text:
    JOE TAYLOR v. STATE.
    No. A-3712.
    Opinion Filed Feb. 6, 1922.
    (203 Pac. 1049.)
    (Syllabus.)
    Appeal and Error — Conviction Based on Evidence. Even where much of the evidence is circumstantial, if there is substantial evidence which if believed by the jury would preclude every reasonable hypothesis of the innocence of the accused, a verdict of guilty will not be disturbed.
    Under such circumstances the weight of the testimony is a question of fact for the jury, and is not a question of law for determination by this court.
    Appeal from District Court, Coal County; J. H. Line-baugh, Judge.
    Joe Taylor was convicted of murder and sentenced to life imprisonment in the state penitentiary, and he appeals.
    Affirmed.

      C. M. Threadgill, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. 0. Hall, Asst. Atty Gen., for the State.
   BESSEY, J.

Joe Taylor, plaintiff in error, in this opinion referred to as the defendant, was by information filed in the district court of Goal county, January 6, 1919, charged with the murder of Antonio Bodriguez on the 13th day of December, 1918. At the trial, on October 2, 1919, by verdict of the jury he was found guilty as charged, and his punishment assessed at life imprisonment. After hearing of a motion for a new trial, which was overruled, the defendant appealed from the judgment on the verdict.

The evidence on the part of the state was to the effect that the deceased, Antonio Bodriguez, commonly called Tony, was a Mexican, upwards of 50 years of age, who lived by himself in a four-roomed house in East Lehigh, Coal county, Okla., where he kept a gambling resort and sold Choctaw beer and possibly other intoxicating liquors; that he owned a gray horse, and did common labor and odd jobs for others. The evidence also disclosed that the defendant had been convicted of statutory rape and been pardoned, and had been accused of other crimes; that until the "Wednesday preceding the tragedy he had occupied a house just across the street from the premises of the deceased, where he kept bachelor quarters alone; that on Sunday morning, December 15, 1918, Tony was found dead in his house, with wounds on his head and face and a fractured skull. Near the body was a broken, bloody beer bottle and a bloody stone about the size of a man’s fist. An old black overcoat, torn in one or two places, and a bloody, torn dress shirt, were also found near the body. This coat had blood marks at the throat, on the sleevs, on the right side of the breast, on the back, and in the lining. There was a disarranged bed in the room where the body was found’, a pair of shoes was sitting under the bed, and there was blood on the pillows, mattress, and covers. The doors of the house were latched and locked on the inside, a wire screen was off of a window of the room where the body was found, and the window was partly open. The weather was cold, and the blood on the floor and on the clothing was coagulated.

There was evidence that the defendant had been seen at the home of the deceased on the Friday preceding the finding of the body. Two witnesses on the part of the state identified the overcoat found near the body as belonging to the defendant; a number of other witnesses stated that the overcoat resembled one belonging to or worn by the defendant, but would not state positively that the coat in question, which was shown as an exhibit in court, was the coat worn by the defendant. There was some evidence tending to show that the motive for the killing was robbery, and that the defendant had lost money in gambling games at the place of the deceased, and that the deceased was known to have received money a day or two-before the tragedy.

The testimony on the part of the defendant was to the effect that he was not the owner of the overcoat in question, and that prior to the tragedy he had moved to a little town called Midway, about eight miles distant and had remained there Thursday, Friday and Saturday preceding the finding of the body of the deceased.

There is but one assignment of error argued in the briefs, namely, that the testimony connecting the defendant with the homicide was circumstantial, and was insufficient to support the verdict. The defendant in his brief states the rule as lol-lows:

“In a criminal ease circumstantial evidence, to justify the inference of guilt, must exclude to a moral certainty every other reasonable hypothesis. Circumstantial evidence in a criminal case is of no value if the circumstances are consistent with either the hypothesis of innocence or the hypothesis of guilt, nor is it enough that the hypothesis of guilt will account for all the facts proven.”

In instruction No. 5 the court instructed the jury as follows:

“Yon are instructed that circumstantial evidence is legal and competent evidence in criminal cases, but the facts and circumstances must be consistent with the guilt of the defendant, and inconsistent with his innocence, and must exclude every reasonable hypothesis except that the defendant is guilty; and if the facts and circumstances in this case are of such a character as to convince you beyond a reasonable doubt that the defendant is guilty, it would be your duty to convict; but, if upon the consideration of all the evidence in this, case, you should entertain a reasonable doubt of his guilt, it would be your duty to acquit him. ”

Upon the question of an alibi the court gave instruction No. 10, as follows:

“In this case the defendant has interposed as one of his defenses what is known in law as an alibi; that is, that the defendant was at another and different place at the time of the commission of the crime. The law is that such defense is proper and legitimate, and that the jury should consider all the evidence bearing upon this point, and that if, after a careful consideration of all the evidence in the case, the jury should entertain a reasonable doubt as, to whether the defendant was in such other place when the crime was committed, then, in that event, the jury should give the defendant the benefit of such doubt and acquit him.”

The question here confronting us is not whether upon a consideration of the testimony, as shown by this record, this court would arrive at the same conclusion as was reached by the trial court. Taking it for granted as a fact proved beyond a reasonable doubt that the overcoat found near the body of the deceased belonged to the defendant, the evidence was sufficient to warrant the jury in finding a verdict of guilty. The jury were better able to determine than we, and it was within their province to determine, whether or not the overcoat was the property of the defendant. True, the evidence in many particulars was circumstantial and in a number of instances conflicting, but it is for the jury to determine the weight and sufficiency of the evidence; and, unless it affirmatively appears from the record, as a matter of law, that the evidence is insufficient to support a verdict, a verdict of guilty will not be disturbed.

The court fairly instructed the jury upon the law of circumstantial evidence, and the jury must have found beyond a reasonable doubt that the overcoat in controversy was the property of the defendant, which fact, taken together with all the other circumstances in the case, convinced the jury that the defendant was guilty.

The judgment of the trial court is therefore affirmed.

DOYLE, P. J., concurs.

MATSON, J., not participating.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    C. W. GOBEN v. WELLS, District Judge.
    No. A-4194.
    Opinion Filed Feb. 6, 1922.
    (203 Pac. 1119.)
    In the matter of the application of C. W. Goben for a writ of mandamus to compel Hon. A. S. Wells, District Judge, to certify his disqualification in criminal case No. 1445, pending in Comanche county.
    Judge requested to disqualify himself.
    See, also, 20 Okla. Cr. 220, 201 Pac. 812.

      Lewis R. Morris, for petitioner.
    B. L. Fulton, Asst. Atty. Gen., Fletcher S. Riley, Co. Atty., and J. A. Diffendaffer, Asst. Co. Atty., for respondent.
   PER CURIAM.

Now, on this 4th day of February, 1922, upon hearing of the application of C. W. Goben to require Hon. A. S. Wells, the regular presiding district judge of Comanche county, Okla., to certify his disqualification to sit as trial judge in criminal action No. 1445, pending in Comanche county, wherein the petitioner is charged with murder, and upon consideration of the petition and affidavits and oral testimony offered in support thereof, it is the opinion of this court that said judge should certify his disqualification to pro-. ceed further in said ease No. 1445, and it requests said presiding judge to so certify, and said judge being present, announces in open court that in accordance with the request of this court he will certify his disqualification, and ask that a judge be duly assigned in said above-mentioned case-


author: BESSEY, J.

text:
    In re STEVE SABO.
    No. A-4199.
    Opinion Filed Feb. 8, 1922.
    (204 Pac. 131.)
    (Syllabus.)
    Homicide — Murder—Death Penalty — Record and Judgment Held Regular and Lawful. This court finds, upon a careful examination of the record in this ease, that the proceedings leading up to the conviction of the defendant were in all respects regular and. in conformity to law, and that the judgment of the court is in com. pliance with the laws and procedure in homicide cases.
   Steve Sabo was convicted of murder and sentenced to death, and 'the Governor was notified and requested an opinion of the Criminal Court of Appeals. Opinion furnished, holding the judgment of conviction lawful.

Opinion of the Judges of the Criminal Court of Appeals in Response to a Request of Hon. J. B. A. Robertson, Governor of the State of Oklahoma.

Sir: In response to your official communication of February 6, 1922, addressed to this court, asking for an opinion, as provided in section 5969, R. L. 1910, in the matter of the conviction of Steve Sabo of the crime of murder, in fhe district court of Coal county, Okla., on the 16th day of December, 1921, and who was on the 23d day of December, 1921, by judgment of the court, sentenced to be put to death by electrocution on the 17th day of March, 1922, within the state penitentiary at McAlester, Okla., as by law provided, we hereby respectfully submit the following opinion of the Judges:

BESSEY, J.

It appears from transcript of the record submitted to us by you that Steve Sabo was prosecuted in the district court of Coal county, Okla., upon an indictment filed in said court on the 27th day of September, 1921, charging this defendant with the murder of Sophia Sabo in said county on the 18th day of September, 1921, by committing an assault upon said Sophia Sabo with a knife or some sharp instrument, inflicting certain fatal wounds, from the effect of which she died.

The record shows that this deféndant was duly arraigned and entered his plea of not guilty; that he was represented by counsel; that the jury was regularly impaneled and sworn; that the trial proceeded in a regular and orderly manner, resulting in a verdict of the jury assessing the death penalty; that the judgment of the trial judge was pronounced, sentencing the defendant in accordance with this verdict; and that the proceedings of the trial, as disclosed by this record, show that the defendant was accorded a fair and impartial trial, according to the laws and procedure in such cases.

The record discloses that beyond a donbt thé defendant was guilty of an unprovoked, premeditated, and atrocious murder, as charged, and that all the formalities of law essential to the rendition of judgment involving the taking of human life were observed in the manner and form provided by the laws of this state.

DOYLE, P. J., concurs.

MATSON, J., not participating.


text:
    Ex parte BOBBIE DOUGLAS.
    No. A-4157.
    Opinion Filed Feb. 13, 1922.
    (204 Pac. 174.)
    Application of Bobbie Douglas for writ of habeas corpus.
    Writ allowed.
    C. R. Reeves, for petitioner.
   PER CURIAM.

The petition filed on behalf of Bobbie Douglas alleges that she is unlawfully imprisoned and restrained of her liberty by Carl Froneberger, chief of police of the city of Lawton; that the cause of said restraint is that on the 28th day of December, 1921, she was arrested without a warrant and Imprisoned in the city jail, and on the 29th day of December, 1921, she was presented to the police judge, John Manning, who adjudged her guilty and sentenced her to pay two fines of $20 each; that no complaint was ever filed and no evidence offered, and no commitment issued. The only record made is what is designated as prisoner’s blank, a certified copy of which is attached to the petition.

A rule to show cause was duly entered and issued why the writ of habeas corpus should not be awarded as prayed for, made returnable January 17, 1922, and petitioner was ordered released on giving her own recognizance in the sum of $100. On the return day no answer was filed, and no appearance made in behalf of respondent.

The question presented is fully discussed in the case of In re Bochmann, 20 Okla. Cr. 78, 201 Pac. 537.

For the reasons stated in the opinion in that case, it is our opinion that petitioner is entitled to a discharge, and she is therefore by the judgment of this court discharged from the imprisonment of which she complains.


text:
    Ex parte A. W. DOCKUM.
    No. A-4105.
    Opinion Filed Feb. 13, 1922.
    (204 Pac. 134.)
    Original petition by A. W. Dockum for writ of habeas corpus.
    Writ denied, and cause dismissed.
    J. S. Belt, for petitioner.
   PER CURIAM.

The petition filed on behalf of A. W. Dockum represents that he is unlawfully confined and restrained of his liberty by D. W. Griffin, superintendent of the Central State Hospital at Norman, Olda.

It is alleged that petitioner is not insane and was unlawfully committed, and is confined and restrained as an inmate of said hospital without cause.

It is not¡ alleged in said petition that an application was made to the district court of Cleveland county for writ of habeas corpus to release petitioner.

It is an invariable rule of this court, in the absence of some extreme emergency, not to entertain original applications for writ of habeas corpus where the same has not been previously presented and the writ refused by the district court of the county where the petitioner is restrained.

It is therefore adjudged and ordered that the writ be denied, and the cause dismissed.


text:
    C. H. BURTNER et al. v. STATE.
    No. A-3808.
    Opinion Filed Feb. 13, 1922.
    (204 Pac. 135.)
    (Syllabus.)
    1. Conspiracy — Elements of Offense to Defraud State — Mere Irregularities in Official Conduct. The gist of the offense of conspiracy to defraud the state or any subdivision thereof is a common or joint purpose to perpetrate the fraud,i coupled with some overt act designed to consummate the fraud, and where there is nci criminal intent shown and no fraud is in fact perpetrated or attempted, the action, as a matter of law, must fail.
    (a) Mere irregularities in official -conduct, without a design to cheat, are not sufficient to sustain a charge of conspiracy.
    2. Courts — County Court Without Jurisdiction of Felony of Conspiracy to Defraud State. A conspiracy to defraud the state, as defined by statute (chapter 260, Sess. Laws 1915), is a felony of which the county court has no jurisdiction.
    3. Same — Misconduct in Office. Section 12 of article 7 of our Constitution prohibits county courts from taking jurisdiction “in any action against officers for .misconduct in office.”
    Appeal from County Court, Rógers County; Edward Jordan, Judge.
    C. H. Burtner, Ray Sloctor, and H. G. Goad were convicted of conspiracy to defraud and were each fined $50 and one-third of the costs of the prosecution, and they appeal.
    Reversed.
    Lashley & Rambo, Jennings & Hall, and Holtzendorff & Holtzendorff, for plaintiffs in error.

      S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

O. H. Burtner, Ray Sloetor, and H. G. Goad, plaintiffs in error, who in this opinion will be referred to as the defendants, were by information filed in the county court of Rogers county on March 24, 1920, charged as follows :

“That on or about the 10th day of May, A. D. 1919, in the county of Rogers, state of Oklahoma, one C. H. Burtner, the director, and Ray Sloetor, the clerk, of school district No. 4 of Rogers county, Okla., and H. G. Goad, the regular elected and qualified teacher for said school district No. 4 for the school year ending June 30, 1919, did then and there willfully and unlawfully commit the crime of conspiracy in the following form and manner, to wit, that is to say: That the said C. H. Burtner, as such director, and the said Ray Sloetor, as such clerk, and the said H. G. Goad, as such teacher, all as aforesaid, on or about said date and in said county and state, did then and there willfully and unlawfully conspire and act together with the intent and purpose to cheat and defraud school district No. 4 of Rogers county, Okla., out of lawful money of the United States; and in furtherance of the aforesaid acts the said C. H. Burtner, a.s such school district direct- or, and the said Ray Sloetor, as such school district clerk, did then and there execute, as such school district officers, certain school district warrants to the said H. G. Goad, as such teacher, for teacher’s salary, which said school district warrants were then and there in excess of the contract salary of the said H. G. Goad, as such teacher and they, the said C. H. Burtner and Ray Sloetor, did then and there deliver said school district warrants to the said H. G. Goad as teacher’s salary, and he, the said IL G. Goad, knowing the said school district warrants to be executed as aforesaid, and knowing-, said school district warrants to be in excess of his salary, as per his contract with school district No. 4 as aforesaid, did then and there receive said school district warrants as salary for teaching said school in said school district.”

At the trial, April 28, 1920, the defendants and each of them were found guilty as charged, and by subsequent judg-meat of the court their punishment was assessed at a fine of $50 each and costs. From this judgment and sentence they prosecute a joint appeal to this court.

The testimony discloses that defendant C. H. Burtner was school director and defendant Bay Sloctor was the clerk of school district No. 4 of Bogers county, Okla., and that defendant H. G. Goad was one of the teachers in said district, employed at a salary of $125 per month; that the other teacher was his wife, who was employed at a salary of $90 per month; that his salary was afterwards, by mutual consent reduced from $125 to $115 per month, and by verbal agreement entered into between him and the school board he was to perform the janitor services at the schoolhouse at an agreed price of $10 per month, making the combined salary for school work for Goad and his wife $215 per month.

The state, to maintain the allegations set forth in the information, introduced in evidence the teacher’s contract and certain school warrants issued by the defendants Burtner and Sloctor, one of which, State’s Exhibit 4, was a warrant drawn in favor of Mr. and Mrs. Goad in the amount of $205. It was claimed by the defendants that there was an error in the amount of this warrant, as the $10 for janitor services was not included. State’s Exhibit 5 was a warrant drawn in favor of Mr.' and Mrs. Goad in the amount of $225, which appears to have covered their joint salary, janitor hire for the current month, and janitor hire for the previous month, omitted from the warrant State’s Exhibit 4. State’s Exhibit 6 was a warrant drawn in favor of Mr. and Mrs. Goad in the amount of $231, which was explained as being the joint salary of the two teachers, $205, janitor hire, $10, and $16 for extra work performed in and about the schoolhouse by Orville Griffin, pursuant to an arrangement previously made with the board. State’s Exhibit 7 was a warrant drawn in favor of Mr. and Mrs. Goad in the amount of $288.40, marked “For teaching and expenses.” This was explained as being the joint salaries of the teachers and for janitor services, amounting to $215; for labor performed in and about the schoolhouse, $17.50; registers, $1.50; bladders for basket balls, $3; Chelsea Hardware Co., $.85; attending teachers’ convention at Oklahoma City, $50.55. The evidence shows that these teachers were instructed by the county superintendent of Rogers county and by the state superintendent of public instruction to make this trip and attend this convention at the expense of the school district. State’s Exhibit 8 was a warrant in favor of H. G. Goad in the sum of $230 for teaching and expenses, being made up of the combined salaries of the teachers, janitor hire, $7.50 for poultry show, and $7.50 egg money. It appears that the poultry show was for the benefit of the school children, and that these sums were paid as premiums, upon the instruction of the county superintendent, and that the same were paid by Mr. Goad personally, who was reimbursed by this warrant. State’s Exhibit 9 was a warrant in the amount of $225 in fav- or of H. G. Goad, which was $10 in excess of the combined salaries of the two teachers and Mr. Goad’s pay for janitor services. Defendants claim that the amount of this warrant was a mistake, and thaf the mistake was corrected when the next warrant was drawn, $10 being deducted from the following month’s warrant, which was State’s Exhibit 10 and was in the amount of $205.

While it appears that some of these warrants were issued to Mr. Goad alone, they were for the combined salaries of Mr. and Mrs. Goad; the wife testifying that they were made payable to her husband at her request. There was no claim or contention that any additional warrants were ever issued for her salary.

State’s Exhibit 13 was a warrant drawn in favor of defendant C. H. Bnrtner in the amount of $309.56, “for repair work on schoolhouse w s d.” The evidence shows that it was found that the school district had a balance on hand at the close of the fiscal year, and that this warrant was drawn for the purpose of having funds available for repairing the schoolhouse and doing work upon the school grounds for the next fiscal year, and that this method of using the balance on hand was suggested by the county superintendent. The defendants learned, however, that they had been criticized for the drawing of this last warrant, and this warrant was never in fact cashed, although the record shows that the work was done. Whatever irregularity there may have been in the' drawing of this warrant, for aught that appears in this record, there was no intent on the part of any of the defendants to perpetrate any fraud upon the school district, and no fraud was in fact perpetrated by the issuance of this last warrant.

We assume that, since this prosecution was commenced in the county court, it was the intention of the state to predicate it upon a portion of section 2232, R. L. 1910, which is as follows:

“Criminal Conspiracy Defined. If two or more persons conspire, either: * * *
“Fourth. To cheat and defraud any person of any property by any means which ar,e in themselves criminal, or by any means which, if executed, would1 amount to a cheat or to obtaining money or property by false pretenses: * * *
“They are guilty of a misdemeanor.”

The gist of the offense charged is a common or joint purpose of the defendants to cheat or defraud, coupled with some overt act designed to consummate the fraud-

There are a number of assignments of error urged by the defendants, but the Attorney General, for the state, has confessed error, on the ground that the evidence as shown by this record is insufficient to constitute a conspiracy to defraud school district No. 4, as above defined. Upon this point we agree with the Attorney General, and it will therefore be unnecessary to notice the other assignments of error, excepting the question of the jurisdiction of the trial court.

The record as a whole discloses that the fiscal affairs of this school district were handled in a somewhat informal and irregular manner, but, considering all of the evidence, it does not appear that there was any intention on the part of the defendants, or either of them, to perpetrate any fraud upon the district, and none in fact was perpetrated. Whether or not, as a matter of law, the county superintendent or the state superintendent of public instruction had authority to direct these teachers to attend educational conventions at the expense of the school district, we do not decide. Be this as it may, these instructions from these superior officers were admissible to show the intent and purpose of issuing the warrant in the manner in which is was issued. The members of the board and these school-teachers may have feared, for obvious reasons, to disregard the instructions of these officers. We think that we may safely assume that this item of expense, as well as the item for poultry prizes and the several items for repairs, were for the benefit of the school district, from which they obtained value received.

Furthermore, it appears that one of the grounds set forth in the demurrer to the information was that the court was without jurisdiction of the cause. While this challenge to the jurisdiction of the court is not strongly urged in defendants’ brief, we are inclined to hold that this objection was well taken. A conspiracy, as defined by chapter 260, p. 510, Session Laws 1915, is as follows:

'“If two or more persons conspire either to commit any offense against the state of Oklahoma, or to defraud the state of Oklahoma in any manner or for any purpose, and if one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not more than $10,000 or to imprisonment for not more than two years or to both fine and imprisonment in the discretion of the court or jury.”

The information in this ease, apparently predicated upon section 2232, R. L. 1910, before quoted, also states an offense under the 1915 statute last above quoted. It was held by this court in the case of State v. Young, 20 Okla. Cr. 383, 203 Pac. 484, decided January 10, 1922, that such an offense is a felony. If the offense charged is a felony, the county court for that reason would be without jurisdiction to try the cause. True, the complaint here does not specify that the acts complained of were feloniously done, but the conspiracy to commit the offense of defrauding the school district was an offense against the state of Oklahoma, in that it affected the revenues of the state as well as the revenues of the school district. Section 2232, R. L. 1910, supra, makes it a misdemeanor to conspire to defraud “any person.” The 1915 statute makes it a felony to conspire to defraud the state. A school district being a subdivision of the state, it would seem that the offense charged in the information comes "within the latter statute rather than within the former.

In construing the statutes above quoted we must not lose sight of the constitutional limitations affecting the jurisdiction of county courts. Section 12 of article 7 of our Constitution provides that the! county court shall not have jurisdiction “in any action against officers for misconduct in office.” To us it appears that this prosecution is in effect an action against officers for misconduct in office and comes within the constitutional prohibition depriving county courts of jurisdiction in such aetiqns.

The reasons for these deductions are very fully and ably analyzed by Presiding Judge Doyle in the ease of State v. Young, supra.

The judgment of the trial court is reversed.

DOYLE, P. J., concurs.

MATSON, J., not participating.


author: MATSON, J.

text:
    JAMES LITTLE v. STATE.
    No. A-3695.
    Opinion Filed Feb. 13, 1922.
    (204 Pac. 305.)
    (Syllabus.)
    1. Indictment and Information — Amendment to Felony- Information Charging Different Offense. In prosecutions for felony by in-formations, no amendment to the information in the trial court is permissible, either before or after plea, which has the effect of charging’ an offense for which no preliminary examination had been given or waived by the defendant.
    2. Same — Filing of Information Authorized Joy Fact of Preliminary Examination or Waiver. Under section 17, art. 2, Constitution, the precedent fact that a preliminary examination has been had or waived constitutes a constitutional basis for a prosecution by information in the district court. It is the fact that there was a preliminary examination, or a waiver thereof, and a judicial determination thereon by the examining magistrate that a felony has been committed and that there is probable cause to believe that the defendant is guilty thereof, that confers jurisdiction on the district court and authorizes the county attorney to file an information in said court according to the facts in evidence on such examination, or for the offense charged in the preliminary information when such examination has been waived by the defendant and no testimony taken.
    3. Same — Judicial Notice Whether Information Conforms to Facts Disclosed at Preliminary Hearing — Allowance of Amendment. If testimony is taken at a preliminary examination, reduced to writing, and filed with the clerk of the district court as provided by statute, the trial court takes judicial notice of whether or not the information filed by the county attorney conforms to the facts as disclosed by the evidence in the preliminary examination. If the original information filed in the trial court by the county attorney does not conform to such facts, the trial court may permit an amendment thereto in conformity with such facts.
    4. Same — Where no Transcript of Preliminary Examination Burden on Defendant to Show Nonconformity of Amended Information. Where no transcript of the evidence at the preliminary examination is taken and filed with the clerk of the district court, although testimony of witnesses is given at such preliminary examination, and the trial court permits the information to be amended, the burden is upon the defendant to support his motion to quash the amended information (on the ground that he had been accorded no preliminary examination for the crime charged in the amended information), by showing that the testimony of the witnesses before the examining magistrate disclosed an offense different from that charged in the amended information.
    5. Same — Defendant’s Burden of Proof not Met. For reasons holding motion to quash amended information properly overruled, see statement of case and opinion.
    6. Larceny — Information—Person in Lawful Possession Described as Owner. The actual condition of the legal title of property alleged to have been stolen is immaterial to the thief; so far as he is concerned, one may be taken as the owner who is in personal possession of the property and whose possession was unlawfully disturbed by the taking. The possessor of' the goods from whom the thief took them may properly be described as the owner of th’e property in the indictment or information.
    7. Same — Allegation of Possession and Ownership in Lessee — Proof of Actual Ownership in Another Allowable. Where the preliminary information charged both the ownership and the possession of the stolen property to be in one C. L. P. and there was also an additional allegation further identifying the crime that .the property was stolen from the leasehold of C. L. P. in N. county, the allegation of ownership was not the only means that defendant had of identifying the offense from a perusal of the preliminary information. Under such allegations it would have been permissible to show, as against the thief, that one F. F. was the actual owner of the property, provided the additional showing was made that the property stolen at the time of its taking was in the actual possession of C. L. P. and was taken from the leasehold of C. L. P. in N. county.
    Appeal from District Court, Nowata County; C. W. Mason, Judge.

      James Little was convicted of grand larceny, and he appeals.
    Affirmed.
    On the 19th of November, 1918, there was filed before 0. W. Childers, justice of the peace in Nowata county, a preliminary complaint or information charging John Little and James Little with the crime of grand larceny, alleged to have been committed in said county on or about the 15th day of November, 1918, in manner and form as follows:
    That the said John Little and James Little, then and there being did then and there unlawfully, feloniously, and by fraud and stealth take, steal, and carry away from C. L. Puckett’s lease in Nowata county, state of Oklahoma, the personal property, to wit, 110 bushels of oats of the value of $71.50, good and lawful money of the United States, then and there the personal property of C. L. Puckett and in the possession of the said C. L. Puckett; the said taking, stealing, and carrying away of said property being then and there without the knowledge or consent of the said C. L. Puckett and against his will, and with the intent then and there existing in the mind of the said John Little and James Little to deprive the said C. L. Puckett thereof and to convert the same to their own use, contrary to the form of the statutes in such eases made and provided and against the peace and dignity of the state.
    And warrant of arrest was issued on said information, and on said 19th of November, 1918, the defendants appeared by their attorney, E. E. Sams, and the state by the county attorney and by agreement the date for the preliminary hearing was set for November 21,1918.
    On the 21st day of November, 1918, the defendants were arraigned on said information and entered pleas of not guilty, and the witnesses for the state and for the defendants were sworn and testified, and the defendant John Little was discharged, and the defendant James Little was held to the district court for trial and his bond fixed at $2,000. Thereafter the defendant James Little gave bond in the sum of $2,000 for his appearance to answer the charge of grand larceny in the district court of Nowata county..
    Thereafter, on the 23d of January, 1919, the county attorney of Nowata county filed an information against the defend-dant James Little charging him with the crime of grand larceny, alleged to have been committed in Nowata county on about the 15th day of November, 1918; the charging part of which is as follows:
    That the said James Little, then and there being, did then and there unlawfully, feloniously, and by fraud and stealth take, steal, and carry away from C. L. Puckett leasehold in Nowata county, state of Oklahoma, the personal property, to wit, 110 bushels of oats of the value of $71.50, good and lawful money of the United States, then and there the personal property of C. L. Puckett; the said taking, stealing, and carrying away of said property being then and there without the knowledge or consent of the said O. L. Puckett and against his will, and with the intent then and there existing in the mind of the said James Little to deprive the said C. L. Puckett thereof and to convert the same to his, the said James Little’s, own use, contrary to the form of the statutes in such eases made and provided, and against the peace and dignity of the state.
    Thereafter, on the 3d day of February, 1919, defendant James Little appeared in person and also by counsel in open court, was arraigned, said his true name was James Little, as charged in the information, and asked time to plead, and was given until February 17, 1919, to plead to said information.
    Thereafter, on the 17th day of February, 1919, defendant filed a demurrer to the information on the following grounds:
    (1) That said information does not substantially conform to the requirements of the laws of the state of Oklahoma.
    (2) That the facts stated in said information do not constitute a public offense under tbe laws of tbe state of Oklahoma.
    On said date said demurrer was heard and overruled, and defendant entered his plea of not guilty to the charge, and the cause was continued for the term.
    Thereafter, on November 4th, 1919, the county attorney, by leave of court, was permitted to amend the information in the following manner:
    By striking out the name O. L. Puckett in line 7 and line 12 and submitting the name of “Frank Farbo,” and by adding the words “and Frank Farbro” after the name “0. L. Puckett” in line 10. i
    To the foregoing amendment the defendant objected. His objection was overruled by the court, to which exception was taken, and the defendant was then called before the court for re-arraignment, and waived arraignment and asked 24 hours in which to plead.
    The charging part of the information as amended is as follows :
    That the said James Little, then and there being, did then and there unlawfully, feloniously, and by fraud and stealth take, steal, and carry away from C. L. Puckett leasehold in Nowata county, state of Oklahoma, the personal property, to wit, 110 bushels of oats of the value of $71.50, good and lawful money of the United States, then and there the personal property of Frank Farbro and in the possession of the said C. L. Puckett; the said taking, stealing, and carrying away of said property being then and there without the knowledge or consent of the said C. L. Puckett and Frank Farbro and against his will, and with the intent then and there existing in the mind of the said James Little to deprive the said Frank Farbro thereof and to convert the same to his, the said James Little’s, own use, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.

      Thereafter, on the 5th day of November, the defendant filed a motion to quash and set aside the amended information upon the grounds that said information charged a new and different offense from the one charged in the original information, in that, in the original information defendant was charged with the larceny of oats from one C. L. Puckett, while the amended information charges defendant with the larceny from one Frank Farbro; and for the further reason that defendant has never had a preliminary hearing on the offense as set forth in the amended information and has never waived a preliminary hearing as to such charge.
    On said 5th day of November, 1919, the said motion to quash the amended information was heard by the court and overruled, to which action the defendant objected and excepted, and thereupon the defendant entered his plea of not guilty to said charge, and the case was then reassigned for trial for November 7, 1919.
    Thereafter, on the 7th of November, 1919, the defendant filed a motion and application for a continuance of said cause on. the following grounds:
    (1) That on the 4th day of November, 1919, by permission of the court, the county attorney amended the information herein by charging a new and different offense from that charged in the original information and on which defendant was given a preliminary hearing, and for which he was held to answer to the district court; that this defendant was thereupon arraigned upon the new or amended information on the 4th day of November, 1919, and entered his plea late in the afternoon of November 5, 1919; (2) that since pleading to the amended information the defendant has not had sufficient time or opportunity to subpoena or secure the attendance of witnesses on his behalf for 9 o’clock on November 7, 1919.
    The defendant therefore asks that his case be continued for the term or to such subsequent time in the present term as will enable this defendant to make preparation for his trial and secure the attendance of witnesses to meet the new issue raised by the amended information.
    This application was supported by the affidavit of the defendant as follows:
    James Little, of lawful age, first being duly sworn on his oath, says: That on the 4th day of November, 1919, the county attorney, over the objection of the defendant, was permitted by the court to amend the information herein; that he did amend said information by charging this defendant with a new and separate offense, to wit, larceny of oats from one Frank Farbo, while the original information, on which the defendant was given a preliminary hearing and for which he was held to answer to the district court, charged this defendant with larceny from one C. L. Puckett.
    Defendant further says that on the 5th day of November, 1919, late in the afternoon, he entered his plea to the amended information and thereupon defendant’s ease was assigned for trial on November 7, at 9 o’clock a. m., giving this defendant only one day to prepare for trial to meet the new issue raised by the amended information; that the alleged larceny is charged to have occurred in a remote part of the county, 15 or 20 miles from the county seat in the neighborhood where defendant lives; that defendant has not had time or opportunity to secure the attendance of witnesses since pleading to the new or amended information.
    Affiant further says that the amendment to the information is prejudicial to this defendant ; that the information on which the amendment was made has been in possession of the county attorney for several months and since the holding of the preliminary examination; and that this defendant cannot safely proceed to trial at this time, on account of surprise and lack of time to meet the new issue.
    On hearing of the motion and application for a continuance the following occurred:

      “The Court: The court is of the opinion that probably the county attorney was a little dilatory in making this amendment in the information, inasmuch as the statement has been made here at least that he was in possession of this knowledge for some several months; nevertheless he did come into this court on the first day of this term on last Monday, and asked this amendment, and the ease was set for Tuesday.
    “Mr. Sams: I think not. I may be mistaken, but I would like to challenge the record on it.
    “The Court: Even if the amendment were made on Tuesday, the ease at that time was reassigned for to-day Friday week, and the defendant now claims surprise, and the court is of the opinion that he couldn’t claim surprise in this matter in good faith, unless it could be shown and was shown that he had subpoenaed additional witnesses and those witnesses had failed to put in their appearance. No showing has been made here that he has failed to secure additional evidence or witnesses that would be necessary after the amendment was made.
    “Mr. Sams: My argument is based on the theory that the cas-' could not be assigned until after the plea properly, which was on "Wednesday afternoon, about the middle of the afternoon, or towards evening.
    “The Court: The motion will be overruled and denied.
    “Mr. Sams: Now, there is one other question that I want to suggest; the defendant’s witnesses, he thinks are on the car. The witness Webber appeared this morning, and he had another witness, Sterling Anderson, that he sent him after, and he thinks they are on his car, and of course, we can go ahead if that ear — I understand they are having trouble with the power.
    “The Court: They are running now. It will probably be here by that time. Do you know that they are on that ear?
    “Mr. Sams: No, sir; he doesn’t know they are on that car. He told me this morning he would send his wife after the other witness, but Sam Webber, his other witness, volim-teered to go, and we might possibly ask for a little delay in case they didn’t get here.
    “The Court: Have these witnesses been subpoenaed?
    “Mr. Sams: Sam Webber has, but I don’t know whether the other witness has or not.
    “The Court: If they are witnesses that have been subpoenaed and are not here, I will give you an attachment for them. Call the jury.”
    Thereupon a jury was selected to try said cause; the witnesses for the state and for the defendant were sworn and testified in open court; the cause was submitted to the jury, and the jury returned a verdict of guilty as charged in the information, but failed to agree on the punishment; and the court thereafter, after overruling a motion for a new trial, sentenced the defendant to a term of four years’ imprisonment in the state penitentiary.
    From the judgment and sentence the defendant has appealed to this court, and as the only grounds for a reversal relies upon the alleged errors of the trial court in permitting the county attorney to amend the information and in overruling the defendant’s motion to quash the information as amended.
    Walter S. Keith, Harold McGugin, and E. E. Sams, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   MATSON, J.

(after stating the facts as above). Section 5695, Revised Laws 1910, is as follows:

“An information may be amended in matter 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 tbe 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.”

Section 17 of article 2 of the Constitution of Oklahoma provides:

“No person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information.
“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.
“Prosecutions may be instituted in courts not of record upon a duly verified complaint.”

Section 5695, supra, is a statute carried forward from the territorial Code. Prior to statehood there was no authority to prosecute a felony by information. All such prosecutions at that time had to be by indictment.

Since the adoption of the Constitution as authorized by section 17, article 2, supra, prosecutions for felony may now be had by information provided the defendant has been accorded a preliminary examination before some examining magistrate, or has waived such preliminary examination. It is clear, therefore, that as to prosecutions for felony by information no amendment to the information in the trial court would be permissible, either before or after plea, which had the effect of charging an offense for which no preliminary examination had been given or waived by the defendant.

In the case of Williams et al. v. State, 6 Okla. Cr. 373, 118 Pac. 1006, it is held:

“Under the constitutional provision the precedent fact that a preliminary examination has been had or waived constitutes the jurisdictional basis for a prosecution on information in the district court. It is the fact that there was a preliminary examination, or a waiver thereof, and a judicial determination thereon by the examining magistrate that a felony has been committed, and that there is probable cause to believe that the defendant is guilty thereof, that confers jurisdiction on the district court and authorizes the county attorney to file an information in said court charging the crime committed according to the facts in evidence on such examination; or for the offense charged in the preliminary information when such examination has been waived by the defendant.”

In connection with the holding of this court in the Williams Case, supra, it is essential, in applying the law to the questions involved in this appeal, that consideration be given to sections 5673, Revised Laws 1910, 5680, Revised Laws 1910, and 5692, Revised Laws 1910, which, in the order named, are as follows:

“At the examination the magistrate must, in the first place, read to the defendant the complaint on file before him. He' must also, after the commencement of the prosecution, issue subpoenas for any witnesses required by the prosecutor or the defendant.”
“If, however, it appear from the examination that any public offense has been committed, and that there is sufficient cause to believe the defendant guilty thereof, the magistrate must in like manner indorse on the complaint an order signed by him to the following, effect: It appearing to me. that the offense named in the within complaint mentioned (or any other offense, according to the fact, stating generally the nature thereof), has been committed, and that there is sufficient cause to believe the within-named A. B, guilty thereof, I order that he be held to answer the same. ’ ’
“When a magistrate has discharged a defendant, or has held him to answer, he must return immediately to the clerk of the district eourt of the county, the warrant, if any, the complaint, the depositions, if any have been taken, of all the witnesses examined before bim, tbe statement of tbe defendant, if be have made one, and all undertakings of bail or for the appearance of witnesses, taken by him, together with a certified record of tbe proceedings as they appear on his docket.”

Also to tbe first subdivision of chapter 68, Session Laws 1913, p. 106:

“Tbe witnesses must be examined in tbe presence of tbe defendant, and may be cross-examined by him. On tbe request of tbe county attorney, or tbe defendant, all tbe testimony must be reduced to writing in tbe form of questions and answers and signed by tbe witnesses, or tbe same may be taken in shorthand and transcribed without signing, and in both cases filed with tbe clerk of tbe district court, by tbe examining magistrate. * * * In no case shall the county be liable for tbe expense in reducing such testimony to writing,- unless ordered by tbe county attorney.”

From tbe foregoing provisions it appears that in conducting preliminary examinations the magistrate is required to issue subpoenas for tbe witnesses for the state and for tbe defendant, and, when requested either by tbe county attorney or the defendant, tbe testimony of such witnesses must be either reduced to writing in tbe form of questions and answers or taken in shorthand and transcribed and thereafter filed with tbe clerk of the district court by the examining magistrate. Also, where tbe defendant is held to answer, the magistrate should indorse on tbe information or complaint an order signed by bim either “that tbe offense named in tbe within complaint mentioned, or any other offense, according to the, fact, stating tbe nature thereof, has been committed, and that there is sufficient cause to believe tbe defendant guilty thereof,” and also an order “that he be held to answer the same.” And, further, tbe magistrate must return immediately to the clerk of the district court of the county “tbe complaint, the warrant, the depositions, if any have been taken, of all the witnesses examined, the statement of the defendant, if- one has been made, all undertakings of bail, and a certified record of the proceedings as they appear on his docket. ’ ’

The foregoing files in the office of the clerk of the district court are the indicia of the jurisdiction of the district court to permit the trial of the defendant by information subsequently filed in said court by the duly authorized county attorney. Without the defendant having been accorded a preliminary examination, or without his having waived the same, the district court would have no jurisdiction to try the defendant upon an information charging a felony.

In the Williams Case, supra, this court, in effect, held that, after a judicial determination by an examining magistrate that a felony has been committed, and that there is probable cause to believe that the defendant is guilty thereof, jurisdiction is conferred on the district court such as to authorize the county attorney to file an information in said court charging the crime committed, either according to the facts in evidence on such examination (that is, where evidence is taken at the examination), or, if no evidence is taken, then for the offense charged before the examining magistrate.

In this case the record discloses that there was no waiver of a preliminary examination by the defendant, but that both witnesses for the state and for the defendant testified before the examining magistrate.

It does not appear from the record, however, that any request was made that this testimony be reduced to writing or taken in shorthand and transcribed, and for that reason there is no showing that any transcript of the testimony of the witnesses, as given in the preliminary examination, was filed with the other papers with the clerk of the district court. If such testimony was reduced to "writing and so filed, tbe trial court could readily take .judicial notice of the fact that the amendment permitted to the original information accorded with the facts in evidence at the preliminary examination. If, on the other hand, no such transcript of the evidence at the preliminary examination was taken and filed with the clerk of the district court, then the burden would be upon the defendant to support his motion to ■quash the information (on the ground that he had been accorded no preliminary examination), by a showing that the testimony of the witnesses before the examining magistrate disclosed an offense different from that charged in the amended information. There was no attempt on the part of the defendant to support his motion to quash the amended information by any such showing, but he here contends that, in the absence of a transcript of the testimony as taken before the examining magistrate, the court must look alone to the charge as contained in the preliminary complaint or information. That is not the holding of this court, but in the Williams Case this court held specifically to the contrary, and said that—

“Where the preliminary examination was not waived the county attorney is authorized to file an information charging the crime committed according to the facts” in evidence on .such examination.

Construing the foregoing constitutional provision and .statutes in pari materia, the conclusion is reached that in this case the county attorney was authorized to charge the offense in the district court “according to the facts in evidence on the preliminary examination”; that, if the original information filed by him did not charge such offense “according to such facts,” he was authorized, with leave of the court, to amend such information to conform to such facts, even after plea had been entered to the original information; that such an amendment was permissible, even though the offense as charged in the amended information differed materially from that charged in the preliminary information, in view of the fact that in this case the defendant did not waive his preliminary examination; that the burden was npon the defendant, where evidence had been taken at the preliminary examination and no transcript of it filed with the clerk of the district conrt, to make an affirmative showing that the facts charged in the amended information did not support the crime as found to have been committed from the evidence adduced at the preliminary hearing.

The foregoing excerpts of the record disclose that the defendant failed to meet the burden resting upon him. Thére were circumstances under which the amendment was permissible, and the presumption must obtain that those circumstances existed until the contrary was made to appear on the hearing of the motion to quash' the amended information. Such showing is not conclusive merely because the preliminary information alleged the ownership of the property to be in a person with a different name than that alleged in the amended information.

Another reason appears. It is evident from the pleadings that the allegations of ownership of the stolen property in the preliminary information and in the amended information in the district court were not materially variant. It is a well-established legal principle that the actual condition of the legal title of the property alleged to have been stolen is immaterial to the thief; so far as he is concerned, one may be taken as the owner who is in peaceable possession of the property and whose possession was unlawfully disturbed by the taking. The possessor of the goods from whom the thief took them may therefore properly be described as the owner of the property in the indictment or information.

The preliminary information charged both the ownership and the possession of the stolen property to be in one C. L. Puckett. In addition to such allegations, and as further identifying the crime, there was also an allegation that the property was stolen from the lease of C. L. Puckett in No-wata county. The allegation of ownership therefore was not the only means that defendant had of identifjdng the offense from a perusal of the preliminary information. He was informed, in addition to ownership, that he was charged with stealing oats in the actual possession of C. L. Puckett, and from the lease of C. L. Puckett in Nowata county. Under such circumstances, we believe the amendment as permitted to the original information did not materially change the crime, for the reason that under the original information as filed in the district court it would have been permissible to show that Frank Farbro was the actual owner of the property, provided the additional showing was made, as it was in this case, that the property stolen, at the time of its taking, was in the actual possession of C. L. Puckett and was taken from his leasehold in Nowata county, Okla. 25 Cyc. p. 89.

The evidence in this case on the part of the state clearly establishes the guilt of the defendant, and discloses that in the commission of the larceny as charged he also committed the graver offense of burglary. The punishment imposed is merited by the evidence.

For reasons stated, it is held that there was no error in permitting the information to be amended in the form and manner in which it' was amended in this case, and that the motfón to quash the amended information was properly overruled.

The judgment is affirmed.

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


text:
    C. M. JOHNSON v. STATE.
    No. A-3703.
    Opinion Filed Feb. 16, 1922.
    (204 Pac. 311.)
    (Syllabus.)
    1. Indictment and Information — In Felony Cases Information to Conform to\ Evidence at Preliminary' Hearing or with Preliminary Complaint — Amendments. There is a distinction between amendments to informations in misdemeanor and felony cases. In the latter prosecutions the information in the trial court is based upon a preliminary examination or waiver thereof by defendant; in the former no preliminary examination is allowed. In felony cases the county attorney is authorized to file an information in the trial court according to the evidence at the preliminary hearing, or, if one is waived and no evidence is taken, then according to the charge as contained in the preliminary complaint or information.
    2. Same — Defendant not Prejudiced by Amendment Making Information Conform. In felony cases defendant is not prejudiced by an amendment to the information in the trial court which merely has the effect of making such information conform to the facts as disclosed at the preliminary examination, if a hearing is had, or to conform to the charge as contained in the preliminary complaint or information, if the preliminary examination is waived and no evidence taken.
    3. Appeal and Erroi — Burden on Defendant to Show Amendment of Information Unauthorized- The burden is upon the defendant to show that the amendment, in felony cases, is unauthorized. Unless it affirmatively appears from the record to the contrary, this court will presume that the proceedings were regular and the amendment such as was authorized by the preliminary examination; the burden is on the defendant to bring a case on appeal which includes enough of the proceedings of the lower court to enable this court to pass intelligently and safely upon the questions presented.
    4. Forgery — Circumstances Relating to Purchase of Goods with Forged Instrument Admissible — Similar Suit ot Clothes as Evidence. For circumstantial evidence held to have been properly admitted, -see body of opinion.
    5. New Trial — Newly Discovered Evidence — Insufficient Showing. Applications for a new trial on the ground of newly discovered evidence are addressed to the discretion of the trial court. Where proper diligence is not shown to secure the alleged newly discovered evidence, and also where such evidence would not likely change the result if a new trial should have been granted, no error was occasioned in overruling the motion.
    6. Appeal and Error — Harmless Erroi — Permitting State’s ^Evidence in Chief to be Introduced in Rebuttal. The trial court-permitted evidence in chief to be introduced in rebuttal. In view of other incriminating evidence against the defendant, it is held that such error is not sufficiently prejudicial to result in a reversal of the j'udgment.
    Appeal- from District Court, Jefferson County; Cham Jones, Judge.
    C. M. Johnson was convicted of forgery, and he appeals.
    Affirmed.
    Baldwin & Snider and Cameron & Walden, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   MATSON, J.

It is Erst contended that the trial court erred in overruling the demurrer of plaintiff in error to the information. The demurrer was on the ground that the information did not charge the defendant with an offense against the laws of the state of Oklahoma.

The information was filed in the district court of Jefferson county on the 3d day of September, 1919, and charged the defendant with committing the crime of forgery on or about the 25th day of November, 1919. By interposing the demurrer the defendant intended to. take advantage of the allegation as to the time the offense was alleged to have been committed by him as it appeared from the face of the information that the allegation as to the time the offense was committed was same two months subsequent to the date on which the information was filed, and therefore alleged an impossible date for its commission.

Alter tbe defendant bad pleaded to the original information the county attorney discovered the error in the date, and, by leave of court, was permitted to amend the information by changing the allegation as to the time when the crime was committed from the 25th day of November, 1919, to the 25th day of November, 1918. This amendment had the effect of remedying any defect in the original information as to the date, and rendered the demurrer not well taken. Rollen v. State, 7 Okla. Cr. 673, 125 Pac. 1087; State v. Cooper, 31 Kan. 505, 3 Pac. 429.

Counsel for the defendant objected to and excepted to the action of the court in permitting the amendment to be made, and this action constitutes the substance of the alleged error presented under the foregoing assignment. While the amendment to the information as ground of error is not properly raised by the assignment “that the court erred in overruling the demurrer to the information,” nevertheless, in view of the fact that exception was taken to the action of the trial court in allowing the information to be amended, and in view of the further fact that this is a conviction for a felony, we have taken occasion to examine the record carefully to determine whether or not the alleged error in permitting the information to be amended is properly presented for a review by this court, and our conclusions as to this question are as follows :

A distinction must be made between amendments to in-formations in misdemeanor and felony cases. In the latter prosecutions the information in the trial court is based upon a preliminary examination accorded the defendant or a waiver thereof by him; iñ the former no preliminary examination is allowed. Section 17, art. 2, Const. The county attorney is authorized, in felony cases, to file in the trial court an information which charges the crime according to the evidence at the preliminary bearing', or if one is waived, and no evidence taken, then according to the charge as contained in the preliminary complaint or information. Williams v. State, 6 Okla. Cr. 373, 118 Pac. 1006.

Therefore in felony cases the defendant cannot, in good faith, say that he is prejudiced by any amendment to the information in the trial court which merely has the effect of making such information conform to the. facts as disclosed at the preliminary examination, if a hearing is had, or according to the charge as contained in the preliminary complaint or information, if the preliminary examination is waived and no evidence taken. James Little v. State, 21 Okla. Cr. 1, 204 Pac. 305.

The burden is upon the defendant to show that the amendment in felony cases is unauthorized. Unless the contrary affirmatively appears from the record and case-made on appeal, this court will presume that the proceedings were regular and the amendment such as was authorized by the preliminary examination, or else the appellant would have included within the case-made enough of the record below to show the contrary. Little v. State, supra.

Section 5996, Rev. Laws 1910, provides:

“In all criminal cases appealable to the Criminal Court of Appeals, the appellant may prepare, and it shall be the duty of the court to provide for the preparation and settling of a case-made in all respects as in civil cases, and the ease-made so settled, served and filed in the trial court may be sent to the appellate court in lieu of all other records or bills of exception, or the proceeding in the appellate court may be as provided in the next section.”

If a defendant desires to bring a case here on appeal, he must at least bring enough of the proceedings of the lower court to enable this court to pass intelligently and safely upon the questions presented. Cowan v. State, 5 Okla. Cr. 314, 114 Pac. 627; Starr v. State, 9 Okla. Cr. 210, 131 Pac. 543.

In this appeal there is nothing in the case-made to show whether or not the preliminary examination was waived, and, if not, what the evidence was at the preliminary examination; and, if waived and no evidence taken, what the charge was as contained in the preliminary complaint or information. In the absence of such a showing, this court cannot pass intelligently or safely upon the question of whether the amendment to the information was prejudicial to the defendant.

It is evident in this case that the amendment to the information was rendered necessary because of a typographical error. If county attorneys would take the precaution to proofread all informations before they are filed, such questions as this would be avoided on appeal, and the county and state saved the unnecessary expense and delay in enforcing criminal judgments. We pause to suggest- that prosecuting officers cannot be too careful in the preparation of criminal pleadings.

It is also contended that the trial court erred in admitting evidence on behalf of the state over the objection and exception of the defendant. The assignment of error relates to the identification of, and its subsequent admission in. evidence, a suit of clothes taken from the stock of G. W. Coker & Sons’ mercantile store at Waurika, Okla.

Prior to the admission of this suit of clothes in evidence Mrs. Tucker, who clerked in the store of G. W. Coker & Sons on November 25, 1918, had testified that the defendant appeared in the store on that date, purchased a bill of goods, and upon request by him the witness filled out a check for $16 on the First National Bank of Addington, Okla., payable to G. W. Coker & Sons, and that the defendant signed the name of J. C. Smith to said check and offered it in payment of said bill of goods. The bill of goods amounted to $15.65. The check was accepted and the defendant given 35 cents in change.

Afterwards the check was discovered to be a forgery; there being no person by the name of J. C. Smith who had an account in the First National Bank of Addington, and, so far as the cashier of said bank knew, there was nobody by the name of J. C. Smith who lived in or near the town of Adding-ton.

Among the goods purchased from G. W. Coker & Sons on that occasion from the clerk Mrs. Tucker was a suit of boys’ clothing, and while Mrs. Tucker was upon the witness stand she identified another suit taken from the stock of G. W. Coker & Sons as being of the same color and pattern as that sold the defendant on November 25, 1918.

J. L. Phinn, another witness for the state, testified:

“That he lived on a farm about a mile north of Waurika; that in October, 1918, the defendant, Charley Johnson, had been to see the witness for the purpose of renting Ms farm for the year 1919; that no arrangements were then made, but on Sunday, the 24th day of November, 1918, the defendant again appeared at the witness’ farm and stayed all night with him that night, and on the morning of the 25th of November, 1918, defendant again came to the witness’ farm, carrying a bundle of merchandise which he said he had purchased in Waurika that day. And the witness further testified that among the articles in the bundle was a suit of boys’ clothing which he described as a gray mixture. The witness also testified that subsequent thereto he went to the store of G. W. Coker & Sons in waurika and picked out of their stock the particular suit of clothes that it is here complained of was erroneously admitted in evidence. And this witness also stated that this suit of clothes which he had selected from the stock of G. W. Coker & Sons was of the same pattern as that which the defendant brought to his house on the evening of November 25, 1918.”

Thereafter, when the defendant was a witness in his own behalf, he was presented on cross-examination with a photograph of his wife and two children, which defendant stated was taken in January, 1919, at Waurika, Okla., and at that time he and his family were living on the farm of the witness Phinn. This photograph disclosed that the son of the defendant was wearing a gray suit of clothes, and the court permitted this photograph to be introduced in evidence for the purpose of inspection by the jury to compare the suit as worn by the defendant’s son with that as identified by the witnesses Mrs. Tucker and Mr. Phinn. The admission of this photograph is also contended to be erroneous.

We cannot agree with either contention. This evidence was competent circumstantial evidence tending to connect the defendant with the commission of the crime.

It is also contended that the trial court erred in overruling defendant’s motion for a new trial, based on the ground of newly discovered evidence. Defendant contends that he discovered after the close of the trial that his wife would have testified, if called as a witness, that the defendant knew nothing about the suit of clothes that their son was wearing when the photograph was taken; that the defendant did not bring said suit of clothes to their home, and that she purposely concealed from the defendant any knowledge of said suit of clothes; that defendant is unable to prove these facts by any other witnesses, and was unable to have his said wife at the trial, and did not know that such evidence would be introduced by the state and for that reason was unable to meet it; and that if a new trial is granted him on this ground he will have said wife present at the trial. This motion was presented some three months ago after the judgment had been rendered, was heard and overruled by the court, and excepted to by the defendant.

The record discloses that the trial of this ease took place some five or six months after the preliminary examination. It also appears from the examination of the defendant that he knew at the time of the preliminary examination that among the articles alleged to have been procured by him on the forged check was a suit of boys’ clothing. The new evidence sought to be used as a ground for a new trial is that of the defendant’s wife. If the defendant had no knowledge of this suit of clothes, certainly his wife would have been the first person he would have inquired of concerning it, and the least amount of diligence on his part would have resulted in obtaining some sort of a statement from her relative to the possession of this suit of clothes by her and the boy. Defendant seems to have had no trouble to procure this statement after his conviction. All through the transcript of defendant’s testimony appear statements by him that he and his wife were not on friendly relations, and he endeavors to make it appear that his wife was trying to send him to the penitentiary for the purpose of getting the custody of their two children in a divorce proceeding which the defendant had theretofore instituted against his wife. It is a remarkable circumstance, therefore, that after the wife had secured the very thing defendant had contended she was after, to wit, his conviction for a felony, that she would, if she had ever held any animosity against him, then been willing to come to his rescue, and at the same time brand herself as a woman without sympathy or mercy.

Therefore, if on a new trial the wife of the defendant should be permitted to testify to the matters and things set up in the motion, we are inclined to believe it would have very little weight with the jury, and for that reason would not be likely to change the result, as there is ample evidence in this record, without the identification of the suit of clothes worn by the son of defendant, to justify his conviction.

It is also contended that the trial' court erred in permitting the state to introduce certain incompetent evidence in rebuttal. When the defendant was a witness he was asked on cross-examination if on November 25, 1918, and at the time he passed the forged cheek to G- .W. Coker & Sons, he had not also, in said store, to Mrs. Phelan, a clerk therein, presented another check drawn on the First National Bank of Addington for $35, with a request that she cash the same for him. Defendant denied any such occurrence, and in rebuttal Mrs. Phe-lan was called as a witness and testified substantially that the defendant was in the store at that time and presented her with such a check and requested that she cash it, and that she refused to do it.

This evidence properly should have been introduced in chief, as it was competent for the purpose of locating the defendant at the scene of the crime at the time of its commission. We do not believe, however, that its admission in rebuttal was such error as should, in view of the other incriminating evidence against defendant, resulted in reversal of this judgment.

Other alleged errors are complained of. We have carefully examined the record with respect to these assignments, and conclude that they are either without substantial merit or else not supported by the record. The defendant was accorded a fair and impartial trial, was given as wide a latitude in the presentation of evidence as the law would allow, and in our opinion his guilt was clearly established.

The judgment is affirmed.

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


author: DOYLE, P. J.

text:
    C. M. BROWN v. STATE.
    No. A-3798.
    Opinion Filed Feb. 21, 1922.
    (204 Pac. 314.)
    (Syllabus.)
    Larceny — Grand Larceny — Sufficient Evidence. In a prosecution, for grand larceny, evidence considered, and held sufficient to support the conviction, and no reversible error was committed on the trial.
    Appeal from District Court, Jackson County; Frank Mathews, Judge.
    C. M. Brown was convicted of grand larceny, and he appeals.
    Affirmed.
    S. B. Garrett, for plaintiff in error.
    The Attorney General and E. L. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, C. M. Brown, was- convicted on a charge of grand larceny, and was sentenced to be imprisoned in the penitentiary for a term of two years. From the judgment an appeal was taken by filing in this court on June 21, 1920, a petition in error with ease-made. No brief has been filed and no appearance made on behalf of plaintiff in error in this court. When the ease was called on the assignment, iti was submitted on the record.

The information charges the theft of 750 pounds of seed cotton, of the value of $134.45, the personal property of I. V. Pendergrass. The evidence for the state to support the allegations of the information is undisputed. The information is sufficient, and the Instructions of the court fully cover the law of the case. Finding no prejudicial error in the record, the judgment of the lower court is affirmed.

MATSON and BESSEiT, JJ., concur.


text:
    H. L. BENNETT v. STATE.
    No. A-3776.
    Opinion Filed Feb. 21, 1922.
    (204 Pac. 462.)
    (Syllabus.)
    1. False Pretenses — Information under “Bad Check” Statute— Sufficiency. — In an information based on chapter1 72, Sess. Laws 1913, sometimes known as the “bad check” statute, it is not. necessary to charge in specific terms that the person defrauded relied on the false representations made.
    2. Same — Elements of Offense — Sufficiency of Instructions. The instructions given relating to the elements of the ofíense held sufficient.
    3. Evidence — Evidence of Other Offenses to Show Intent. Evidence that may indicate the commission of other like offenses is not inadmissible whene it relates to acts, conduct, or declar. ations of accused which tend to show a guilty intent to perpetrate the particular offense charged.
    Appeal from District Court, Lincoln County; C. M. Peuquay, Judge.
    H. L. Bennett was convicted of violating the “bogus check statute” (chapter 72, Session Laws 1913), and sentenced to serve one year in the state penitentiary, and he appeals.
    Affirmed.
    Jarrett & Speakman, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   BESSEY, J.

“That H. L. Bennett* * * did then and there willfully, unlawfully, knowingly, and feloniously, and with the intent to cheat and defraud one H. E. Inman by means of a false instrument in writing, to wit, a check, which check is in words and figures as follows, to-wit: ‘Depew, Okla., May 2, 1919. The First State Bank. Pay to H. E. Inman, or order, $15.00, fifteen and no/100 dollars. H. L. Bennett' — offer and pass the said bogus check to the said H. E. Inman and represent to the said H. E. Inman that he, the said H. L. Bennett, had sufficient money in the First State Bank of Depew, Okla., with which to pay said check, and by means and aid of said representations and pretense, which were then and there false, the said H. L. Bennett did then and there willfully, unlawfully, knowingly, and feloniously and designedly, and with intent to cheat and defraud the said H. E. Inman, obtain from the said H. E. Inman the following described property, to wit: One size 12 Elgin watch, movement No. 21575315, in a ten-year gold filled case, of the value of $15, good and lawful money of the United States — whereas in truth and in fact all of said representations and pretenses were false and untrue, and the said H. E. Bennett then and there well knew that the same were false and untrue and the same were made by him, the said H. L. Bennett., to the said H. E. Inman with the intent to cheat and defraud the said H. E. Inman, as aforesaid. ’ ’

The statute under which this information was drawn is chapter 72, Session Laws of 1913, often designated the “bad cheek statute,” which reads as follows:

“Every person who, with intent to cheat and defraud, shall obtain, or attempt to obtain, from any other person or persons, any money, property, or valuable thing, by means or by use of any trick or deception, or false or fraudulent representation, or statement or pretense, or by any other means or instrument or device, commonly^ called the ‘ confidence game,’ or by means or by use of any false or bogus check or by any other written or printed or engraved instrument or spurious coin or metal, shall be deemed guilty of a felony, and, upon conviction, be punished by imprisonment in the penitentiary for a term not exceeding seven years.”

The testimony shows that the defendant, about the 1st of May, 1919, contemplated making a trip to his former home in Kentucky; that on the 2d day of May, 1919, after banking hours, he went to the jewelry store of H. E. Inman in Stroud, Okla., and purchased a watch from Mr. Inman, in payment for which he gave Mr. Inman a check payable to his order, drawn on the First State Bank of Depew, in the amount of $15; that night the defendant started on his trip to Kentucky; that at that time and for a period of two months or more prior to that time the defendant had no deposit in the bank at Depew; and that the Depew bank refused payment of the check for that reason. From the testimony of Jim West, cashier of the bank, and the testimony of A. L. Feu-shay and B. Ammerman, merchants of Stroud, witnesses for the state, and from the testimony of the defendant and of W. B. Bennett, his father, it appears that the defendant at this time and shortly prior to this time had given a number of other checks, payable to various persons, drawn on banks in which he had no funds.

This case was, without objections, tried before Hon. C. M. Feuquay, as special judge.

The defendant in his brief urges the following assignments of error:

(1) That the acts and proceedings of the special judge are void because the record does not disclose that the regular district judge was disqualified, nor that the special judge was selected as provided by law or that he was qualified.

(2) That the information is insufficient, in that it does not allege that Inman, the payee of the check, relied upon the representations of the defendant.

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

(4) Error of the court in instructing the jury, as given in instructon No. 6.

(5) Error of the court in refusing to give defendant’s requested instruction Ño. 1.

(6) Introduction of alleged incompetent testimony, over the objections of the defendant.

It does not affirmatively appear in the record that the regular presiding judge of the district court was disqualified to try this case, nor does it appear, except by implication, that the special judge was selected pursuant to agreement of parties. In the case of Kelly v. Roetzel, 64 Okla. 36, 165 Pac. 1150, it was said:

“The office of a judge pro tempore is thus recognized by both the Constitution and the statutes of this state, and when the parties below consented that Hon. John F. Curran should sit! as special judge upori the trial of _ this cause, and he did in fact preside during the trial thereof, he became a de facto judge, and, no objection having been made thereto at or during the trial, his authority cannot be questioned for the first time in this court. [Overruling Apple v. Ellis, 50 Okla. 80, 150 Pac. 1057.]
“Litigants should not be permitted to try a case without objection before a special judge,; taking chances upon the outcome of the trial, with! the intention of availing themselves of the benefits incident to a favorable result, and at the same time be accorded the, right to question the validity of such proceedings should an adverse verdict be rendered.”

It is fair to presume that the regular judge was disqualified, and that the parties agreed that Hon. C. M. Feuquay should sit as special judge; otherwise an objection would have been interposed at the time. Without further discussion or the citation of additional authorities, we think that the doctrine as announced in the case of Kelly v. Roetzel, supra, is sound and is applicable to the situation here involved.

It is next urged that the information is insufficient, because it does not allege that Inman relied upon the representations made. A careful reading of the statute above quoted discloses that such an allegation is unnecessary to constitute the offense here sought to be charged. A mere attempt to defraud is sufficient under this statute. Here the averments were that the defendant actually obtained from another money or property by means of a bogus check, constituting the offense under this statute. This was not a prosecution for obtaining money or property by false pretenses, as under the old English statutes, where it was usually necessary to allege and prove that the person defrauded relied upon the representations made. Under this statute, quoted above, we think this allegation was unnecessary. Douglas v. State, 15 Okla. Cr. 648, 179 Pac. 947; Williams v. Territory, 13 Ariz. 27, 108 Pac 243, L. R. A. (N. S.) 1032.

Our statute seems to have been borrowed from the 1901 General Statutes of Arizona (Pen. Code 1901, § 489); at any rate the language is identical. In the Arizona case it was held that obtaining money by means of a check upon a bank in which the drawer never had funds, or which he had no reason to believe would honor his check, is within the statute making it a felony to obtain money by the use; of any false1 or bogus check. There was no allegation in the information in the Douglas Case, which was held sufficient, that the party defrauded relied upon the false representations. It seems clear, therefore, that the allegations in the information were sufficient to constitute the crime as outlined by our, statute, and that the proof supporting the same is sufficient.

Instruction No. 6, of which defendant complains in his brief, is- in part as follows:

“If you find from the evidence in this case, beyond a reasonable doubt, that on the 2d day of May, 1919, in this county and state, the defendant, H. L. Bennett, with the intent to cheat and defraud one H. E. Inman, by means of a false instrument in writing, a worthless and bogus cheek, as alleged in the information in this case, heretofore read to you, obtained from the said H. B. Inman a size 12 Elgin watch, of the value of $15, and that the said defendant knew at the time he1 gave the said H. E. Inman the said check that it was a worthless and a bogusi check, and that he gave said check with the intention of cheating and defrauding the said H. E. Inman, your verdict should be that he is guilty as charged in the information.”

For the reasons before stated we think that this instruction was fair to the defendant and covered the essential elements of the crime. The offense charged is statutory, and it is not incumbent upon the state to prove any additional element of the crime commonly known as obtaining money by means of a false pretense beyond those specifically stated in the statute. We assume that one of the purposes of the enactment of this statute was to discourage and punish “bad check artists,” and to cover cases where a charge of the crime of obtaining money by means of false pretenses, under section 2694, R. L. 1910, might not apply.

Section 2694, R. L. 1910, is as follows:

“Any person who, with intent to cheat or defraud another, designedly, by color or aid of any false token or writing, or other false pretense, obtains the signature! of any person to any written instrument, or obtains from any person any money or property, is punishable by imprisonment in the penitentiary not exceeding three years or in the county jail not exceeding one year, or by a fine not exceeding three times the value of the money or property so obtained, or by both such fine and imprisonment.”

Defendant insists that if the information stated an offense at all, it stated an offense) under both statutes, and that he was entitled to have his offered instruction No. 1 given, providing for the lesser penalty, upon the theory that, where there is any doubt as to which statute applies, the question should be resolved in favor of the defendant, and that he should be given the benefit of the statute providing the lesser penalty, citing Bowes v. State, 8 Okla. Cr. 277, 127 Pac. 883, wherein it was held that—

“When a doubt exists as to whether an¡ information * * * charged a felony or a misdemeanor, the defendant should be given the benefit oí¡ the doubt, and the offense charged should be held to be a misdemeanor.”

In the Bowes Case the defendant was charged with in* ducing a witness to absent himself from the jurisdiction of the court to prevent his testifying in a criminal prosecution then pending. Section 2195, Compiled Laws 1909, makes it a felony to prevent or dissuade a person who has been duly summoned as a witness from attending court, pursuant to such summons. Section 2213,, Compiled Laws 1909, makes it a misdemeanor for any person to maliciously, by deceit or fraud, or by use of threats, malice, or violence, prevent the attendance of any witness in any action or proceeding. These statutes provide for the punishment in two ways of what might be the same offense and under the circumstances of the case the court was justified in making the declaration that, where there was any doubt as to which offense was charged, the defendant should be given the benefit of that doubt. It seems that in the instant case there could be no occasion for doubt. The defendant and his counsel and the court were sufficiently apprised' of the nature of the crime charged, and that it came within the purview of the 1913 statute, and the court committed no error, therefore, in refusing the instruction requested by the defendant. In our opinion the defendant was not tried under section 2694, R. L. 1910, and was not entitled to the lesser penalty therein provided.

Lastly, the defendant urges that the court erred in permitting the introduction of testimony tending to show that the defendant, about this time, had obtained money by the issuance of other bad checks. Ordinarily other offenses may not be shown except where they tend to explain or throw some light on the offense charged. It may be conceded that it would be no crime to innocently or inadvertently give another a worthless check, but evidence indicative of a contrary purpose is admissible showing acts, conduct or declarations of the accused which tend to establish intention, or motive, notwithstanding the fact that such evidence may disclose a different or separate offense. Here the defendant claimed that the cheek was negotiated in good faith and in a legitimate manner. Under such circumstances the state had a right to show, if it could, that it was not done in good faith, but that, on the contrary, the defendant was a habitual bad check artist, and intended to practice deceit in this particular instance. Montgomery v. State, 13 Okla. Cr. 652, 166 Pac. 446; Bond v. State, 9 Okla. Cr. 697, 129 Pac. 666; Carter v. State, 6 Okla. Cr. 233, 118 Pac. 264; 8 R. C. L. “Criminal Law,” § 197, and) cases cited; notes to People v. Molineux (N. Y.) 62 L. R. A. 193.

Finding no prejudicial error in this record, the judgment of the trial court is affirmed.

DOYLE, P. J., concurs.

MATSON, J., not participating.


text:
    WILLIE KIRK v. STATE.
    No. A-3778.
    Opinion Filed Feb. 24, 1922.
    (204 Pac. 465.)
    (Syllabus.)
    Appeal and Error — No Jurisdiction where no Summons in Error or Notice of Appeal. Where appellant, within the time allowed for taking an appeal, served no notice of appeal upon thte court clerk and the county attorney, as provided by section, 5992, Rev. Laws 1910, and no summons in error was issued and served upon the Attorney General, nor any waiver of the issuance and service ever made by him within section 5997, Rev. Laws, or any general appearance entered by him, the Criminal Court of Appeals has no jurisdiction to entertain the appeal on its merits and will dismiss it.

      Appeal from District Court, Kogers County; C. W. Mason,. Judge.
    Willie Kirk was convicted of burglary, and be appeals.
    Appeal dismissed.
    Anderson & Kelley, for plaintiff in error.
    George F. Short, Atty. Gen., and K. E. Woods, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This is an attempted appeal from a judgment of the district court of Rogers county, rendered on a verdict' finding the defendant, Willie Kirk, guilty of burglary and fixing his punishment at two years in the penitentiary.

The Attorney General has filed a motion to dismiss the appeal on the ground that no notices of appeal were served on the county attorney or clerk of the court and no summons in error was issued and served upon the Attorney General, or the same waived.

An examination of the; record discloses that the motion to dismiss is well taken. In the case of Burgess v. State, 18 Okla. Cr. 574, 197 Pac. 173, this court held that where appellant, within the time allowed for taking an appeal, served no notices of appeal upon the court clerk or county attorney, as provided by section 5992, Rev. Laws, and no summons in error was issued and served upon the Attorney General, nor any waiver of the issuance and service ever made by him within section 5997, Rev. Laws, or any general appearance entered by him, the Criminal Court of Appeals has no jurisdiction to entertain the appeal on its merits and will dismiss it.

For the reasons stated, the motion of the Attorney General to dismiss this appeal is) sustained, and the appeal is hereby dismissed.

MATSON and BESSEY, JJ., concur.


author: BOYLE, P. J.

text:
    JESSE A. BAKER v. STATE.
    No. A-3838.
    Opinion Filed Feb. 25, 1922.
    (204 Pac. 465.)
    (Syllabus.)
    Appeal and Elrror — No Jurisdiction Where, Record Contains no Copy of Judgment. Where an appeal is taken from an alleged judgment of conviction, and the transcript of the record or case-made contains no copy of the judgment of the trial court) this court does not acquire jurisdiction of the appeal, and such an appeal will be dismissed.
    Appeal from County Court, Ottawa County; C. S. Wort-man, Judge.
    W. R. Baker was convicted of assault and battery, and he appeals.
    Appeal dismissed.
    Jesse A. Harp, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and R. El Wood, Asst. Atty. Gen., for the1 State.
   BOYLE, P. J.

Plaintiff in error, W. R. Baker, was convicted on a charge of assault and battery inflicted on the person of one Yelva Jensen. The jury failed to fix the punishment. To reverse the conviction an appeal was attempted to be taken by filing in this court on August‘17, 1920, a petition in error with case-made. The petition recites that plaintiff in error, W. R. Baker, appeals from a judgment rendered against him on the 1st day of May, 1920, by the county court in and for Ottawa county, sentencing him to 30 days in the county jail. No brief has been filed, and there has been no appearance in behalf of the defendant in this court.

An examination of the record discloses that the case-made contains no, copy of the judgment referred to in the petition in error, and does not contain a journal entry of the judgment and sentence appealed from. By numerous decisions of this court it has been held that when an appeal is taken from an alleged judgment of conviction and the transcript of the record or ease-made contains no copy of the judgment of conviction, snob record or case-made presents no question to this court for its determination, and the appeal will be dismissed for want of jurisdiction. Harjoe v. State, 14 Okla. Cr. 187, 169 Pac. 659; Loyd v. State 12 Okla. Cr. 82, 151 Pac. 1190; Fowler v. State, 11 Okla. Cr. 157, 143 Pac. 658.

The case-made contains a copy of the verdict and motion for new trial. Inasmuch as the case-made does not contain a copy of the judgment of the trial court, we are of the opinion that this court is without jurisdiction to consider the appeal. The purported appeal is therefore dismissed.

MATSON and BESSEY, JJ., concur.