action, duty impaneled, and sworn, upon our oaths, find the defendant guilty as charged in the information herein.’
    “It is also stipulated and agreed between the parties herein named that case No. 163 criminal is the casé in which judgment under which said George Wilkins was imprisoned at the time he sued out the writ of habeas corpus herein.
    “Jan. 30, 1911.
    “W. E. Disney, Co. Atty., Muskogee County.
    “KistlEr & Haskell, for petitioner.”
   DOYLE, J.

Upon the record before us it cannot be doubted ■or denied that the superior court of Muskogee county had jurisdiction of the person and the subject-matter. The only alleged defect in the proceedings is the impaneling of a jury of only six men in the trial of the case, which was done without ■objection on the part of the defendant. It only remains to consider whether this alleged irregularity rendered the proceedings void. It is now contended on behalf of petitioner that his conviction was illegal and void, and the court had no jurisdiction to proceed thereon to judgment and sentence, because the same was rendered on the verdict of a so-called “jury” of six men without an express waiver by the defendant of his constitutional right to trial by a jury of twelve men entered of record, and the further contention that even with the consent of the defendant a jury of six men in a superior court could not find a valid verdict in any criminal case.

If the defendant could not effectually waive his constitutional right to trial by a jury of twelve and consent to a trial by a jury of six men, the judgment .and sentence would in that •event be illegal and void. Hence, upon the petitioner’s theory of the case, habeas corpus is the proper remedy, notwithstanding the provision of the statute (section 6207, Comp. Laws 1909) that:

“No court or judge shall inquire into the legality of any judgment or process, whereby the party is in custody, or discharge .him when the term of commitment has not expired in •either of the cases following: * * * Second. Upon any process issued on any final judgment of a court of competent jurisdiction. * * *”

Section 10 of the Bill of Rights provides:

“The privilege of the writ of habeas corpus shall never be suspended by the authorities of this state.”

And the general statute is (section 6196, Comp. Law's 1909) :

“Every person restrained of his liberty, under any pretense whatever, may prosecute a waft of habeas corpus to inquire into the cause- of the restraint, and shall be delivered therefrom when illegal.”

In the case of Ex parte Mingle, 2 Okla. Cr. 708, 104 Pac. 68, it was held that:

“The writ of habeas corpus is a writ of right, and cannot he abrogated or its efficiency impaired by statute, and the cases within the relief afforded by the writ at common law cannot be placed beyond its reach under the constitutional guaranty.”

While it is well settled that mere irregularity in proceedings resulting in the imprisonment, however, flagrant, is not sufficient ground to discharge on habeas corpus, yet if the petitioner be imprisoned under a judgment of a court which had no jurisdiction to render the judgment complained of, such want of jurisdiction may be inquired into on habeas corpus, and if found to exist is ground for a discharge of. the petitioner. Ex parte Johnson, 1 Okla. Cr. 414, 98 Pac. 461; In re McNaught, 1 Okla. Cr. 528, 99 Pac. 241; Ex parte Gudenoge, 2 Okla. Cr. 110, 100 Pac. 39; Ex parte Howard, 2 Okla. Cr. 563, 103 Pac. 663; Ex parte Justus, 3 Okla. Cr. 111, 104 Pac. 933; Ex parte Brown, 3 Okla. Cr. 329, 105 Pac. 577; In re Talley, 4 Okla. Cr. 398; Ex parte Show, 4 Okla. Cr. 416.

Under the Constitution of the United States, art. 3, sec. 2, par. 3, providing, “The trial of all crimes except cases of impeachment shall be by jury,” and the territorial statutes (section 5435, Wilson’s Rev. & Ann. St. 1903) providing that, “Issues of fact must be tried by jury,” the right of trial by jury could not be waived at the time of the adoption of the state Constitution by a defendant charged with a crime triable by jury at common law, where a plea of not guilty was entered. Callan v. Wilson, 127 U. S. 540; In re McQuown, 19 Okla. 347, 91 Pac. 689; Miller v. State, 3 Okla. Cr. 457, 106 Pac. 810.

“The right of trial by jury shall be and remain inviolate. * * *» (Sec. 19, art. 2, Const.) This provision of the Bill of Rights unquestionably' preserves the right and necessity of trial by jury as it existed at the time of the adoption of the Constitution, except as modified by the Constitution itself. West v. Cobb, 24 Okla. 662, 104 Pac. 361, 24 L. R. A. (N. S.) 639. In re Simmons, 4 Okla. Cr. 662.

Our Constitution further provides (sec. 20, art. 7) :

“In all issues of fact joined in any court, all parties may waive the right to have the same determined by jury; in which case the finding of the judge upon the facts, shall have the force and effect of a verdict by jury.”

In the case of Cowden v. State, 5 Okla. Cr. 71, 113 Pac. 202, it is held that this constitutional provision applies to criminal as well as civil cases, and is self executing, and where the defendant waives a trial by jury, the state consenting, all questions of fact are for the court, and the court is authorized to try the question of guilt of the accused on a plea of not guilty.

It is further provided in art. 2, sec. 19, that “in county courts and courts not of record the jury shall consist of six men”; and that “In criminal cases less than felonies, three-fourths of the whole number of jurors concurring shall have power to render a verdict.”

In addition to the district courts and county courts provided for in the Constitution, the Legislature created and established in every county in the state having a population of thirty thous- and or more, and having a city therein of eight thousand or more, a court of civil and criminal jurisdiction co-extensive with the county, to be known as the superior court of such county, which shall be a court of record, and providing that such superior court shall have and exercise concurrent jurisdiction with the district court in all cases, and concurrent jurisdiction with the county court in all civil and criminal matters except matters probate. Act approved March 6, 1909 (ch.. 24, art. 4, Comp. Laws 1909). The act further provides that “all misdemeanor cases shall be tried by a jury of six men, instead of twelve.”

In the case of Hill v. State, 3 Okla. Cr. 686, 109 Pac. 291, it .was held that superior courts are not co'unty courts, as the latter term is used in section 19 of the Bill of Rights, even when exercising jurisdiction concurrent with county courts, and that the provision in the act creating superior courts, prescribing “that all misdemeanor cases shall be tried by a jury of six men instead of twelve,” is unconstitutional and void.

The constitutional clause prescribing a jury of six men for the trial of misdemeanors in county courts and the provision contained in section 1970, Comp. Laws 1909, that “all misdemeanor cases in superior courts shall be tried by a jury of six men instead of twelve, constitute, at least, consent on the part of the state that in a misdemeanor case the defendant may waive his right to a jury of twelve and consent to the trial by a jury of six men in a superior court.

“Where a constitutional right in a criminal case is largely for the benefit of the accused or in the nature of a personal privilege, the law is well settled that the accused may waive such right.” (Starr v. State, 5 Okla. Cr. 440, 115 Pac. 356.)

In the case of Dalton v. State, 6 Okla. Cr. 85, 116 Pac. 954, this court said that:

“Under the constitutional provision and the laws of this state, upon a trial for misdemeanor in a superior court, the defendant may have a choice of three modes of trial, either by a constitutional jury of twelve, or by a jury of six persons, where he waives his right to a jury of twelve, or by the court, the state consenting.”

At the time of the adoption of the state Constitution the statute provided that a jury may be waived, with the assent of the court, “by written consent, in person or by attorney, filed with the clerk,” or “by oral consent, in open court, entered on the journal.” (S.ec. 5808, Comp. Laws 1909.) It is insisted that if the court should hold that section 20 of article 7 of the Constitution authorizes a waiver of trial by jury, in criminal cases, then in that event such waiver could be only made in the manner prescribed by section 5808, Comp. Laws 1909. This contention would be well founded if the question were before this court upon appeal. Dalton v. State, supra. But as we view the law, it does not go to the question of the jurisdiction of the court. It is, at most, a mere irregularity. The defendant by his failure to object to a jury of six men waived his constitutional right to a jury of twelve.

■ In the case of In re McNaught, 1 Okla. Cr. 528, 99 Pac. 241, this court said:

“The manner and method of selecting the trial jury is not a question that can be reviewed in a habeas corpus proceeding. * * * Disobeying the law, or a failure to comply with the provisions of the law governing the selection of a petit jury, does not so affect the jurisdiction of the court as to justify the release by habeas corpus of a person convicted upon a trial had by a jury so illegally selected. It is unnecessary for us to consider whether the jury was properly or illegally impaneled, as it is a matter that does not go to the jurisdiction of the court.”

It is further insisted that “if trial by jury is waived at all, the issues of fact must then be submitted to the only other trier of facts recognized by the Constitution, namely, the court.” This contention is fully answered by the doctrine declared in the Dalton case, supra. A trial for misdemeanor by a jury of six men is in a measure sanctioned by the Constitution and the statute, and by such a tribunal the petitioner herein was tried, convicted, and sentenced. We agree with the learned counsel that the court must keep strictly within the limits of the law authorizing it to take jurisdiction to try the case and to render judgment, and it cannot pass beyond those limits in any essential requirement. But where the court follows a mode of procedure sanctioned by law, for the determination of the question of the guilt or innocence of the accused, .it has jurisdiction to render judgment. Its action may be erroneous, but its judgment is not void. Counsel for petitioner have presented the questions involved to the court in their brief in a very scholarly manner, and should certainly be commended for the industry and ability shown in its preparation. While we are ever anxious to preserve in its integrity every constitutional right, we do not believe the constitutional guaranties were ever intended to' shield criminals against the consequences of their criminal conduct.

Our conclusion is that the defendant, bv failing to object, effectually waived his right to a trial by a jury of twelve men.

The judgment and sentence are therefore legal and valid. Viewing the law as we do, the writ of habeas corpus is hereby discharged and the petitioner is remanded to the custody of the sheriff of Muskogee county, with direction to carry into execution the judgment and sentence of the court.

FURMAN, P. J., and ARMSTRONG, J„ concur.


source: Caselaw Access Project

author: FURMAN, P. J.

license: Public Domain

text:
    E. J. TERRY et al. v. STATE.
    No. A-1255.
    Opinion Filed April 4, 1912.
    (122 Pac. 559.)
    1. INTOXICATING LIQUORS — Unlawful Possession — Sufficiency of Evidence. For testimony -which sustains a verdict for having possession of intoxicating liquors with intent to violate the prohibitory liquor laws of Oklahoma, see opinion.
    2. WITNESSES — Credibility and Impeachment — Admissibility of Evidence. The previous occupation, companions, and associates of a witness are proper subjects of inquiry for the purpose of affecting his credibility.
    3. EVIDENCE — Relevancy—Preparation for Crime. Where a person is on trial, any fact is admissible in evidence which tends to prove preparation on his part to commit the crime with which he is charged.

      i. EVIDENCE — Acts and Declarations of Conspirators. Where two or more persons have conspired together to commit an offense, any statement made by one of such persons in pursuance of such conspiracy is admissible in evidence against all of his co-conspirators.
    (Syllabus by the Court.)

      Appeal from G. W. Ferguson, Judge.

    E. J. Terry and others were co”nvicted of having in their possession intoxicating liquors with the intention of violating the prohibitory law, and appeal.
    Affirmed.

      Ben Smith and J. W: Johnson, for appellants.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, P. J.

This is an appeal from a judgment, rendered in the county - court of Blaine county, against appellants for having in their possession intoxicating liquors with the intention of violating the prohibitory liquor laws of this state.

It was proven upon the trial of this cause that on the 14th day of February, 1911, the premises occupied by appellants were searched for intoxicating liquors by the officers of Blaine county; that appellants- claimed to be engaged in the poultry business, and occupied a two-room house in the town of Watonga; that one of these rooms was occupied as a living room and the other as a place of business; that a barrel, containing 37 bottles of whisky, was found in this house in the room used as a living room, and also a bottle of whisky was found in said room; that an empty barrel was found in this house similar to the one which contained the whisky. It was also proven that on the 30th day of January, 1911, the appellant Brown received, at the depot in Watonga, a drum or barrel of whisky weighing 100 pounds; and that appellant Terry was • present and identified appellant Brown as the owner of the whisky when it was received at the depot. It was also proven that on the 13th day of February following, appellant Fluff received a drum or barrel of whisky at the railroad depot in the town of Watonga containing 50 bottles of whisky. This was the day before the whisky was found in the premises of appellants. A number of witnesses testified that they had visited the place of business of appellants early in February and had obtained whisky there, although it is not clear as to -whether or not they paid for the whisky. This, however, was immaterial. The sheriff testified that after the whisky was found in the possession of appellants, and they were arrested, appellant Terry claimed the whisky belonged to him, and stated that he had it for his own use. None of the appellants lived in Watonga before January, 1911.

In the early part of January, shortly after the appellant Terry reached Watonga, he had a conversation with the state’s witness, F. S. McConahay. Said witness testified as follows:

“We were talking about the officers, and Terry got to talking about being in that business and in the oil burner business at Lawton, and he said that he was in the same building with the county attorney for three or four months before the county attorney ever found out about it. He said that he had a sample in the outside room, and there in the back room he had the stuff. He said that he was never out of it. He said that he never let men out or in there that were intoxicated. He said that when the county attorney found it out he asked him how long he had been running there, and he finally told him. He called him by name, and told him that he wanted to run just two more days, and the county attorney told him to go ahead and run the two days and then to get out; and he said that he went from there to Oklahoma City and started in the restaurant business as a kind of a stall. I don’t know how long he said he was in business there; but he said that the police told him that if he didn’t get out they would throw him in the jug.”

Several other witnesses testified to similar statements made by appellant Terry. Appellants Huff and Brown did not reach Watonga until the latter part of January. It is true that much of this evidence was contradicted by the defendants’ testimony; but the credibility of the witnesses was a question for the jury to determine. The jury having accepted the truthfulness of the state’s testimony, we are bound by it. We think the testimony overwhelmingly and conclusively established the guilt of all of the appellants.

- It is contended upon the part of counsel for appellants that the statements alleged to have'been made by appellant Terry with reference to his previous occupation were not admissible in evidence. With this contention, we cannot agree. Terry was a witness in his own behalf. It was therefore competent to inquire into his previous occupation, companions, and associates for the purpose of affecting his credibility as a witness. These matters, being voluntary, are an index of character, and can always be inquired into. See Crawford v. Ferguson, 5 Okla. Cr. 378, 115 Pac. 278.

The evidence was clearly admissible upon another ground, because it tended to establish the fact that appellant Terry and -those associated with him had gone to the town of Watonga for the purpose of establishing a bootlegging joint. Any testimony which shows preparation to commit a crime is always admissible in criminal prosecutions against ail persons who are concerned in the commission of such crime.

The other testimony shows that appellants were all acting together in the commission of the offense charged. Therefore the statements of Terry were admissible against all of his co-conspirators. This is an elementary proposition of law, so well established that it is not necessary to discuss it or to cite authority in its support. The fact that appellants received a barrel of whisky on the 30th day of January, which had all been disposed of, and that they received another barrel of whisky on the 13th day of February, and had disposed of thirteen bottles of this by the 14th clay of February, when the house was searched, tended to prove that appellants were engaged in the bootlegging business in the town of Watonga, as charged, in the information.

We are therefore of the opinion that the evidence not only supports the verdict of the jury, but that it clearly establishes the fact that appellants are all guilty. The judgment of the lower court is therefore, in all things, affirmed.

ARMSTRONG and DOYLE, JJ., concur.


author: DOYLE, J.

text:
    SONNY TYSON v. UNITED STATES.
    No. A-634.
    Opinion Filed April 10, 1912.
    (122 Pac. 733.)
    1. ROBBERY — Criminal Prosecution — Sufficiency of Evidence. In a prosecution for assault with intent to rob, the evidence is held sufficient to support the verdict and that no reversible error was committed on the trial.
    2. SAME — Indictment — Assault with Intent to Rob. An indictment for assault with intent to rob need not state what the defendant intended to take, nor that he intended to deprive the owner thereof, nor is it necessary to allege ownership in the party assaulted; mere possession in him being sufficient.
    3. SAME — Instructions — Sufficiency. The instructions of the court, taken as a whole, fairly stated the rules and principles of law applicable to the issues involved.
    4. SAME — Indictment — “Rob.” In the statute relating to assault with intent to rob, and an indictment following its language, the term “rob,” is used in its common-law sense.
    (Syllabus by the CouTt.)

      Appeal from District Court, Garvin County; ■ Robinson McMillan, Judge.

      Sonny Tyson was convicted of assault with intent to rob, and appeals.
    Affirmed.

      Carr & Field, for plaintiff in error.
    ■ Chas. West, Atty. Gen. and Smith C. Matson, Asst. Atty. Gen., for the United States.
   DOYLE, J.

The plaintiff in error was convicted in the district court of Garvin county of the crime of assault with intent to rob, and was sentenced to serve a term of three years in the state penitentiary. The judgment was entered May 13, 1909.

The record shows that the conviction was had on an indictment returned by a grand jury in the United States court in the Indian Territory for the Southern district of said territory, at the October term, 1906, and that the case was pending in said court at the time of the admission of Oklahoma as a state. That the case was assigned for trial at the March, 1909, term of the district court of Garvin county, and the defendant defaulted and was subsequently re-arrested. The' record further shows that upon arraignment defendant entered a plea of not guilty, that subsequently, without permission to withdraw his plea, a general demurrer to .the indictment was filed, which demurrer was overruled.

• The Supreme Court- of Arkansas directly passed upon the sufficiency of an indictment in nearly the identical language employed herein, holding the indictment good. Traver v. State, 72 Ark. 524, 81 S. W. 615. See, also, McClain, Criminal Law, pars. 228 and 281.

The prosecution here was under the Arkansas statute. The indictment follows the language of the statute. The term “rob” is used therein in its common-law sense and has a well-defined meaning. 2 Russell on Cr. par. 76. The indictment is sufficient and the demurrer thereto was properly overruled.

The second assignment is that:

“The court erred in refusing to sustain the demurrer of the defendant to the evidence introduced in support of said indictment.”

On the part of the prosecution, John C. Roberts, whom it is alleged in the indictment the defendant assaulted with a pistol with intent to rob. testified that at the time in question he was bookkeeper for the Butts Lumber Company at Wynnewood, Ind. T.; that he had known the defendant seven or eight years; that the day before the assault the defendant sat around the lumber office all the afternoon and watched witness make up $200 or $300 in $5 and $10 bills, and put it in the safe. That the next night about 8 o’clock witness was working in the office with the door locked and the safe open and the blinds up, when some person rattled the door, and the defendant'said: “Let me in, please, the door is locked.” That he knew the defendant’s voice and opened the door to let him in. As the defendant came in he had a gun in his hand and witness pushed the door to and caught him in the door, that they scuffled until the glass was broken out of the door; that the defendant finally got loose, rushed in and said, “God damn you, I got you where I want you, throw up your hands, or I will blow your brains out”; that the defendant rushed out the door, and several people hearing him hallooing appeared upon the scene.

The defendant’s counsel insist that the proof wholly fails to show what the intent of the defendant was in making the assault. The court in overruling the demurrer said: “The jury have the right to judge from all the surrounding circumstances the intent of the defendant.”

What intent existed in the mind of the defendant at the time of the assault can only be determined by his acts, manner, and conduct at the time, together with the surrounding circumstances. His intent was therefore a question of fact for the jury. The demurrer to the evidence was very properly overruled by the trial court.

The instructions given correctly state the law of the case, and the objections thereto are without merit.

Perceiving no prejudicial error in the record, the judgment of the district court of Garvín county is affirmed, and the cause remanded thereto forthwith, with direction to enforce its judgment and sentence therein.

FURMAN, P. J., and ARMSTRONG, J, concur.


author: ARMSTRONG, J.

text:
    ROBERT L. DEATON v. STATE.
    No. A-1049.
    Opinion Filed May 18, 1912.
    (123 Pac. 701.)
    1. APPEAL — Review—Questions of Fact. When the testimony in the record tends reasonably to support the findings of the jury, this court will not reverse a judgment of conviction upon the facts.
    2. LARCENY — Evidence—Sufficiency. Por facts sufficient to sustain a conviction, see opinion.
    3. APPEAL — Review—Credibility of Witnesses. As a general rule, this court on appeal will not undertake to review the evidence in so far as its weight and the credibility of the witnesses are concerned.
    (Syllabus by the Court.)

      Appeal from District Court, Stephens County; Frank M. Bailey, Judge.

    Robert E. Deaton was convicted of larceny, and appeals.
    Affirmed.
    The plaintiff in error, Robert E. Deaton, was convicted at the November, 1910, term of the district court of Stephens county'on a charge of grand larceny, and his punishment fixed at imprisonment in the state penifentiary for a period of one year and one day. The conviction is based upon a charge that Robert Deaton, the accused, Robert Sprouse, Sr., and Bob Billups stole a trunk of merchandise from the Chicago, Rock Is-' land & Pacific Railway station at Comanche, in Stephens county, in January, 1910.
    On behalf of the state, witness Loucine Gilmore testified: That on January 31, 1910, he was clerk at the depot in Comanche that he knew Bob Sprouse and Bob Deaton; that Bob Sprouse came to the depot and got a trunk, an unusually large black trunk; that he presented a check corresponding to that attached to the trunk; that upon .the authority of the corresponding. check he delivered the trunk in the depot to Sprouse; that he had not seen the trunk since that time except in the sheriff’s office. On cross-examination he testified: That he did not see the defendant Bob Deaton, at the time Sprouse came and got the trunk; that Deaton did not apply for the trunk; that McDonald, a Rock Island detective, was there at the time, also a boy about five or six years old; that he talked to Sprouse about his getting such a good looking trunk; that Sprouse didn’t tell him to whom the trunk belonged.
    Witness J. D. Waters testified: That in January, 1910, he lived at Waurika and was night baggage man at the Rock Island depot; that he remembers the trunk in question being delivered for transportation at Waurika, and he heard of complaints of the trunk, which belonged to Mis. Susie Fields Hunter, being missing; that the trunk was checked from Waurika to Oklahoma City; that it was delivered to him by Arch I-Iunter; that the trunk delivered to him at Waurika was the same one he afterwards saw in the sheriff’s office; that it was delivered to him at Waurika on the 9th day of January; that he did not know Bob Deaton or Bob Billups.
    Witness Mrs. Susie Fields Hunter testified: That she lived in Waurika in January, 1910, and was the owner of a large black trunk with steel hinges at that time; that she had started to Missouri and went by Oklahoma City and checked the trunk from Waurika to Oklahoma City on the 9th day of January; that the trunk did not arrive at its destination; that the next time she saw it, it was in Billups’ possession; that it was then brought to the sheriff’s office; that it contained ladies’ wearing apparel, children’s wearing apparel, linen, cut glass, clock, and shotgun; that the market value of the property in the trunk was $350 or $400; that she paid $27 for the shotgun; that she did not give permission to Sprouse, Deaton, or Billups to take the trunk; that she afterwards saw part of the contents of the trunk at Bob Billups’ house. On cross-examination she testified that she knew Bob Deaton at the time she lost the trunk.
    Witness Mrs. Bob Sprouse testified: That in January she lived a mile and a half north of Comanche; that she knew Bob Deaton and Bob Billups at that time; that in the month of January her husband brought a trunk to their house, about 5 o’clock in the evening; that Bob Billups and Bob Deaton came out there and took the trunk away; that this occurred about 9 o’clock in the evening; that, when she went in the house, Deaton and Billups had taken the contents out of the trunk; that the trunk had not been opened prior to the time Deaton and Billups arrived; that she did not hear Deaton say anything about the trunk; that she told them to take the trunk away; that Bob Billups took the gun; that he left some of the things on the floor; that Deaton and Bob Billups carried the trunk out. On cross-examination she testified that when she went in there Bob Billups was taking the contents out; that she did not know who was driving the team; that Billups did the talking.
    Witness Robert Sprouse, Jr., testified: That he is the son of Robert Sprouse, Sr., and that he is nineteen years old; that in January he lived one and a half miles north of Comanche, and knew Bob Deaton and Bob Billups; that in January his father came home with a trunk one evening; and that night Bob Deaton and Bob Billups came out and got it.—
    “Did you hear what was said? A. Not much. They said they would open it and see what was in it. * * * Q. Was anything said about ‘Let’s open it and see if there is any money in it’? A. Yes. Q. Do you know which one of the boys said that? A. No, sir. I think it was Bob Deaton that said, ‘Let’s see if there is any money in it.’ ”
    • — That thejr took the trunk and contents away about 9 o’clock that night. On cross-examination he testified that he did not know Deaton’s livery team except one of the horses; that Bob Deaton untied the horses and got into the buggy.
    Robert Billups, a codefendant, testified: That in January he lived in Comanche; that he is one of the defendants in the case; that he knew Bob Deaton and Bob Sprouse at that time; that the trunk found in his possession he got at Bob Sprouse’s.
    “Q. Tell the jury all you know about that trunk and how you came in possession of it. A. Bob Deaton met me as I was going home from work that afternoon, and asked me if I wanted to take a drive that night, and I said I didn’t care, and I asked him how' far he wanted to go, and he said two or three miles, and I went home and came back, and we drove out, and I got possession of this trunk.”
    ■ — That at the time he asked witness to go with him the defendant did not say where he was going, but told witness to come to defendant’s father’s livery stable; that he went there and got into the buggy and drove to the place defendant told witness to meet him; that he did meet witness by the bridge; that they found the trunk at Sprouse’s house; that as they drove out there defendant told witness that he had a trunk out there; that he had not given any one a check for that trunk that day or any other time; that as they drove back defendant told witness that he had no place to put the trunk and did not know what to do with it, and witness told defendant that he would take it to his housq and keep it until he had a place for it; and that that was where the officers found it; that the .shotgun was pawned to L. E. Toney, and that the defendant at the time was paid $5 of the $13 received for .the shotgun; that he had an idea that the trunk was stolen; that he and Deaton talked about it; that from what defendant said witness supposed defendant knew it was stolen; that the shotgun was the only thing that was disposed of out of the trunk; that witness was indicted on another charge for another trunk. And on cross-examination testified: That he had seen the trunk at the depot the day before he went out to Sprouse’s that night; that he thinks the trunk in question, together with another trunk, with the larceny of1 which witness is charged, came to the Comanche depot together; that he did not give Bob Sprouse a check for the trunk, and therefore <Jid not see the check to the trunk; that he noticed the trunk at the depot because it was an unusually large 1ooking trunk; that Bob Deaton asked witness to go to Sprouse’s that night; that he did not go to Deaton’s livery barn to hire a livery team; that he did not ask Donaldson to go with him out in the country; that he first saw Deaton that night at the livery barn; that Deaton stopped witness at the door of the livery barn; that he carried the trunk from Sprouse’s to his home; that the contents were left at his home except the shotgun which witness pawned; that he told defendant that he would like to get the trunk moved from his house, but defendant did not come after it; that he was not in Comanche when the train bringing the trunks arrived there; that he was not in Waurika on the night before the trunks arrived at Comanche the next morning; that he'gave Jim King a part of the money secured for the shotgun; that on the same day this large trunk was taken to Sprouse’s witness and defendant Deaton together carried a small trunk to witness’ house; that defendant came to witness and told witness that he (defendant) had a trunk that he wanted to bring to witness’ house; that the trunk was at the depot; that defendant told witness he (defendant) had no place to keep the trunk and wanted to take it to witness’house. And on recross-examination testified: That Deaton came to his house and that is the place where he had the conversation with Deaton on the 10th of January; that this happened before they went to Sprouse’s; that defendant and witness carried the trunk in their hands a little after sundown; that he did not have a check for the trunk, but that Deaton did.
    On behalf of the accused, witness Clint Bounds testified: That after the trunks arrived» at the depot in Comanche Bob Billups presented a check for one of them; that he did not see Deaton there at. the time; that Billups pointed out another trunk at the depot but did not say anything about a check; that Billups after giving witness the check for the trunk rolled it out on the platform; that he did not know who helped cany the trunk away.
    Witness Clarence Donaldson testified: That some time in January Bob Billups asked him if he wanted to go riding; that he was going up north of town. On cross-examination he said that nothing was said about a trunk.
    Witness Jim King testified: That in January he and Billups went to Waurika; that they were going to pull off a deal at Comanche; witness was working for the Rock Island as a secret service man; that Billups showed witness some checks; that witness and Billups sent some checks to Mr. Faucett, the man for whom witness was working; that Billups told witness that he had changed a check on Mrs. Field’s trunk at Waurika; that Bob Deaton furnished some information to witness as to the trunks; that after the trouble came up Billups wanted to lay the crime onto Deaton; that he does not know what Billups did with the money he got for the shotgun which he pawned. And on cross-examination testified: That he had been discharged from the Rock Island service charged with stealing; that the Rock Island people had told him to steal stuff with people whom he believed to be stealing.
    Witness L. E. Toney testified: That Billups pawned the shotgun to him; that he gave $13 for it.
    The accused in his own behalf testified: That he was employed by Billups to take a team and buggy and go to Sprouse’s for the trunk, and denied the testimony of the state; that Billups asked witness to load the trunk onto the buggy; that he did so. That he told the secret service man of the fact that he heard the trunks had been stolen; that he did not get any of the money secured for the gun. On cross-examination he testified: That he had known Mr. Billups about five or six years prior to the trunk trouble. He denied any knowledge as to- the fact that the trunk was stolen, but the kind of trunk aroused his suspicions; that Mrs. Sprouse said she wanted to get the stuff away from there, but did not say that it was stolen; that they went after the trunk about 7:30 or 8 o’clock and got back about 9 o’clock; that he did not know whether the trunk was stolen or not at the time, but his suspicions were aroused; that when he was searched after being charged with the crime there was found in his clothing at least one check, but he did not know whether there was more than one; that when they searched his house he had a duplicate check there; that he also had one on his person; that a lady who had driven out in the country had left one of the checks with him.
    In rebuttal on behalf of the state, witness Mrs. Bob Sprouse testified: That Bob Billups and Deaton came into the house together; that Bob Deaton was in the house all the time.
    And witness, Bob Sprouse, Jr., her son, testified that Bob Billups and accused, Deaton, came to their house together, and came in together; that they were together all the time, and left together.
    Special Officer McDonald and Deputy Sheriff Thompson testified that they searched the premises of the accused, Deaton, by authority of a search warrant, and found two or three trunk checks, one from Chico, Tex., one from Sugden, and one from Walter or Hastings; that one of these was a string check with a duplicate on it. McDonald testified further that he was never able to locate the property that these checks called for.

      Wilkinson & Speer and A. W. Reynolds, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., and C. J. Davenport, for the State.
   ARMSTRONG, J.

(after stating the facts as above). The facts disclosed by this record would have warranted the jury in reaching the conclusion that Billups, the accused, and Sprouse were in a conspiracy wherein baggage checks were to be changed by them, and the destination of such baggage changed to Comanche, and the property contained in such packages stolen and appropriated to the use of these parties.

Billups was in the drayage business. It is but natural and reasonable for the jury to conclude that if he was the only person interested in the stolen property found at the home of Sprouse he would have used his own team and wagon for the purpose of getting the trunk and contents to and away from Sprouse’s. The proof shows, however, that instead SproUse carried the trunk home and a buggy was secured from the livery stable of the accused’s father to take it away. The time this team was secured and the drive made was very suspicious. It was in the nighttime. They went to the home of Sprouse and went through the trunk together, the accused saying, “Let’s see whether there is any money it it.” He pleads innocence, but acknowledges that there was much suspicion that something was wrong. The trunk was.an unusually large one containing wearing apparel indicating that the owner was not one occupying the same station in life as that occupied by the accomplice Billups. The accused had known Billups for years, and the jury was warranted in concluding that he knew Billups was not the owner of any such trunk or property, and had no occasion for leaving the same with Sprouse. His actions are inconsistent with innocence. He profited by receipt of $5 of the $13 received for the .shotgun. The checks found in his possession, which are the evidence of right to the possession of baggage, are the tools necessary to perpetrate a crime of this character. Other checks were found in his trunks, not at the iivery stable, but in his father’s home. He explained possession of only one of them. These checks appear to have been evidence of a system or scheme to secure possession of the trunks, as was done in the case under consideration. What inferences and legitimate conclusions the jury came to are not before this court. But under all the facts they found the accused guilty, and we think justly so.

■In Alderman v. Territory, 1 Okla. Cr. 562, 98 Pac. 1026, this court said:

“Where a defendant is convicted on testimony of an accomplice, and the evidence is clear and direct, this court will not reverse the judgment of the lower court unless it is able to say that the record does not contain any evidence independent of the testimony of the accomplice which tends to connect the defendant with the commission of the offense.”

This is a stronger statement of the rule than is necessary for the purpose of the case under consideration. In so far as the testimony is concerned, the Alderman case is sufficient authority for affirmation of the case at bar.

The question of the sufficiency of the evidence was presented to the trial court by demurrer to the evidence and in motion for a new trial. The trial judge found the evidence sufficient, and, although the evidence is contradictory in some respects, this court has not the advantage of viewing the witnesses as they testify, and judging as to whether such witnesses were giving truthful testimony. The issues of fact are disputed. The testimony tends reasonably to support the verdict of the jury. This court will not undertake to review the evidence so far as its weight and the credibility of the witnesses are concerned. Moore et al. v. State, 4 Okla. Cr. 212, 111 Pac. 822; State v. Maben, 5 Okla. Cr. 581, 114 Pac. 1122; Kerkendall v. State, 5 Okla. Cr. 570, 115 Pac. 612.

The other assignments urged are without merit. They each involve questions heretofore disposed of by this court.

The judgment of the trial court is affirmed.

FURMAN, P. J., and DOYLE, J., concur.


author: FURMAN", P. J.

text:
    JOHN GONZALUS v. STATE.
    No. A-1202.
    Opinion Filed May 25, 1912.
    (123 Pac. 705.)
    1. APPEAL — Waiver of Objections. 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.
    2. EVIDENCE — Admissibility — Joint Defendants. Where two or more defendants are jointly upon trial, any evidence is admissible which legally tends to prove that either of the defendants is guilty of the crime charged, although such evidence might not be admissible against the other defendant or defendants if they were being separately tried.
    3. TRIAL — Joint Defendants — Evidence Admissible as to One — Instructions. Where two or more defendants are being jointly tried for the commission of an offense, and any evidence is introduced which tends to prove the guilt of one of the defendants, and which is admissible for that purpose, but would not be admissible against the others if they were separately tried, it is the duty of the trial court to admonish the jury that they should limit their consideration of such evidence as tending to prove the guilt of the defendant against whom it was admitted, but that they should not consider it as testimony against the other defendants.
    4. SAME — Joint Indictment — Election—Separate Trial. Where two or more defendants are jointly indicted for a felony, any of such, defendants requesting it must be tried separately. In this way, either of the defendants can prevent the reception of any evidence, except that which is admissible against him alone. But where such defendants elect to be tried jointly, they cannot be heard ’ to object to the introduction of evidence which is admissible against any of them, upon the ground that it would not be admissible against some of the defendants if tried separately.
    5. EVIDENCE — Admissibility—Instructions. Where the admissibility of evidence presents a mixed question of law and fact, it is proper for the court to submit the admissibility of sueb evidence to the jury in the instructions, and inform them that, if they find, under the rules given by the court in such instructions, that such evidence was admissible, then they should consider it in determining the question of the guilt or innocence of the defendant; but, if they do not so find, they should reject such testimony and not consider the same against the defendant.
    (Syllabus by the Court.)

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

    John Gonzalus was convicted of murder, and appeals.
    Affirmed.

      Jennings & Ross, for appellant.

      Smith C. Matson, Asst. Atty. Gen., Joseph I,. Hull, and. W. C. Henderson, for the State.
   FURMAN", P. J.

In this case, the appellant, John Gonzalus, and one Lorenzo Bentz were jointly prosecuted by information for the murder of one A. M. 'Mitchell. Upon the trial, the defendant Lorenzo Bentz was found not guilty by reason of insanity; but appellant was convicted of murder, and his punishment was assessed by the jury at imprisonment in the state penitentiary for life.

A great number of questions were brought up to this court by the petition in error; but in the brief filed by counsel for appellant only one question is raised. The • other assignments of error, therefore, have been abandoned. See Price v. State, 5 Okla. Cr. 147, 113 Pac. 1061; Warren v. State, 6 Okla. Cr. 1, 115 Pac. 812; Morrison v. State, infra, 123 Pac. 169.

Upon the trial of this case, the state introduced in evidence •a confession made by the defendant Lorenzo Bentz. To this confession counsel for the defendants objected, first, that it was hearsay testimony; second, that the confession was not a voluntary statement upon the part of the defendant Lorenzo Bentz, but was obtained from him by undue influence; third, because the defendant Lorenzo Bentz, by reason of his mental infirmity, was incompetent to testify as a witness. The first objection is not well taken. This confession certainly was not hearsay as agáinst the defendant Bentz; and, as they were jointly tried, the fact that it was hearsay as to appellant in no manner affected its admissibility.

Section 6830, Comp. Laws 1909, is as follows:

“When two or more defendants are jointly indicted for a felony, any defendant requiring it must be tried separately. In other cases defendants jointly prosecuted may be tried separately or jointly, in the discretion of the court.”

If appellant had desired it, under this section, of the statute, he could have secured a separate trial. Upon such separate trial of appellant, this objection would have been good; but, as he elected to be tried with his codefendant, Bentz, he cannot now be heard to complain that the confession of Bentz was hearsay. After the testimony of the confession was admitted, the court said to the jury:

■ “Gentlemen of the jury, with reference to the testimony of this witness as to the conversation had between this witness and Bentz and the party referred to ai> Harkins in the presence of the defendant Bentz, you will not consider this as being testimony in this case against the defendant John Gonzalus, but only consider it as testimony in the case against the defendant Lorenzo Bentz.”

The court went further, and in its instructions to the jury informed them that'they could not consider the confession of Lorenzo Bentz as evidence against the defendant John Gonzalus. This was all that appellant had a right to demand.

“When A's confession, for example, implicates also a co-defendant, B, it is allowed to be read against A, under express instructions to the jury not to consider it as affecting B.” (Wig-more on Evidence, sec. 1076.)

See, also, Commonwealth v. Blood, 141 Mass. 571, 6 N. E. 769; Commonwealth v. Rogers, 181 Mass. 184, 63 N. E. 421; Blackman v. State, 36 Ala. 295; Commonwealth v. Bishop, 165 Mass. 148, 42 N. E. 560; State v. Cram, 67 Vt. 650, 32 Atl. 502; State v. Fournier, 68 Vt. 262, 35 Atl. 178.

There is absolutely nothing in this record to indicate that the jury did not obey the instructions of the court. It is not contended by counsel for appellant that their client is not guilty of the charge of which he was convicted, and that the legal evidence in the case does not fully sustain the verdict of the jury. We are of the opinion that if the jury had considered the confession of Lorenzo Bentz as evidence against appellant they would have assessed his punishment at death. Verdicts previously rendered in the district court of Comanche county establish the fact that juries of that county fearlessly discharge their duty without reference to sickly sentimentality, and do not. hesitate to-inflict the penalty of death where it is warranted by the law and evidence. The fact that appellant was not sentenced to death shows that this jury followed the instructions of the court in considering the guilt or innocence of appellant, and excluded the confession of the defendant Lorenzo Bentz and confined themselves entirely to the testimony which was legally admitted against appellant.

The second and third objections to the confession of the defendant Lorenzo Bentz need not be discussed at length, because they in no manner affect the rights of appellant. Only those persons can be heard to complain of an errot in the ruling of a trial court who have been injured thereby.. We will state, however, that we have examined the record, and find that the trial court was fully justified in the ruling made.

The trial court, through abundant caution, gave the following instruction to the jury with reference to the evidence complained of:

“Some evidence has been introduced in this case tending to prove that on the Monday following the homicide that the defendant Lorenzo Bentz made a confession to and in the presence and hearing of S. A. Elrod, James Harkins, Frank Cox, Tom Barker, and Holden Miller, in which confession he stated that he was present when the homicide was committed and at the time and place charged in the information, and that he participated in the killing of the deceased, and that the deceased was killed by shooting with a pistol and beating with a hammer, as charged in the information; and in reference to such confession of the defendant Lorenzo Bentz the court charges you as follows: ‘That, before you can consider such confession as evidence against the defendant Lorenzo Bentz, you must find from the evidence, beyond a reasonable doubt, that he made such confession, and that the same was voluntarily made on his part, and by being voluntarily made is meant that he made the same without duress, or inducement, promise, threat, or advice, or influence overcoming his will, and that at the time he made the same he was of sound mind (that is, that he possessed such mental poise as to render him capable of knowing right from wrong and the nature and quality of his sayings and doings at the time), and if you so find, beyond a reasonable doubt, then you are to consider such confession in passing upon the guilt or innocence of the defendant Lorenzo Bentz; but you are instructed that you cannot consider such confession as evidence against the defendant John Gonzalus.5 55

This instruction was more favorable to the defendant than the law requires, because it required the jury to find, beyond a reasonable doubt, the existence of the facts which would make such testimony competent. The doctrine of reasonable doubt does not apply to such issues, as will be seen from, the following cases:

In the case of Walker v. State, 7 Tex. App. 264, 32 Am. Rep. 595, that court said:

“The question as to whether this confession was freely and voluntarily made was, it seems, twice passed upon in the trial; first by the judge, when he admitted it in evidence, and then again by the jury under the following charge from the court: ‘In regard to the evidence of the confession of the defendant, you are charged that you will consider such evidence, if you find that one was freely and voluntarily made by defendant after he had first been cautioned that such confession might be used against him; but if you. believe that defendant made a confession, but it is not shown to have been freely and voluntarily made, or if it is shown by the evidence to have been made upon compulsion or persuasion, you will reject it from your consideration in making up your verdict.’ Whether it was a question alone for the judge or alone for the jury to pass upon, it is unnecessary to decide, since it seems to have been passed upon by both. Hauck v. State, 1 Tex. App. 357; People v. Estrado, 49 Cal. 171.”

The same doctrine was reaffirmed in the case of Nichols v. State, 32 Tex. Cr. App. 391, 23 S. W. 680.

In the case of Rains v. State, 33 Tex. Cr. App. 297, 26 S. W. 398, the court said:

“This is a conviction for arson. Without the confession of the accused, the evidence is not sufficient to support this conviction. Deputy Sheriff Watts swears that he cautioned accused, and, this being so, the confessions were admissible; but there are strong circumstances in this record which tend to show that Watts had not cautioned the defendant at any time. Under this condition, the court should have instructed the jury that, if they believed, that Watts had cautioned the accused before the latter made the confession, then such confession should be considered by them, together with all other evidence before them; but, if they believed that the accused had not been so cautioned, they should entirely disregard the confessions.”

This opinion was by Judge Hurt, than whom no appellate judge ever more carefully guarded the technical rights of a defendant.

This court in the case of Coleman v. State, 6 Okla. 252, 118 Pac. 594, sustained the action of the trial court in submitting the materiality of certain testimony to the jury in a perjury case, where the materiality of such testimony was a mixed question of law and fact. Even if we were in doubt as to the admissibility of this evidence, which we are not, this doubt would be conclusively resolved against the defendant by the fact that it was submitted to the jury by the instructions of the court.

We have looked over the entire record in the case, and do not find any material error therein. The habit of reversing cases upon light and trivial grounds is to be reprehended iron} every standpoint. 'While it is true that a price should ne'ver be placed upon the administration of justice, and no man who has been unjustly convicted should ever be denied a rehearing simply upon the ground of the expense of a second trial, yet this court will take judicial notice of the fact that the people of this state are already heavily burdened with taxation, and that one of the principle items of expense to the state is the enforcement of its criminal laws. It would therefore be unjust to the people of this state to add to this expense by reversing convictions and sending cases back for rehearing, and thereby greatly increasing the expenses of the government, unless a necessity for doing so really existed.

From a careful examination of the entire record, we believe this man is guilty -of murder; and that he has been fairly tried and legally convicted.

The judgment of the lower court is therefore, in all things, affirmed.

ARMSTRONG and DOYEE, JJ.f concur.


text:
    J. B. WINES v. STATE.
    No. A-1016.
    Opinion Filed June 1, 1912.
    1. INDICTMENT AND INFORMATION — Complaint — Variance. Const., art. 2, sec. 17, prescribes that: "No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having . waived such preliminary examination." Held, that if an accused, on being brought before the examining magistrate, waives his right to a preliminary examination, and it appears that the charge in the preliminary complaint is substantially the same as that set forth in the information filed by the county attorney in the district court, a plea of a want of a preliminary examination, or a variance between the preliminary complaint and the information, is unavailable.
    2. RAFE — Degree of Crime — Second Degree. An act of sexual intercourse accomplished with a female, not the wife of the perpetrator, over the age of fourteen years and under the age of sixteen years, is rape in the second degree, whether such act is accomplished by means of force or violence sufficient to overcome any resistance she might make, or with her consent.

      3. SAME — Resistance. Where the evidence on the part of the state tended to show an act of sexual intercourse without the consent and against the will of the prosecutrix, and that she was prevented from resisting through fear, this under the statute could only be rape in the second degree, and a conviction on a verdict of guilty of rape in the first degree will be set aside as contrary to the evidence.
    4. SAME — Threats—Fear. Under the fifth subdivision of section 2353, Comp. Laws 1909, defining rape, in order to convict where resistance is not shown, there must be evidence tending to show that the defendant made threats of immediate great bodily harm to the prosecutrix, accompanied by apparent power of execution, which at the time was apparent to her; and that prosecutrix believed at the time such threats were made that they would be carried into execution if she did not submit to the act.
    . (Syllabus by the Court.)

      Appeal from' District Court, Washita County; James R. Tolbert, Judge.

    J. B. Wines was convicted of rape in the first degree, and appeals.
    Reversed.
    . The plaintiff in error was convicted of the crime of rape in the first degree and sentenced to ten years’ confinement at hard labor at the state prison. The judgment and sentence were pronounced and entered on the 12th day of November, 1910. From the judgment and orders overruling motions for new trial and in arrest of judgment, the defendant appealed by filing in this court on February l1?1, 1911, a petition in error with case-made.
    The defendant was a farmer, 50 years of age. He had lived continuously for over eighteen years on his homestead about fourteen miles southwest of Cordell. He was never before accused of any crime, and he had served as deputy sheriff of Washita county four years. His only child, a boy, died; and being in Ft. Worth with his wife in January, 1904, or 1905, they went to the Benevolent Orphans’ Home for the purpose of adopting a boy. Finding no boy suitable, the matron of the home induced them to take the prosecutrix; stating her age to be, in her presence, eleven years. They brought her to their homestead in Washita county and sent her to school and cared for her until July 21, 1910, when she left, and the next day filed a complaint against the defendant charging rape.

      The evidence for the state tended to prove the following facts: The complainant, Willie T. Dekle, testified that prior to July 20, 1910, she had lived for over five years with Mr. and Mrs. J. B. Wines on their homestead; that prior-to that time she stayed about three months at the Orphans’ Home at Ft. Worth; had lived with her mother for about two years before being placed in the Orphans’ Home; during that time was on the stage for several months; had lived a year with an old couple in Minnesota; had lived three or four years with an aunt in Alabama; that she was born at Houston, March 23, 1895, and was fifteen years of age. She further testified that Mrs. Wines went on a visit to Tillman county, July 15th; that on Saturday night after Mrs. Wines went away the defendant came to her room and attempted to have sexual intercourse with her, hut that he did not do as he intended that night; that the next night he did not disturb her; that on Monday night he tried to persuade her to consent to sexual intercourse, but did not accomplish his purpose. That Tuesday night he again came to her room, and through fear she submitted. That this was the first time he had sexual intercourse with her. That the next day, Wednesday, she went with the defendant to the town of Sentinel in a buggy; that he left her at Ramsey’s store, telling her to stay there until he returned ; that she stayed there a while, then went out on the street and met him and told him that she was going to visit Mrs. Davies; that he told her to hurry back. That she found that Mrs. Davies was not at home, and she went to Mrs. McAtee’s, where Mrs. Davies was visiting, staying there about two hours, then returned to Ramsey’s store; that she did not tell Mrs. Davies what defendant had done, because the defendant and Mr. McAtee were great cronies and she was afraid to say anything about it to Mrs. Davies before Mrs. McAtee. She rode back with the defendant to their home that evening, and that night the defendant came to her-bed again and begged her to let him do as he wished to, but she would not consent; that he stayed there until about 12 o’clock; that all she could do was to push him away and beg him to let her alone; that he finally overpowered her and had sexual intercourse with her. That this was the second and last time. That when she was thirteen years old the defendant tried to persuade her to allow him to have sexual intercourse with her; that his wife heard part of what he said; that she went to singing school short terms for several years, and the defendant always went with her; that on these occasions he had never insulted her. That she had secured two letters from her mother about two months before leaving the defendant, and this was the only time she had heard from her mother while living with the defendant; that the defendant had whipped her for writing letters to young men and had forbidden her to keep company with young men; that she was engaged to be married to a neighbor's son, Otis Higgenbottom, and the defendant would not permit her to marry him; that the defendant, worked in the field Tuesday and Wednesday, and a neighbor, Mr. Ne-Smith, came there for grain and talked to her on Thursday while the defendant was in the field; that Thursday afternoon the defendant said she could go and visit Mrs. Jayrose; that when she went to Mrs. Jayrose she told her how the defendant had mistreated her. That she did not return to her home, but went to 'Cordell the next morning and swore to the original complaint, and three or four days later sued the defendant for $10,000 in the district court of Washita county as damages for his mistreatment of her.
    Mrs. Lettie Jayrose testified that she lived a quarter of a mile from the defendant; that the prosecutrix came to her home July 21st, and after staying there about an hour told her the •defendant had mistreated her; that the defendant called that •evening and asked where prosecutrix was.
    C. N. Cook testified that he lived about half 'a mile from the defendant; that prosecutrix was there on the evening of July 21st and told him that the defendant had mistreated her.
    Mrs. Bunch Carter testified that she lived at Pine Apple, Ala., and was prosecutrix’s aunt; that after prosecutrix was two years old she lived with her for three or four years; that the date of her birth was March 23, 1895. On cross-examination she identified four letters that she had written at various times, wherein she stated prosecutrix was born March 24, 1894. In explanation she stated that she was mistaken about prosecutrix’s age when she wrote the letters; that prosecutrix’s mother was living, but, owing to the fact that she was a public woman, they did not disclose to her the place where her daughter, the prosecutrix, lived.
    Two doctors testified that on July 26 th they examined prosecutrix and found there was no hymen, but that there were no bruises, lacerations, or inflammation of her genital organs; that their examination was made by request of the prosecution.
    Mrs. Varna Davies testified that she had known prosecutrix for about six years; saw her on the 20th day of July at Sentinel; was with her a couple of hours; she acted perfectly calm while she was in her presence; that was at the home of Mrs. McAtee.
    On behalf of the defendant, T. H. NeSmith testified that he was at the defendant’s place on Thursday and saw prosecutrix on the porch; did not see anything wrong, and she did not make any complaint; that the defendant was at the time harrowing in the field about half a mile from the house; that he also saw her Wednesday morning in the pasture driving up the cows, but did not see the defendant at that time.
    Miss Rosa Higgenbottom testified that a .few days after prosecutrix came to this county they were going to school together, and prosecutrix said she would be eleven years old her next birthday. That they were together often, and several times conversed about the difference in their ages; that witness will be seventeen in November.
    Mrs. Fannie Wines testified that she was the wife of the defendant; that she did not overhear any insulting language used by" the defendant to prosecutrix when she was thirteen years old, and prosecutrix had never told her of any mistreatment of her by the defendant. That when she returned she found the nightgown and pair of drawers 'between the mattress and the springs of the bed in prosecutrix’s room; that they were not torn nor stained; that she gathered prosecutrix’s clothes for Mr. Day and Mr. Allen, who came after them/ and put all she could in 'the trunk, • and they said that was all they could take; that she afterwards carried other clothes to prosecutrix, and that some of her clothes were there yet.
    The defendant was a witness on his own behalf and denied that he had been guilty of any misconduct towards the prosecuting witness. It appears that the mother of the prosecuting witness was a public woman, conducting a house of prostitution at Ft. Worth for many years.

      Smith & Wagoner, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson and B. G. Spilman,. Asst. Attys. Gen., for the State.
   DOYLE, J.

The information contains two counts. The first charges that in Washita county on or about the 20th clay of July, 1910:

“Did then and there, willfully, unlawfully, intentionally, feloniously, make an assault in and upon one Willie T. Dekle and ravish and have sexual intercourse with the said Willie T. Dekle, a female not the wife of the said J. E. Wmes, and said act of sexual intercourse being then and there feloniously accomplished by the said J. B. Wines, with the said Willie T. Dekle, by force and violence without the consent and against the will of the said Willie T. Dekle. The said Willie T. Dekle resisting said J. B. Wines to prevent said act of sexual intercourse, but her resistance being overcome by the said J. B. Wines by force and violence contrary to,” etc.

Anjr by the second count it was charged that:

“On or about the 20th day of July, 1910, same being the time, place, and by the same act mentioned and'set out in the first count of this information, commit the crime of rape in and upon one "Willie T. Dekle, the person mentioned and set out in the first count of this information in the manner and form as follows, to wit: Did then and there, willfully, unlawfully, intentionally and feloniously commit an act of sexual intercourse accomplished with the said Willie T. Dekle, a female, and did then and there carnally know her and have sexual intercourse with her; the said Willie T. Dekle being then and there at the time of having said sexual intercourse as aforesaid with the said J. B. Wines under the age of sixteen years, and the said Willie T. Dekle was then and there not the wife of the said J. B. Wines at the time of said act of sexual intercourse, contrary to,” etc.

Upon arraignment the defendant filed a motion to quash the' first count of the information, for reasons in substance as follows : That said count is in conflict with section 17 of art. 2 of the Bill of Rights of the Constitution of the state, in that said count charges the defendant with the commission of the crime of rape in the first degree, said defendant never having a preliminary examination before a committing magistrate on any such charge, nor ever having waived such preliminary examination. Second. That on the 22nd day of July, 1910, a complaint was filed in the county court of Washita county charging the defendant with the crime of rape on or about the 19th day of July, 1910, with one "Willie T. Dekle, a female under sixteen years of age and not the wife of the defendant, and pursuant to said complaint a warrant was issued and the defendant arrested. On the 24th day of July he was arraigned on said complaint, waived a preliminary examination, and was bound over to await the action of the district court. Which motion was duly-verified by the defendant. The overruling of this motion by the trial court is assigned as error.

Section 17 of the Bill of Rights prescribes:

“No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination.”

That the defendant did not have a preliminary examination before an examining magistrate, or did not waive such preliminary examination, is a fact to be established by the defendant oni a plea in abatement or on a motion to quash. Williams v. State, 6 Okla. Cr. 373, 118 Pac. 1006.

The defendant having waived his right to a preliminary examination, and no testimony having been taken, the county attorney was authorized to file an information in the district court for the offense charged in the preliminary complaint before the examining magistrate. The preliminary complaint in this case charged the crime of rape, and was sufficient to sustain either count of the information filed in the district court. There can be no question but that the defendant’s constitutional right to a preliminary examination was fully accorded in this case, and that the trial court properly overruled the motion to quash the information.

Certain assignments of error are predicated upon the rulings of the trial court in admitting and excluding evidence. No xiseful purpose would be served in discussing those in detail, for the reason that on the undisputed facts, in our opinion, the verdict of guilty of rape in the first degree is contrary to the law and to the evidence.

Rape and its degrees are defined in our Penal Code as follows:

Section 2353, Comp. Laws 1909:

“Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances: First. Where the female is under the age of sixteen years. Second. Where the female is over the age •of sixteen years and under the age of eighteen, and of previous chaste and virtuous character. Third. Where she is incapable, through lunacy or any other unsoundness of mind, whether temporary or permanent, of giving legal consent. Fourth. Where she resists, but her resistence is overcome by force and violence. Fifth. Where she is prevented from resistance by threats of immediate and great bodily harm, accompanied by apparent power of execution. Sixth. Where she is prevented from resisting by any intoxicating, narcotic, or anesthetic agent, administered by or with the privity of the accused. Seventh. Where she is at the time unconscious of the nature of the act, and this is known to the accused. Eighth. Where she submits under a belief that the person committing the act is her husband, and this belief is induced by artifice, pretense or concealment practiced by the accused, or by the accused in collusion with her husband with intent to induce such belief. And in all cases of collusion between the accused and the husband of the female, to ■accomplish such act, both the husband and the accused.shall be deemed guilty of rape.’’

Section 2356:

“Rape committed upon a female under the age of fourteen years, or incapable, through lunacy or any other unsoundness of mind, of giving legal consent, or accomplished by means of force overcoming her resistance, is rape in the first degree.”

Section 2357:

“In all other cases, rape is of the second degree.”

Section 2358:

“Rape, in the first degree is punishable by imprisonment in the state prison not less than ten years.”

Section 2359:

“Rape in the second degree is punishable by imprisonment in the state prison not less than five years.”

In order to support a conviction of rape in the first degree under the first subdivision, it must appear from the evidence that the female was under the age of fourteen years; and under the fourth subdivision, it must appear from the evidence that the defendant, with force and violence sufficient to overcome any resistance she might make, accomplished the act of sexual intercourse.

It is. undisputed that at the time in question the prosecutrix was over the age of fourteen years. -An act of sexual intercourse accomplished with a female, no.t the wife of the perpetrator, over the age of fourteen years and under the age of sixteen years, is rape in the second degree, whether such act is accomplished by means of force and violence sufficient to overcome any resistance she might make, or with her consent. The law conclusively presumes that the female, being within the age fixed by the statute, is incapable of consenting,, and therefore the act is by force and violence.

Where the female is over the dge of sixteen years and under the age of eighteen years, and of previous chaste and virtuous character, it is also rape in the second degree; yet the defendant may be charged, as in the first count of this information, with rape in the first degree, where the proof shows the female to be over sixteen years of age and the qualifying clausé of the second subdivision has been omitted.

The anomalous provision in the Penal Code that makes the offense rape in the second degree is commented on in the case of Myers v. State, 6 Okla. Cr. 389, 119 Pac. 136.

While the evidence on the part of the state tended to show that the prosecutrix was under the age of sixteen years, the evidence offered by the defendant tended strongly to show that she was over the age of sixteen years.

The testimony on the part of the state tends to show two acts of sexual intercourse without the consent and against the will of the prosecutrix, and that she was prevented from resisting through fear. This, under the statute, could only be rape in the second degree. To support a conviction for rape in the second degree, under the fifth subdivision, the evidence must show threats of immediate and great bodily harm, accompanied by apparent power of execution. Not only this, but the prosecutrix must have believed at the time that such threats would be carried into execution if she did not submit to the act. Nothing less would justify a conviction. If the verdict had been rape in the second degree, we would yet have great doubt whether it should be upheld, under the evidence in the case.

The testimony of the prosecutrix that the defendant had sexual intercourse with her, and that she submitted through fear or the dread of greater violence, is without corroboration of any kind, and, while the testimony of the prosecutrix, uncorroborated, may be sufficient to justify a conviction for rape under our statute, in order to do so her testimony should stand unimpeached. The. evidence shows that her person bore no marks or bruises, and that her underclothes were neither stained nor torn; that she was examined by two physicians on the request of the .prosecution a few days after the alleged outrage, and they found no injuries, laceration, or inflammation of her genital organs, except the absence of the hymen, and they did not undertake to determine or state the cause of its absence. On their cross-examination they stated that the absence of the hymen does not of itself prove that a woman has had-sexual intercourse. From their testimony and that of other physicians who testified as experts on the part of the defendant, indications of a recent rupture of the hymen will last from eight to twenty days. The testimony of the physicians, taken as a whole, tends to discredit the testimony of the prosecutrix as to the violation of her person. The evidence shows that the home of the defendant was near a public road; that the doors and windows of the house were open day and night; that defendant each day worked on his farm, distant from the house, and that there was no time after the first attempt to ravish her that prosecutrix testifies to, that she could not have left the defendant’s home and gone to the neighbors for protection. That there was nothing unusual in her appearance to the lady she visited at Sentinel the day following the alleged outrage, and her failure to disclose the fact of the alleged outrage at the first opportunity is a strong circumstance casting great discredit on her testimony and tends strongly to disprove the truth of the accusation. It is the natural impulse of every honest and virtuous female to flee from threatened outrage, and if assaulted to make complaint at the first opportunity, and where this is not done and no reasonable explanation is made it is a strong, but not a conclusive, presumption against the truth of the accusation.

By prompt disclosure the injured party is thereby shielded from unjust inferences and society guarded in a measure against the possible machinations of designing and evilminded females.

Says Mr. Bishop:

“The real facts in a case of alleged rape are commonly known only to the defendant and the complaining woman. And she may be honest or dishonest, free from guile or a crafty plotter against him, moved by a sense of justice or by a desire to conceal the shame of having voluntarily surrendered her virtue. If she speaks truth, no completely satisfactory confirmation of her testimony can often be had; if falsehood, nothing is so difficult as for the defendant to make the falsity appear. His temptation to clear himself by foul means, where he cannot by fair, is very great; hers may be, but it is not necessarily, almost as strong to convict him by perjury where the truth will not avail. Therefore it cannot be otherwise than that convictions will sometimes be wrongly had, and sometimes the guilty will go free, and there should be a conviction only on the clearest and most convincing proofs. In consequence of this, the law not only permits the ordinary tests to be applied to the complaining witness, but it has some special ones not permissible in other cases; as * * *

“On ordinary grounds, anything which the woman said or did of the res gestae of the ravishment will be admissible in evidence. . And there is considerable room for strengthening her testimony in this way, especially where she exhibits marks of violence in connection with expressions indicative of her physical condition. But aside from and beyond this, it is competent to show by her, or by others, or both, that after the alleged rape, especially recently after, she complained of it to suitable persons, and exhibited, if such was the fact, marks of violence and other like indications; as confirmatory of her sworn testimony. It is of special practical importance that the complaint was recent, and explanations of any delay are competent: But the doctrine in strict law appears to be that delays, especially if not great, only weaken the effect of her evidence with the jury.” (2 Bishop New Cr. Pro., secs. 962 and 963.)

The trial court refused to give a requested instruction defining rape in the second degree under the fifth subdivision. Under the evidence in this case this was clearly error.

The court failed to instruct the jury that if they should find the prosecutrix, at the time alleged, was over the age of fourteen years and under the age of sixteen years, then in any event the offense could only be rape in the second degree. The omission to properly instruct on this phase of the case was also error.

For the reasons stated, the judgment of the district court of Washita county is reversed.

FURMAN, P. J„ and ARMSTRONG, J., concur.


text:
    OTIS TITTLE v. STATE.
    No. A-1066.
    Opinion Filed June 8, 1912.
    (123 Pac. 1036.)
    TRIAL — Joint Indictment — Verdict—Sufficiency. Where two defendants are jointly prosecuted and tried and the jury returns a verdict finding one of them guilty but does not mention the name of the other defendant in such verdict, this does not render -the verdict void for uncertainty against the defendant found guilty. This objection was waived because not made when the verdict was presented to the court and before the jury was discharged.
    (Syllabus by the Court.)

      Appeal from Craig County Court; S. F. Parks,, Judge.

    Otis Tittle was convicted of violation of the prohibitory law, and appeals.
    Affirmed.

      James S. Davenport, for appellant.

      Smith C. Matson, Asst. Atty. Gen., and C. Caldwell, Co. Atty., for the State.
   FURMAN, P. J.

We have gone over this case carefully and find no error in the record which would authorize us to grant a new trial. All of the various questions raised by counsel for appellant have already been decided adversely to the contentions made, as will appear from an examination of the printed reports of this court. Our time is too much occupied to enable us to discuss a question over an indefinite number of times. There is only one question which we desire to discuss. The third ground of appellant’s motion for a new trial is as follows:

“Because the return of the jury in this case does not show that either Otis Tittle or John Britt was convictedj but there appears to be a mark run through the name of John Britt in the caption of one of the forms of verdict prepared by the court, but the name of either of the defendants is not given in the verdict nor was it a verdict of acquittal against the defendant John Britt.”

The record shows that the appellant and John Britt were jointly indicted and jointly tried. The* verdict in the case, however, was against the appellant alone. This record fails to show whether John Britt was acquitted or convicted, or whether the jui'y failed to find a verdict against him at all. Appellant contends that the failure of the jury to render a verdict against John Britt renders the verdict returned against appellant void. We do not agree with this contention.

In the case of State v. Cotterel at al., 12 Idaho, 572, 86 Pac. 527, the Supreme Court of Idaho held that, where two defendants were jointly informed against and tried together for grand larceny, the jury might bring in a separate veidict against each as though there was but a single defendant in each case, and that such verdict did not prejudice either of the defendants.

So far as the rights of this appellant are concerned, it is immaterial as to what became of the case against John Britt. We therefore think that the contention of appellant is without merit. But be this as it may, if there is anything in this contention, the objection should have been made when the verdict was presented, in order that it might have been corrected by the jury, if necessary. It is too late to raise such questions in a motion for a new trial.

The evidence in the case fully sustains the verdict, and the records of this court show that appellant is not only guilty in this case but that he is also a confirmed offender. The sooner such men<learn that if they want to keep out of jail they must quit violating the prohibitory laws of Oklahoma, the better it will be for them and the state. This court is not splitting hairs to keep such men out of jail.

The judgment of the lower court is therefore in all things affirmed.

ARMSTRONG and DOYLE. JJ„ concur.