text:
    STATE v. A. L. McDONALD.
    No. A-2036.
    Opinion Filed January 3, 1914.
    (137 Pac. 362.)
    1. APPEAL — Notice, (a) Where the notices of appeal required by statute were served upon the county attorney and clerk of the court in which the judgment was rendered, an appeal will not be dismissed because a summons in error was not served or waived.
    (b) Where the notices of appeal required by statute have not been served, this defect may be cured by the service of a summons in error upon the Attorney General, or by securing a waiver thereof.
    2. 'TRIAL — -Right to Modify Accusation — Jury Trial, (a) The trial court has the power and lawful right, without the consent of the county attorney, where a defendant is charged with murder, to order the dismissal of said charge, and permit the defendant to plead guilty to manslaughter in either degree, and assess his punishment therefor without the intervention of a jury.
    (b) Both the state and defendant have the right to demand a trial by jury as to all controverted questions of fact, but where a defendant pleads guilty it is not necessary fpr the court to submit the question of punishment to a jury unless the defendant so demands.

      Appeal from District Court, Canadian County; John J. Carney, Judge.

    A charge against A. L. McDonald for murder was dismissed without consent of the county attorney, and he was permitted to plead guilty to manslaughter in the second degree, and his punishment assessed without the intervention of a jury, and the State appeals.
    Affirmed.

      C. J. Davenport and F. T. Roberson, Co. Atty., for the State.
    /. G. Ralls, for appellee.
   FURMAN, J.

First. A motion was made to dismiss this appeal because a summons' in error had not been issued or waived. This motion is based upon section 5997, Rev. Laws 1910, which reads as follows:

“Instead of the appeal hereinbefore provided for any party desiring to appeal to the Criminal Court of Appeals in any criminal case may proceed by case-made and petition in error in all respects with all the rights, as provided in ‘Procedure Civil,’ and the summons in error shall be served upon the Attorney General, unless the same is waived as in other cases. Instead of the case-made plaintiff in error may attach to his petition in error a transcript of the proceedings of record in the trial court.”

This section should be construed in connection with section 5992, Rev. Laws 1910, which reads as follows:

“An appeal is taken by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting attorney. If taken by the state, a similar notice must be served upon the defendant, if he can be found in the county; if not there, by posting up a notice three weeks in the office of the clerk of the district court.”

We are of opinion that section 5997 is an enlargement upon, and is not an abridgment of, the right of appeal. That is to say, if a notice of appeal has not been served upon the county attorney and upon the clerk of the court where the judgment.was entered, that ap appeal should not be dismissed for want of such notice, if a summons in error is issued as provided for in section 5997. In this case proper notices of appeal were served. It was therefore not necessary to issue or waive summons in error. The motion to dismiss the appeal is therefore overruled.

Second. As this was a prosecution in which the defendant was charged with the crime of murder, it is earnestly insisted by the Attorney General that the trial court did not have the power to dismiss the charge of murder, except upon the motion of the county attorney, and to permit the defendant to plead guilty to manslaughter in the second degree, over the objections of the county attorney. In some jurisdictions 'this is the law, but ,we think that the statute of Oklahoma settles this question adversely to the contention of the Attorney General. Section 6099, Rev. Laws 1910, is as follows:

“The court may either of its own motion or upon the application of the county attorney, and in the furtherance of justice, order an action or indictment to be dismissed; but in that case the reasons of the dismissal must be set forth in the order, which must be entered upon the minutes.”

The effect of this statute is to abolish the common-law right of the prosecuting attorney to nolle prosequi an indictment or information, except with the consent of the court. It goes further, and, under certain conditions,, vests the trial judge with the power, whenever in his judgment the interest of justice may require it, to order the dismissal of an indictment or information, with or without the consent of the county attorney. This is the law of Oklahoma, and by it we are bound. Independently of this statute, we are of the opinion that the trial court could rightfully exercise this power. It cannot be disputed that if, upon a trial for murder, there is no evidence tending to prove that the de-defendant is guilty of murder, and if all of the testimony in the case for the state simply tends to prove manslaughter, the trial court would be justified in submitting the issue of manslaughter alone to the jury. In fact, in such a case the court should in its instructions confine the consideration of the jury entirely to the question of manslaughter, in connection with any defense which the evidence might present. It is error for the court to submit an issue to the jury when there is no evidence to support it. There is a difference between insufficient evidence and no evidence as to the guilt of a defendant. If, in the opinion of the court, the testimony as to the guilt of a defendant is insufficient to warrant a conviction, the court may advise the jury to acquit the defendant (Pilgrim v. State, 3 Okla. Cr. 49, 104 Pac. 383), but, where there is absolutely no evidence as to his guilt, it is the duty of the court to instruct the jury to find the defendant not guiltjc In such a casé it would be folly to submit'the case to the .jury. Now,, if the court may order an acquittal where there is absolutely no evidence of the guilt of a defendant, with what show of reason could it be said that the court cannot order the dismissal of a case under similar circumstances? Why the necessity of putting the state and the defendant to a trial, when the court is fully advised that an offense cannot be made out? Section 6099 goes further than this. It authorizes the court to dismiss a case whenever in its judgment the furtherance of justice may be subserved thereby. It may be that the evidence would warrant a conviction, but, if the court is of the opinion that such conviction would be unjust and that the best interest of society would be subserved by the dismissal of a case, the statute above quoted authorizes such action. It must never be forgotten that the enforcement of justice is the sole object of the law.

The discretion conferred by the statute herein quoted is not an arbitrary discretion and is subject to review, and the state has the right to bring it to this court upon a reserved question, but this court will not assume that the trial court has abused its discretion in the absence of a showing to that effect. If the court refused to consider legal evidence which was offered by the prosecuting attorney, then such evidence should be incorporated Jn the record either by bill of exceptions or case-made. Nothing of the sort appears in this record. In the absence of such showing, this court will not revise the action of the trial court. It is claimed that the trial court was without authority to dispense with the verdict of a jury in'this case. It is true that our Constitution provides that the right of a trial by jury shall be inviolate, and we are of the opinion that the state as well as the defendant has the right to a trial by jury as to all controverted questions of fact, and that the court cannot proceed with such a trial without the consent of both parties. Dalton v. State, 6 Okla. Cr. 85, 116 Pac. 954. But where a defendant pleads guilty, there is nothing to try. It is true that where a defendant requests it, the question of punishment must be submitted to the jury, but where no such request is made by the defendant, or where the jury do not assess the punishment, this is a question for the-court alone. The statute does not point out what course must be pursued by the court before it" can order the dismissal of a case, or by what means it must inform., itself as to what punishment should be inflicted. This is a question for the judge to decide. vThese matters are within the discretion of the court, and an abuse of this discretion must be shown before his action will be reversed. Under the record in this case we fail to find that the trial court abused his discretion in ordering the dismissal of the charge of murder against the defendant, and in permitting him to plead guilty to manslaughter in the second degree, and assessing his punishment.

Judgment of the lower court is therefore in all things affirmed.

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


source: Caselaw Access Project

author: FURMAN, J. PER CURIAM.

license: Public Domain

text:
    M. L. HARRIS v. STATE.
    No. A-2061.
    Opinion Filed January 6, 1914.
    (137 Pac. 365.)
    Rehearing Denied April 11, 1914.
    1. TRIAL — Instructions—Appeal—Presentation for Review — Harmless Error, (a) The jury must be left free to determine for themselves whether the evidence is sufficient to satisfy the law, and an instruction which advises them on that subject invades the province of the jury to determine the weight and sufficiency of the evidence. See opinion for instruction held to be on the weight of circumstantial evidence.
    (b) It would be error for the court to instruct the jury upon the chain and link theory with respect to circumstantial evidence.
    (e) If attorneys desire to secure reversals on account of erroneous instructions to the jury, they must show that the defendant was injured thereby. The evidence produced on the trial should be incorporated in the record.
    (d) Where the evidence of the guilt of a defendant is conclusive, and where the jury could not have arrived at any other conclusion, an instruction upon the weight of the evidence will be harmless.
    (e) Where the testimony is not incorporated in the record on appeal, instructions which were erroneous will not be ground for reversal, if, under any conceivable state of facts, the defendant could not have been injured thereby.
    2. SAME — “Reasonable Doubt.’’ It is error for the trial court to instruct the jury that a reasonable doubt is one for which there exists a reason which an ordinarily intelligent man could readily give. Such an instruction deprives a defendant of the presumption of innocence, and shifts the burden of proof from the state to the defendant.
    3. APPEAL — Preparation of Case-Made. Where a defendant is able to employ counsel to represent him, and the trial court refused to enter an order requiring the testimony to be extended w'tliout expense to the defendant, such refusal will not constiiute ground for reversal, unless it affirmatively appears from the record (hat the defendant was a pauper, and that such counsel so employed could not have made up a statement of the evidence from memory, and that thereby the trial court had abused its discretion. Por circumstances which clearly sustain the ruling of the trial court in refusing to make such an order, see opinion.

      .Appeal from District Court, Greer County; G. A. Brown, Judge.

    M. L. Harris was convicted of grand larceny, and appeals.
    Affirmed.

      H. D. Henry, for appellant.

      C. J. Davenport, Asst. A tty. Gen., and A. R. Garrett, Co. Atty., for the State.
   FURMAN, J.

First. Counsel for appellant objected and excepted to the instructions of the court on the law of circum-stancial evidence, which instructions are as follows:

“(3) In this case the state relies for a conviction upon circumstantial evidence, and you are instructed that to warrant a conviction upon such evidence each fact necessary to establish the guilt of the defendant must be established by the evidence beyond a reasonable doubt; all the facts relied on must be consistent with each other, and taken together must be of a conclusive nature, leading on the whole' to a ■ satisfactory conclusion, and producing in effect a reasonable and moral certainty that the accused committed the offense charged. The mere union of any number of circumstances, each of an imperfect and inclusive character, will not justify conviction. They must be such -that, when taken together, generate and justify belief beyond a reasonable doubt of the guilt of the defendant on trial. It is not enough that they coincide with each other and render probable his guilt; but they must exclude every other x'easonable hypothesis. No other conclusion but that of the guilt of the accused must fairly and reasonably grow out of the evidence, and the facts and circumstances relied on must be incompatible with the innocence of the defendant, and incapable of explanation upon any other reasonable hypothesis than that of his guilt; otherwise the defendant must be acquitted.

“(4) It is not necessary, however, that every circumstance introduced and relied on by the state in and of itself be sufficient to establish the guilt of the accused, and in this case, if each fact and circumstance relied on, having relation thereto in some degree,, tends to prove the defendant guilty of the offense charged against him, and are consistent with each other and with the defendant’s guilt, and, when taken and considered together and as a whole, they are incompatible with his innocence, and inconsistent with any other reasonable hypothesis or conclusion than that of his guilt of the offense charged against him, and satisfy your minds to a moral certainty and beyond a reasonable doubt that the defendant, M. T. Harris, on or about the 29th day of January, 1913, in Greer county, in the state of Oklahoma, did fraudulently take, steal, and carry away from the town of Willow, in said county, the two bales of cotton described in the information herein, or either of them, with the intent of the said M. L. Harris to deprive the owner of said cotton thereof, and of the value of same, and you further believe from the evidence beyond a reasonable doubt that the cotton so taken, if any, was of value exceeding $20 at the time and place of the taking thereof, and were then and there the property of the Harriss-Irby Cotton Company, and were taken without the consent of the said Harriss-Irby Cotton Company, then the requirements of the lam as to the sufficiency of circumstantial evidence mill be satisfied, and in that event you should-find the defendant guilty of grand larceny as charged in the information, and so say by your verdict. If you are not so satisfied, and do not so believe, after a careful consideration of all the evidence in the case, you must acquit the defendant.”

After stating the law of circumstantial evidence more fully and favorably to appellant than the law requires, the court said:

“Then the requirements of the law as to the sufficiency of circumstantial evidence will be satisfied, and in that event you should find the defendant guilty.”

In considering a similar instruction in the case of Rose Smith v. State, ante, 133 Pac. 1136, decided June term, 1913, this court said:

“The weight of circumstantial evidence is not for the consideration of the court in its charge to the jury, but for the ex-elusive consideration of the jury in rendering their verdict, and the statement, ‘then the requirements of the law as to the sufficiency of circumstantial evidence will be satisfied,’ is erroneous as invading the province of the jury, who are the exclusive judges of the weight and sufficiency of the evidence. It is our opinion that the exception to this instruction, as a comment upon the weight and sufficiency of the evidence, was well taken, and that the defendant was thereby prejudiced.”

We still adhere to the ruling made in the Smith case, and think the instruction above quoted was a charge upon the weight of evidence, and should not have been given. It is an unnecessary and dangerous thing for courts, in charging upon the law of circumstantial evidence, to give lengthy and prolix instructions attempting to- explain the law applicable to this character of evidence. It is sufficient if they instruct the jury in such cases that the circumstances proven must not only be consistent with the guilt of the defendant, but must also be inconsistent with his innocence, and incapable of any other reasonable explanation except upon the ground that the defendant is guilty. The jurors must be presumed to be men of ordinary intelligence, and capable of understanding the English language, and there is no- danger that such men could be misled by the instruction suggested. See Star v. State, 9 Okla. Cr. 210, 131 Pac. 542. The court, should not have instructed the jury upon the chain and link theory with reference to circumstantial evidence as requested by counsel for appellant. See Ex parte Hayes, 6 Okla. Cr. 321, 118 Pac. 609; Ex parte Harkins, 7 Okla. Cr. 464, 124 Pac. 931; Ex parte Jefferies, 7 Okla. Cr. 544, 124 Pac. 924, 41 L. R. A. (N. S.) 749.

In the case at bar the testimony given upon the trial was not incorporated in the record; we are therefore unable to determine as to- whether or not the defendant was injured by the instruction given. If attorneys desire to secure a reversal for erroneous instructions, they must show that the defendant was injured thereby, and it is a rare thing indeed that this can be done unless the evidence in the case is incorporated in the record. The instructions must always be considered in connection with the testimony. In the case of Killough v. State, 6 Okla. Cr. 311, 118 Pac. 620, Judge Doyle, speaking for the court, said:

“Error must affirmatively appear from the record. It is never presumed. Every presumption is in favor of regularity of the proceedings had upon the trial. . The general rule often announced by this court is that the plaintiff in error must affirmatively show prejudicial error;- otherwise the judgment of the lower court will be affirmed. In the absence of a transcript of the evidence or any part thereof in the case at bar, the presumption is that the evidence was amply sufficient as to the guilt of the defendant of the offense charged. The position assumed by counsel for the defendant is that, if error is found in the instructions, the judgment of conviction must then be reversed, whether such error operates to the prejudice of the defendant or not. Such is not the .law in this jurisdiction. In many cases determined by this court, the contrary doctrine is announced. This court has often held that, when the instructions as a whole, taken and considered together, embrace the law of the case, though one of them may be erroneous, still, for such error, a judgment of conviction will not be reversed, unless it shall appear from the whole record that it was prejudicial to the substantial rights of the defendant, or by reason thereof it seems probable that injustice may have been done. The instructions here, taken as a whole, substantially and fairly present the law of the case. That is sufficient, and, for the reasons stated, we shall not attempt to decide whether or not the instructions complained of were erroneous.”

This opinion was followed and approved in the case of Thornsberry v. State, 8 Okla. Cr. 88, 126 Pac. 590. In the case of Brown v. State, 9 Okla. Cr. 382, 132 Pac. 359, this court held that, where the evidence of guilt is conclusive, an instruction upon the weight of evidence would be harmless. Following these decisions, section 6005, Rev. Raws 1910, was enacted, which in express terms declares that no judgment shall be reversed on the ground of misdirection to the jury, unless upon investigation of the entire record it affirmatively appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right. The testimony in this case might have been of such a character as to render the instruction given harmless. Suppose, for instance, that appellant took the witness stand in his own behalf, and that his testimony practically amounted to a plea of guilty; it would dearly be a miscarriage of justice to grant a new trial on account of the error complained of. In the case of Thornsberry v. State, supra, this court in express terms declared that, where the testimony is not brought up in the record on appeal, instructions, though erroneous, will not be ground for reversal where, under any conceivable state of facts which may have been proven, defendant was not injured thereby. The testimony in this case not being incorporated in the record, we are unable to say that appellant was injured by the instruction complained of, and therefore the case of Smith v. State, supra, is not in point; but it may be claimed that the testimony in the Smith case was not incorporated in the record, but this was satisfactorily explained in that case, because the record affirmatively shows that the defendant was a pauper, and was unable to employ counsel to defend her, and the trial court refused to allow the record to be made up without expense to the defendant. Defendant was therefore in no way to blame because the testimony was not in the record, and the case should have been reversed on this question also. See Jeffries v. State, 9 Okla. Cr. 573, 132 Pac. 823. In the case at bar an entirely different state of facts is made to appear. Appellant was represented by an attorney of ability and experience. No abuse of the discretion of the court appears in the record in refusing to direct the evidence to be made up without expense to the defendant.

•Second. Upon an examination of the entire-instructions of the court we find no Other material error therein save and except instruction No. 5J4, which is as follows:

“(S}4) The jury are instructed that a reasonable doubt is one for which there exists a reason in the minds of the jurors, founded upon the facts and circumstances in proof in the case, and is a state of mind of which an ordinarily intelligent man could readily give an explanation, consistent with the facts disclosed by the evidence, and the law, as given to the jury by the court.”

But we also find that counsel for appellant did not exce¡)t to this instruction. From this we infer that this instruction was given by request of counsel for appellant. The failure tc except to this instruction was equivalent to an agreement by counsel for appellant that it might be given. We are decidedly of the opinion that instruction No. 5J4 is not the law, and should not have been given; but, as it was not excepted to, we would not consider it now were it not for the fact that it is a verbatim copy of section 5876, Rev. Raws 1910, and therefore it may be repeated by other judges. We therefore think it our duty to pass upon this question now, and thereby prevent the unnecessary reversal of other convictions in the future.

Section 5876, Rev. Raws 1910, is as follows:

“A reasonable doubt is a doubt for which there exists a reason in the minds of the jurors, .founded upon the facts and circumstances in proof in the case, and is a state of mind of which an ordinarily intelligent man could readily give an explanation, consistent with the facts disclosed by the evidence, and the law, as given to the jury by the court.”

Immediately below this section we find the following:

“History. New section, defining ‘reasonable doubt’ in accordance with the reason and the weight of authority in order to settle the uncertainty thereon in this state.”

We suppose this was inserted for the purpose of explaining the section to which it relates. If so, the statement is based upon a misconception both of fact and of law.

Prior to statehood the people of what 'is now the state of Oklahoma were governed by two different and in many respects conflicting systems of criminal jurisprudence, namely, that in force in the western part of the state, which was formerly Oklahoma Territory, and that in force in the eastern part of the state, which was formerly Indian Territory. Since statehood the precedents established in these two territories have not been recognized as authorities by the courts of the state of Oklahoma except in so far as they construed statutes which remained in force in the state of Oklahoma. The criminal jurisprudence of the state of Oklahoma had its birth and origin at the incoming of statehood, and is based upon the conception that only those principles and precedents should be established and followed which were founded upon- reason and justice.- Consequently a great deal that was done by the courts in Indian Territory and Oklahoma Territory has been eliminated. It is a misstatement of fact to assert that there is any uncertainty as to the definition of “reasonable doubt” in the state of Oklahoma, and that the position assumed by the courts of Oklahoma on this question is not in accordance with reason and the weight of authority. This question was passed upon first by the Supreme Court of Oklahoma, before the organization of the Criminal Court of Appeals, in the case of Abbott v. Territory, 1 Okla. Cr. 1, 94 Pac. 179, 16 L. R. A. (N. S.) 260, 129 Am. St. Rep. 818, and again in the case of Gibbons v. Territory, 1 Okla. Cr. 198, 96 Pac. 466. The first opinion is by Chief Justice Williams; the second opinion is by Mr. Justice Turner. With unanswerable logic, and supported by the great weight of authority, these two opinions show that the instruction which we are now discussing amounts to the repeal of the presumption of innocence, and shifts the burden of proof from ■the state to the defendant, and is illogical, and a violation of the fundamental principles of law. These opinions by the Supreme Court of Oklahoma were adopted and approved by this court, and no opinion can be found dissenting therefrom.

Section 6 of the Bill of Rights declares that justice shall be administered without sale, denial, delay, or prejudice. Section 7 of the Bill of Rights declares that no person shall be deprived of life, liberty, or property without due process of law. The doctrines of the presumption of innocence, reasonable doubt, and that the burden of proof is on the state to establish by legal evidence the guilt of every person charged with crime, are fundamental principles of justice which constitute the very life and soul of our criminal jurisprudence. They should be written over the portals of every court, and are among the inalienable rights of every citizen of this free country. To place a man upon trial, and prohibit the jury from acquitting him, unless they entertain a reasonable doubt of his guilt founded upon the facts and circumstances in proof, and for which they can readily give an intelligent explanation consistent with the- facts disclosed by the evidence, would amount to a denial of justice, because a reasonable doubt may exist on account of the lack of proof on the part of the state, as well as on account of the facts proven by the defendant. It is often true that the wisest and best men entertain reasonable and serious doubts as to some propositions for which they could not give an intelligent explanation. The doctrines of reasonable doubt, the presumption of innocence, and the duty of the state to prove the guilt of a person charged with crime constitute a part of the due process of law, and the Legislature cannot in any manner deny or abridge these rights without violating the seventh section of the Bill of Rights. For these reasons, we hold that the instruction given is in direct conflict with the law, and that the statute upon which it is based is in violation of sections 6 and 7 of the Bill of Rights. Courts in Oklahoma are admonished not to give this instruction in the future, unless they desire to invite reversals of their judgments. In this case, as no exception was reserved to the instruction, and as a defendant may waive his constitutional rights, we cannot do otherwise than hold that the instruction was harmless error.

Third. In this case counsel for appellant contend the trial court erred in not entering an order requiring the court stenographer to extend into longhand, at the expense of Greer county, his notes of the testimony and proceedings in the trial of this cause, upon the ground that appellant was a pauper, and was unable to pay for the same. The appellant did file an affidavit to the effect that he was a pauper, and had no means to pay for the extension of the evidence and transcript of the case. Thereupon the trial court investigated the question, and entered the following order:

“On this the. 5th day of August, 1913, came on fa> be heard in open court the defendant’s motion for an order requiring the stenographer and clerk of this court to make and furnish the defendant with a case-made, including a complete extension of all the evidence and proceedings in the trial of this case into long-hand, at the expense of Greer county, and, it appearing to the court that the defendant had employed, at his own expenses, the Hon. Harry D. Henry to represent him in said trial, and the court having judicial knowledge of the fact that the Hon. Harry D. Henry had so represented the defendant upon his tidal in this cause, and there being nothing before the court to show that the said Hon. Harry D. Henry could not make a case-made, including all the proceedings and evidence introduced upon said trial, without the assistance of the said court stenographer and clerk of this court, the said motion is in all things overruled, to which ruling of the court, the defendant excepts, and exception is by the court allowed.”

Upon the authority of Jeffries v. State, 9 Okla. Cr. 573, 132 Pac. 823, the action of the trial court must be sustained. For in the Jeffries case it was expressly stated that, where a defendant had been able to employ lawyers to defend him, if for any reason the stenographer’s notes could not be obtained, then it was the duty of such lawyers to use their best exertion to make up a case-made from memory, and, if they failed to do so, the defendant would be held responsible for this neglect of duty on their part. Also, see Dobbs v. State, 5 Okla. Cr. 475, 114 Pac. 358, 115 Pac. 370. The writer of this opinion practiced law many years'in Texas before court stenographers were known in that state, and when, under the law, the evidence had to be written out as a matter of memory by the attorneys and filed -in court within ten days from the adjournment of .the term of court. The writer never had the least difficulty in preparing his statements of the evidence in his cases, and he knows from personal experience that it can easily be done. In fact he seriously doubts if the employment of court stenographers is at all necessary either in the administration of justice or to the development of lawyers. It has a tendency to breed carelessness on their part; but, be this as it may, the trial court has a large discretion as to when to order the stenographer’s notes to be extended without expense to a defendant, and this discretion will not be reviewed, unless it clearly appears from the record that it was arbitrarily used or abused.

There are a number of other propositions submitted by counsel for appellant, none of which have been overlooked, and all of which have been considered, and we are of the opinion that they did not affect the substantial rights of appellant, to his injury.

Judgment of the lower court is therefore affirmed.

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

ON REHEARING.

PER CURIAM.

On petition for rehearing we have considered the case very closely and our conclusion is that we must adhere to our first views.

' Our attention is called to the fact that plaintiff in error was unable to give bail pending the determination of his appeal. The judgment was rendered August 4, 1913, and he has in the meantime been confined in the county jail of Greer county. For this reason we have concluded to modify the judgment appealed from to read that the term of sentence is to begin at and from the day the judgment was rendered, and that the remainder of the two-year term of imprisonment be served in the state reformatory at Granite. ' The sheriff of Greer county is directed to deliver the-said M. E. Harris to the warden at Granite.


author: FURMAN, J.

text:
    J. H. PRICE v. STATE.
    No. A-1782.
    Opinion Filed January 10, 1914.
    (137 Pac. 736.)
    1. APPEAL' — Briefs—Sufficiency. It is an abuse of the privilege of filing typewritten briefs for counsel to úse paper which is so thin that what is written thereon can only be read with difficulty. Typewritten briefs should be upon paper of standard weight, and the work should be so executed as to be legible.
    2. EMBEZZLEMENT — Statutory Provisions — Attorneys. Section 271, Comp. Laws 1909, is not, and never was, a part of the Penal Code of Oklahoma, and is applicable only in disbarment proceedings against attorneys. _
    3. TBIAL — Conduct of Counsel — Dilatory Matters. The constant presentation and discussion of questions of law which have no application to a case, the making of dilatory pleas, and objecting and excepting to everything done in the trial of a cause, without reference to the substantial merits of a case, is a practice which should not be encouraged or tolerated by the courts.
    4. EMBEZZLEMENT — -Prosecution of Attorney — Defense. Where a lawyer from another state moves into Oklahoma, and, without securing admission to the bar of this state, holds himsolf oui to the public as a lawyer, and accepts business as such, and embezzles money collected by him as a lawyer, he cannot escape punishment upon the ground that he was never legally admitted to the bar of Oklahoma.
    5. SAME — Sufficiency of Evidence. For testimony which conclusively establishes the guilt of defendant, see opinion.

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

    J. H. Price was convicted of embezzlement, and appeals.
    Affirmed.
    The information in this case is as follows:
    “In the Name and by the Authority of the State of Oklahoma.
    “Now comes A. L. Emery, county attorney in and for the state and county aforesaid, and gives the court to know and be informed that one J. Ii. Price, late of the county of Blaine and 'state of Oklahoma, on the - day of January, in the year of our Lord one thousand nine hundred and ten, at and within the said county and state, was then and there an attorney at law, engaged in the practice of the law, and as such attorney at law, in the course of his professional business, the Grennell Vehicle Co. intrusted, employed, and delivered to the said J. H. Price the possession of a certain promissory note and claim, which said promissory note and claim the said Grennell Vehicle Co. was then and there the owner, in favor of the said Grennell Vehicle Co. and against one J. E. Winter and one Kate Winter, who were the makers of the said promissory note for the sum of $123.60, and interest thereon at. the rate of ten per cent, from date until paid, amounting in all to the sum of $130.55, for the purpose of collecting the said sum of $130.55 from the said J. F. Winter and from the said Kate Winter for the said Grennell Vehicle Co., and he, the said J. IT. Price, as such attorney at law, and in furtherance of his employment in the course of his professional business as such attorney at law by the said Grennell Vehicle Co., did, on August 29, 1910, collect from the said J. F. Winter and from the said Kate Winter, as part payment on said promissory note, the sum of $125.00 for the said Gren-nell Vehicle Co., and he, the said J. IT. Price, on the 25th day of November, in the year of our Lord 1910, did then and there unlawfully, willfully, intentionally, knowingly, wantonly, maliciously, feloniously, and fraudulently refused to pay over to the Grennell Vehicle Co. the said sum of $125.00 upon the demand made upon him, the said J. IT. Price, by said Grennell Vehicle Co., and he, the said J. H. Price, did then and there unlawfully, willfully, 'intentionally, knowingl3,) wantonly, maliciously, and feloniously, and fraudulently appropriate and embezzle the said sum of $125.00, the property of and owned by the said Grennell Vehicle Co., and intrusted to him, the said J. PI. Price, by the said Grennell Vehicle Co., as aforesaid, to his, the said J. PI. Price’s, own use and benefit, with the unlawful, willful, felonious, and fraudulent intent then and there on the part of him the said J. H. Price to deprive the said Grennell Vehicle Co. thereof as aforesaid, and lie, the said J. H. Price, did not then and there, or at an}^ time, claim any fees out of the said sum of $125.00 contrary to the form of the statute in such case made and provided and against the peace and dignity of the state.
    “A. L. Emery, County Attorney.
    “Witnesses indorsed: Frank W. Ferguson. August Do-brinski. O. G. Graalman. ,R. J. Smith. J. F. Winter. Kate Winter. E. J. Warner. A. La Rue.”
    Filed as follows:
    “Filed Aug. 25, 1911. E. J. Warner, Clerk, by Wm. B. Halbig, Deputy.
    “Filed Sept. 5, 1911. E. J. Warner, Clerk.”
    Frank W. Ferguson testified for the state: That he was the collector of the Grennell Vehicle Company, of Grennell, Iowa, and that it was his business to look after past due notes and renewals of the same. That on the 20th day of January, 1910, as such collector, he had in his possession for collection two notes payable to said company, and signed by J. F. Winter and Kate Winter. That on said date witness was introduced to appellant in Okeene as a lawyer, and as a lawyer appellant agreed to accept the notes, and have them renewed and secured by a mortgage. In conformity with such employment, said J. F. Winter did execute a note in the sum of $114, secured by a mortgage on land in Kansas. That' witness paid appellant $10 for his legal services in the matter. Witness received a note of $114.30, given by Winter, as renewal on the other notes. That afterwards some trouble arose about the land in Kansas, as the records there showed that it was not the property of Winter, and on the 17th day of March, 1910, witness returned the note to Price' to have the matter fixed up. That a new note was executed in the sum of $123.63, a part of which was for the payment of the services of appellant which was advanced and paid by witness. That this new note was delivered lo the witness, and that subsequent to that time, in August, 1910, it was returned to Price for collection. That on the 16th day of August, 1910, witness and appellant went out with a team to see Mr. Winter about collecting the note, and saw Winter at his threshing machine. Winter offered to give an order on Mr. Dobrinski for $140.55 for the amount of the note, and interest, and a fee of $10 to pay Price for going out there, provided that Dobrinski would accept the order for threshing which was yet to be done by Winter. That appellant and Winter went to see Dobrinski, and came back with an order for $125 on Dobrinski, signed by J. F. Winter, which was accepted by Dobrinski. Winter paid Price $2 out of his own pocket, and it was agreed that Price and Winter should adjust the attorney’s fee between themselves. Witness then accepted and took possession of the order, and witness and appellant returned to town. After they returned to town, witness delivered the order to Price for collection, and in November, 1910, witness learned for the first time that Price had collected this order; but Price claimed to witness that the money was tied up. That on November 14, 1910, witness went to see Price about this matter, and Price told witness that the money was tied up, and did not say anything about having collected it, but told witness that, if he would wait until the next morning at 9 o’clock, he (Price) would pay him the money.
    The following letter written by appellant was offered in evidence:
    “Okeene, Oklahoma, Sept. 23, 1910. F. W. Ferguson, Clinton, Okla. — Dear Sir: I got your letter yesterday. I kept after those fellows out there till I got Dobrinski’s check for $125.00, and Jake pi'omises to pay the rest in a few days. I want you to let this. stand as it is for a few clays, so I can use it as a leverage on Jake to make him come through. He is afraid of you, and I don’t want to stand loser, if I can help it. Let me hear from you. Yours truly, J. II. Price.”

      August Dobrinski testified for the state: That he was a farmer, and was acquainted with J. F. Winter and appellant. That during threshing time in 1910 witness had an agreement with Winter to do his threshing for him. That Winter and appellant came to see witness, and at their request witness accepted an order for $125. Something was stated at the time about Ferguson. Mr. Winter said to Price, “Suppose Ferguson gets after me?” Price replied, “Do not mind Ferguson; I will keep him off your back.” As soon as the threshing was over, witness deposited the money in the bank, and told Price the same day to present his order, and get the money. This was on the 25th day of August, 1910.
    O. G. Graalman testified that he was cashier of the Citizens’- State Bank at Okeene in 1910; that he was acquainted with appellant, J. F. Winter, and A. Dobrinski. Fie identified the check of A. Dobrinski given to appellant on the 25th day of August, 1910, in the sum of $125, which was indorsed by appellant, and the said money was placed to the credit of his personal checking account.
    E. J. Warner testified that he was clerk of the court of Blaine county, and said witness introduced in court, as exhibits, pleadings filed in the district court of Blaine county, signed by appellant as attorney.
    A. Da Rue testified that he was justice of the peace of Blaine county; that he was acquainted with appellant; that beginning in November, 1909, appellant filed a number of suits before witness as an attorney.
    The state offered in evidence the record of said justice of the peace, and from it it appears that appellant had filed a number of suits in the justice court of Blaine county as an attorney. The state then rested.
    Appellant testified in his own behalf: That he resided in Okeene, Olcla. That his business was collecting and practicing law where they would let him; but that he had never been admitted to practice law in Oklahoma. In January, 1910, witness Ferguson spoke to appellant about bringing suit on certain notes against J. F. Winter, and witness told him that he would charge him $15 to do so. That Ferguson replied that, if appellant was a good lawyer, he would pay it. The witness then testified at length as- to the circumstances under which the mortgage was obtained from Winter, and that the mortgage and new note were delivered (o Ferguson; that subsequently the mortgage and note were returned to witness, and that witness and Ferguson went out to see Winter about the matter, and that, after they reached Winter’s, witness had a private conversation with Winter, and went with Winter to see Dobrinski, and secured from said Dobrinski the order offered in evidence; and that said order was to be applied to the payment of claims which were held by witness on behalf of other parties. Appellant denied ever having turned the order over to Ferguson; that, after Ferguson and appellant returned to Okeene, Ferguson delivered the mortgage and note, which he held, to witness for collection. Witness denied positively that he had ever collected any money for the Grennell Vehicle Company.
    Appellant offered in evidence the deposition of J. F. Winter taken at Harrington, Kan. He testified that during the months of July and August, 1910, he gave appellant an order on A. Dobrinski for the sum of $125. The said order was for his indebtedness to Smidt & Co., and Ed Hockeday & Co., and said order was not for the benefit of the Grennell Vehicle Company. Witness was asked the question as to whether or not he was acquainted with Mr. Randolph, an attorney of Okeene, and witness denied having stated to said attorney that the $125 order from Dobrinski was to be paid to the Grennell Vehicle Company.
    Defendant rested.
    Mrs. Charles Wilson testified for the state in rebuttal that she heard appellant say to her husband that he (appellant) had been arrested, and had been unable to sleep for two weeks; that he was going to Harrington, Kan., where he could buy any kind of evidence that he wanted. Fie said that he would take the deposition of the witness there. At this time Price was attorney for her husband, and had been paid $50 to defend him on the charge of rape.
    E. S. Randolph testified that he was an attorney residing at Okeene; that he was acquainted with J. F. Winter; that J. F. Winter had told witness that he had been given an order by August Dobrinski to pay the note due the Grennell Vehicle Company.
    The state proved by a number of witnesses that the general reputation of J. F. Winter for truth and veracity was bad in the community in which he resided.
    Appellant was convicted of embezzlement, and appeals. Af - firmed.

      William 0. Wool-man, for appellant.

      Smith C. Matson, Asst. Atty Gen., for the State.
   FURMAN, J.

(after stating the facts as above). First. This court permits typewritten briefs to- be filed; but, when this is done, they should be executed in such a manner as to be legible. It is a violation of the rules of this court to file briefs typewritten upon paper which is so thin as to make what is written thereon scarcely legible. In such briefs paper of standard weight should be used, and the work should be so executed as to be legible. In this cause a typewritten brief of 58 pages was filed, which could only be read with great difficulty, and the court was compelled to waste much valuable time and labor in trying to find out what counsel for appellant was driving at. We have frequently had occasion to condemn the practice of filing such briefs, and trust that we will not find it necessary to do so in the future. If this admonition is not heeded, we will be compelled to strike such briefs from the record.

Second. As we gather from the brief of counsel for appellant, the contention is that the information in this cause should have been based upon section 271, Comp: Laws 1909, which is as follows:

“An attorney who receives money or property of his client’s and in the course of his professional employment or business, and fails for a period of thirty days after receiving the same to notify his client, and on demand to pay over to his client all of said money or property in excess of his agreed fee, if there be an agreed fee, and if not then in excess of a reasonable fee, shall be guilty of embezzlement and shall be disbarred, and may be disbarred without being prosecuted for embezzlement. An attorney who, at or before the time of the passage of this act, shall have, collected money for a client and does not report and pay over the same to his client within thirty days after the passage of this act, shall be disbarred. If the property in any event is held for more than thirty days on the written order of the client, or if delivery is prevented by any cause (other than by the use of the property by the attorney) wholly beyond the control of the attorney, then he shall not be guilty of embezzlement nor be disbarred, but the burden shall be on the attorney to prove the cause of the delay.”

The trial of the case was conducted, and appellant was convicted, under section 2613, Rev. Laws 1910, which is as follows :

“If any person being a trustee, banker, merchant, broker, attorney, agent, assignee in trust, executor, administrator or collector, or being otherwise entrusted with or having in his control property for the use of any other person, or for any public or benevolent purpose, fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement.”

The information could not have been founded upon section 211, as contended for by counsel for appellant, because said section is not, and never was, a part of the Penal Code of Oklahoma, and therefore could not be the basis of a criminal prosecution. It was a part of the civil law of Oklahoma regulating the conduct of attorneys, and applied to disbarment proceedings. This disposes of a great deal that is said by counsel for appellant which it is unnecessary to discuss here. The information in this case was properly based upon section 2613, Rev. Laws 1910, and the proceedings were properly conducted according to this section.

' ■ Third. When the first witness for the state was placed upon the stand, counsel for appellant interposed the following objections to the introduction of any testimony in the cause:

“Mr. Woolman: Defendant objects to the introduction of any evidence on behalf of the state in this case, for the reason that the information does not state facts sufficient to constitute a crime under the laws of the state of Oklahoma. The Court: Overruled. Mr. Woolman excepts. Mr. Woolman: For the further reason that there was no preliminary examination had in this case prior to the commencement of the action in the district court, as is shown by the record and proceedings had on the motion heretofore had in this cause. The Court: Overruled. Mr. Woolman excepts. Mr. Woolman: For the further reason that this cause was not brought. on trial within — at the second term succeeding the time of the filing of the original information in this court, as shown by the proceedings had herein prior to the commencement of the trial. The .Court: Overruled.”

The information follows the language of the statute, and is sufficient as against the objection made. The objection that there had been no preliminary examination prior to the filing of the information in the district court cannot be presented in this manner, and is otherwise insufficient, because the record affirmatively shows that such a preliminary examination did take place. The objection that the case was not tried within the second term of the court after the information was filed, in the absence of a showing that appellant was ready for trial, and demanded a hearing, and objected to the continuance of the cause, cannot be considered. See Head v. State, 9 Okla. Cr. 356, 131 Pac. 937; Parker v. State, 7 Okla. Cr. 238, 122 Pac. 1116, 124 Pac. 80; Bowes v. State, 7 Okla. Cr. 316, 126 Pac. 580.

The record in this case contains nearly 4-00 pages, and from beginning to end is full of such objections and exceptions as above stated. The constant presentation and discussion of questions of law which have no application to the case, making dilator}^ pleas, and objecting and excepting to everything done in the trial of the cause, without reference to the substantial merits of the case, cannot do otherwise than weaken the defense. It makes the impression upon the minds both of the jury and of the court that the defendant is guilty, and is relying solely upon the technical skill of his counsel to secure an acquittal. It also unnecessarily consumes a great deal of time which should be devoted to the consideration of the actual merits of the cause. or in the trial of other cases. It delays the administration of justice, incumbers the record, and adds greatly to the cost of criminal trials, and thereby entails an unjust burden on the state, and no good purpose whatever can be subserved by pursuing such a course, and it should not be encouraged by the courts.

Fourth. At great length counsel for appellant argues that this conviction cannot be sustained, because the record shows that appellant was never legally admitted to the practice' of law in the state of Oklahoma. The record does show, however, that appellant was legally admitted to practice law in the state of Illinois, and as a matter of fact he held himself out to the public as a lawyer, and did practice law in Blaine county, Okla.; that he appeared as an attorney in a number of cases; and that he accepted employment and received pay in this case as an attorney. It is true that such conduct was illegal; but the commission of one crime can never be pleaded as an atonement for the commission of another crime. In ancient days under the common law the members of the clergy were not subj ected to capital punishment; the presumption being that, on account of their supposed exceeding goodness, there must be some mistake, and they would not have willfully violated the law. Counsel for appellant seeks to reverse this rule, and claims that, on account of his exceeding badness, appellant should not be punished. The very question here presented is identical in principle with the question presented in the case of Ellington v. State, 7 Okla. Cr. 252, 123 Pac. 186. It was there held:

“Where a guardian is charged with embezzlement of the trust funds of his ward, he cannot be heard to say that such funds were unlawfully acquired by him as such guardian. If he was agent enough to collect the money, he was agent enough to be punished for its embezzlement.”

In this case, if Price was attorney enough to accept employment to collect this money, he is attorney enough to be punished for embezzling it.

Bishop, in his work on Criminal Law (3d Ed.) sec. 367, says:

“In reason, whenever a man claims to be a servant while getting into his possession, by force of his claim, the property to be embezzled, he should be held to be such on his tidal for the embezzlement. Why should not the rule of estoppel known throughout the entire civil department of our jurisprudence apply in the criminal?”

The lawyers of Oklahoma can rely with confidence upon the support and protection of this court whenever their conduct is professional; but we are not going to stretch the law to screen and protect any lawyer who has been guilty of dishonorable practices. Leniency on the part of the courts and of the members of the bar towards such conduct has done more than any one cause to discredit the profession in the eyes of honest people. The time has come when the members of the bar and courts should act in such matters without fear, favor, or affection, and with a strong hand purge the profession of all unworthy characters. Practicing law is a necessary and honorable profession, and it should be confined to honest men. Lawyers should be held to the strictest accountability. Their opportunity for wrongdoing is great, and the public and profession should be protected from the illegal acts of dishonest lawyers.

Fifth. The testimony of the state’s witness Ferguson that the Dobrinski order was placed by him in the hands of appellant for collection, to be applied to the debt due the Grennell Vehicle Company, is fully corroborated and sustained by a letter written by appellant on September 23, 1910. This letter is an admission of all the state contends for on this point. Out of the appellant's own mouth he stands condemned. It is true that in Winter’s deposition said witness denied that the Dobrinski order was given for this purpose; but the testimony of E. S. Randolph, who, so far as this record goes, appears to be entirely credible, shows that Winter had told said witness that the Dobrinski order was for the purpose’ of paying the note due the Grennell Vehicle Company. It was also proved by a number of witnesses that the general reputation of Winter for truth and veracity in the community in which he resided was bad. It was also shown that appellant, before taking the testimony of the said Winter, had stated that he was going to purchase his testimony, and that he could buy any kind of evidence he wanted. There is not one line of credible evidence in this record which would indicate good faith on the part of appellant. All of the testimony points to his guilt as conclusively as the spokes of a wheel point to the hub as a common center. ■

Counsel for appellant has presented fourteen specifications of error. We have considered each and every one of them in connection with the record, and find that they are each and all without substantial merit. Not one of them presents even a debatable question. The plain and simple truth is that, according to this record, appellant is guilty, and it would be a miscarriage of justice to set aside this verdict and judgment on the grounds relied upon.

Judgment of the lower court is therefore in all things affirmed.

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


author: DOYLE, J. DOYLE, J.

text:
    LOUIS REMILLARD v. STATE.
    No. A-1672.
    Opinion Filed January 10, 1914.
    On Rehearing January 19, 1914.
    (137 Pac. 370.)
    1. APPEAL — Questions of Pact. Where there is a direct contradiction between the testimony of the complaining witness and that of the defendant, it is for the jury to determine which is worthy of belief, and their determination ordinarily will be sustained.

      2. TRIAL — Instructions—Presumption of Innocence. The court instructed the jury in part as follows: “But, if you find from the evidence that he did not sell, or assist in the sale, or give or otherwise furnish, or assist in giving or otherwise furnishing the said liquor to the said Glen Hall, then you should acquit him. ’ ’ Held error, because it in effect required the jury, before finding for acquittal, to believe from the evidence adduced that the defendant was innocent, and substantially instructs against the presumption of innoeenee until his guilt has been established beyond a reasonable doubt.

      Appeal from County Court, Bilis County; A. L. Squire, Judge.

    Louis Remillard was convicted of a violation of the prohibitory law and appeals.
    Reversed.

      C. B. Leedy, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (Herbert M. Peck, of counsel), for the State.
   DOYLE, J.

This appeal is prosecuted from a conviction had in the county court of Ellis county on the 31st day of January, 1912, in which plaintiff in error was found guilty of unlawfully selling to Glen Hall one pint of whisky, and in accordance with the verdict of the jury he was sentenced to be confined for 90 days in the county jail and to pay a fine of $150.

The complaining witness, Glen Hall, testified that he went to the defendant’s livery barn and asked him if there was anything around there to drink, and defendant replied that he did not know, but that he might find some in the manger; that he went to the manger, and found a pint of whisky, and left a dollar, and as he left the bam he told the defendant that he had left a dollar in the manger, and defendant replied, “All right.”

The defendant as a witness in his own behalf stated that Glen Hall came into his barn on several occasions and asked him .for whisky, but .that he had never sold any to Hall, or kept any at the barn' for sale, and denied that he said to Hall that he might find some in the manger.

These were the only witnesses who testified. There is a direct conflict in the evidence on the part of the state and that of the defendant. The jury had the witnesses before them, and could see their manner of testifying, and they, no doubt, in determining the truth, took into consideration all the attending circumstances of the case. The evidence was sufficient to satisfy the jury that the statute had been violated, and if there is sufficient evidence to sustain the verdict it must stand.

It appearing that the defendant has had a fair trial, the judgment of the lower court is affirmed.

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

On Rehearing.

DOYLE, J.

A petition for rehearing has been filed in which it is averred:

“That this court in rendering its decision in this cause, overlooked the decisive question upon which this case was appealed, and the important question submitted in the motion for a new trial, and in the petition in error, to wit, that the court materially and manifestly erred in giving that part of instruction number four, which reads as follows: ‘But if you find from the evidence that he did not sell, or assist in the sale, or give or otherwise furnish, or assist in giving or otherwise furnishing the said liquor to the said Glen Hall, then you should acquit him.’ ” — Citing the case of Weber v. State, 2 Okla. Cr. 329, 101 Pac. 535.

It is our opinion that this paragraph of said instruction is clearly erroneous, and in giving it the court misdirected the jury, to the prejudice of the substantial rights of the defendant. This paragraph, in effect, deprives the defendant of the benefit of the presumption of innocence. It required the jury to believe from the evidence that he was innocent before they could find him not guilty, and imposed upon him the burden of proving his innocence.

A defendant is presumed to be innocent until the contrary is proved and the jury must presume his innocence until his guilt has been established beyond a reasonable doubt, and in case of a reasonable doubt it was their duty to acquit him, although they might not find from the evidence - that he did not sell or assist in the sale or otherwise furnish the said liquor to Glen Hall as charged in the information.

For the giivng of said instruction the judgment is reversed and a new trial awarded.

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


author: PER CURIAM. FURMAN, J.

text:
    M. A. STITCH v. STATE.
    No. A-1857.
    Opinion Filed November 15, 1913.
    Rehearing Opinion December 23, 1913.
    (137 Pac. 887.)
    1. ' EVIDENCE — Admissions—Pleading in Civil Action. Where a defendant is upon trial charged with selling whisky or having whisky in his possession with intent to sell the same, it is competent for the state to show, either by direet evidence or by his own admissions, that he was engaged in the business of selling whisky.
    2. INTOXICATING LIQUORS — Unlawful Sale — Defense. The fact that a defendant represents a whisky house in another state and delivers whisky on commission to customers in Oklahoma is no defense to a charge for selling such whisky, or having said whisky in his possession with intent to sell same. Landrum v. State, 9 Okla. Or. 599, 132 Pac. 830, reaffirmed. The idea that this court is or ever has been unfriendly to prosecutions for violations of the prohibitory liquor law is absolutely without support in fact, and does great violence to the truth.

      Appeal from County Court, Payne County; W. H. Wilcox, Judge.

    M. A. Stitch was convicted of violating the prohibition'law, and appeals.
    Affirmed, and motion for rehearing overruled.
    /. M. Springer, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, M. A. Stitch, was convicted at the January, 1912, term of the county court of Payne county on a charge of unlawfully selling intoxicating liquor, and his punishment fixed at imprisonment in the county jail for a period of six months, and a fine of $200. Upon a careful examination of the record we find' no error sufficient to jus-tif)' a reversal of the judgment. It is therefore in all things affirmed.

OPINION On Rehearing.

FURMAN, J.

On account of sickness the writer did not participate in the consideration and determination of this cause when fit was first decided; but he has carefully examined the record since the motion for reliearing was filed, and finds that the motion is not only without merit, but he is surprised that it should have ever been filed.

The evidence shows conclusively that appellant is guilty of the crime of which he was convicted. Only one alleged error is relied upon in the motion for a rehearing, and that is that the trial court erred in admitting in evidence the pleadings in a certain civil suit which had been pending in the county court of Payne county, and in which Danciger Bros., of Kansas City, Mo., were plaintiffs, and M. A. Stitch and L. R. Doolin were defendants, and in which the plaintiffs endeavored to recover from defendants the sum of $143.75, alleged to be due and unpaid on certain brands of whisky sold by plaintiffs to defendants. The total amount of whisky sold by plaintiffs to defendants was alleged to be of the 'value of $2,101.88, for which they had received payment, with the exception of the said $143.75. The answer of the defendants to this suit was also offered in evidence. It was sworn to by appellant. Attached to this answer was an itemized statement as to all of the whisky received by defendants from'the plaintiffs, and the payments made thereon by defendants, in which the defendants claim that they had overpaid plaintiffs for the whisky received the sum of $762.75, and sought a judgment against the plaintiffs for this amount upon a cross-petition. This was an admission of record by appellant, so far as this case is concerned, of all of the material facts stated in the pleadings received in evidence.

It is contended by counsel for appellant that this evidence was not admissible and, in support of this contention, .the case of Spear v. State, 7 Okla. Cr. 379, 123 Pac. 852, is cited. It is true'that in the Spear case it was held that it was error for the trial court to permit the introduction against the defendant of a petition filed in the district court of Jackson county, Oída., in which it was sought to obtain an injunction against a number of persons prohibiting the sale of liquors in a certain house; but there was nothing in the record which in any manner connected Spear with the petition admitted-in evidence, except the naked allegations therein contained. It was therefore hearsay, pure and simple, so far as the defendant was concerned. We adhere to the ruling in the Spear case, but we are amazed that counsel should rely upon the Spear case as an authority in his favor, when, as a. matter of fact, it is the strongest kind of authority against him. In the Spear case it was expressly stated:

“If this petition had been prepared by authority of appellant, it would have been competent evidence against him, as an admission of the statements therein made.”

In the case at bar the answer introduced in evidence was not only prepared by authority of appellant, but it was sworn to by him. It admitted that he had purchased the whisky as alleged in the complaint, and claimed that he had overpaid the plaintiffs in the sum of $762.75 therefor, and by cross-petition defendants sought to recover this amount from plaintiffs. This answer established the fact that appellant was doing a wholesale whisky business in the town of Stillwater, Okla.

It is true he claimed that this whisky had been sold and handled by him upon a commission, but this in no manner mitigated his offense. See Landrum v. State, 9 Okla. Cr. 599, 132 Pac. 830. Men cannot resort to such subterfuges as this in violating the prohibitory law, and escape punishment. The only way in which we can understand how counsel for appellant could have conceived the idea that such a defense would for one moment be tolerated by this court is that he did so upon the hypothesis that this court was unfriendly to prosecutions for violations of the prohibitory liquor law. Such an idea is absolutely without support in fact, and does great violence to the truth. This court has never hesitated to go to the limit of the law in sustaining convictions in such cases. If counsel had examined the opinions of this court, he would never have filed this motion for a rehearing.

From the record in this case, appellant should have received the extreme limit of the law, and it is fortunate indeed for him that the law making such an offense a felony had not been, adopted at the time of the commission of this offense. The motion for rehearing is overruled.

The mandate will issue without further delay.

ARMSTRONG, P. J., and DOYRE, J., concur.


text:
    WILLIAM REED v. STATE.
    No. A-1997.
    Opinion Filed January 10, 1914.
    (137 Pac. 369.)
    APPEAL — Jurisdiction—Proceedings After Remand, (a) When a defendant has been convicted in a trial court, and an appeal is taken to the Criminal Court of Appeals, the jurisdiction of said trial' court over said case is lost, and said court has no right to make any order or render any judgment in such ease except as directed by the Criminal Court of Appeals, and any such order or judgment or action taken would be a nullity.
    (b) After a case has been affirmed on ajipeal to the Criminal Court of Appeals, and is sent back to the trial court, the trial court has no power to set aside said judgment, but it must be carried into execution as directed by this court; otherwise the enforcement of criminal law in Oklahoma would be involved in endless confusion.

      Appeal from Cotmty Court, Canadian County; W. A. Maurier, Judge.

    William Reed was convicted of violating the prohibitory law, and appeals.
    Dismissed.
    On the 20th day of November, 1911, appellant was convicted in the county court of Canadian county for having violated the prohibitory liquor law, and his punishment assessed at a fine of $500 and six months’ imprisonment in the county jail. From this judgment of conviction he prosecuted an appeal to the Criminal Court of Appeals. On the 13th day of January, 1913, judgment of the lower court was affirmed on said appeal. See Reed v. State, 8 Okla. Cr. 738, 128 Pac. 911. On the 24th day of March, 1913, the mandate of the Criminal Court of Appeals was received by the county court of Canadian county with directions to said court to proceed with the execution of the judgment. Thereafter on the 16th day of April, 1913, appellant filed in the county court of Canadian county what is .styled a motion for new trial, based upon alleged newly discovered evidence, fraud, accident, and mistake. On the '20th day of April, 1913, the county court of Canadian county sustained a motion filed by the county attorney to strike out said motion for a new trial. To which the appellant excepted, and the county judge fixed the time in which an appeal might be taken to this court from said order. Appeal dismissed.

      Giddings & Giddings, for appellant.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   FURMAN, J.

(after stating the facts as above). When-the appeal was taken, the Criminal Court of Appeals acquired jurisdiction of the cause, and the county court lost jurisdiction and all control over the case, and had no right to make any order or enter any judgment in said case, and any such order or action if taken would have been a nullity. It would be an absurdity to say that the cause could be legally pending in two courts at the same time. The jurisdiction of one must yield to the other. When the case was affirmed, it was returned to the county court, but only for the purpose of carrying out the final judgment of this court. As was well said in the case of State v. Turner, 39 S. C. 420, 17 S. E. 885:

“A different ruling, in the language of Chancellor Gaillard in Perkins v. Lang, 1 McCord, Eq. [S. C.] 31, note, cited in Ex parte Knox, 17 S. C. 214, involves the inconsistency: 'That after a case has been solemnly determined by this court in the last resort, a single judge in the circuit court might cause the decision to be again brought into question. This cannot be. It would utterly destroy the symmetry of the law, tend to prolong litigation and to produce endless confusion.’ ”

This is not only the law upon reason and authority, but is absolutely settled by our statute. Section 6007, Rev. Laws 1910, is as follows:

“On a judgment of affirmance against the defendant the original judgment must be carried into execution, as the appellate court may direct.”

Both upon authority and upon the statute the county court should have paid no attention whatever to the pretended motion for a new trial, but should have proceeded at once with the execution of the judgment. Under these conditions no court has the right to interfere by habeas corpus proceedings, injunction, motion for'new trial, or in any manner, with the execution of the mandate of this court. There must be an end to litigation.

The pretended appeal is therefore dismissed, and the county court is directed to proceed at once with the execution of the judgment. Mandate will issue insianter.

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


author: DOYLE, J.

text:
    J. P. KILGORE v. STATE.
    No. A-1837.
    Opinion Filed January 10, 1914.
    (137 Pac. 364.)
    1. TRIAL — Exclusion of Witnesses. Where the court orders witnesses to be sworn and excluded from the courtroom during the taking of testimony, and when the order of the court is willfully violated, it is a matter within the discretion of the court to allow or exclude the testimony of such witness.
    2. APPEAL — Modification of Judgment. Under section 6003, Rev. •Laws 1910, this court has the power, in the furtherance of justice, to modify any judgment appealed from by reducing the sentence.

      Appeal from District Court, McCurtain County; A. H. Ferguson, Judge.

    J. P. Kilgore was convicted of aggravated assault, and appeals.
    Modified and affirmed.

      N. W. Gore, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State;
   DOYLE, J.

This appeal is prosecuted from a judgment of conviction rendered on the Sd'th day of February, 1912, in which the defendant was found guilty of aggravated assault, and his punishment assessed at imprisonment in the penitentiary for a period of one year.

The evidence shows that the defendant, J. P. Kilgore, and the prosecuting witness, John Bullard, were both tenants of one Dr. Deberry, on land near Shawneetown, in McCurtain county. It appears that during the crop season of 1911, both of these tenants had raised some cane, and Bullard was a manufacturer of a sorghum molasses which he put up in one gallon buckets, branded, “Bullard’s Famous Ribbon-Cane Syrup.” The demand for his syrup was such that he could not supply it, and he arranged with Dr. Deberry to purchase a quantity of molasses that was due as rent from the defendant. The delivery of this molasses was made on the day of this difficulty. Dr. Deberry went to the defendant’s house and agreed with the defendant as to the amount of sorghum due to him. Bullard went to the defendant’s house to get the sorghum, which' was on the porch of the defendant’s house; he drove his wagon along the side of the porch, and while they were loading the sorghum cans into his wagon, he asserted that the defendant was defrauding Dr. Deberry out of part of his rent. Dr. Deberry had settled on 65 cans for his share. Bullard claimed that he should receive 71 cans. The prosecuting witness testified that the defendant then said, “You have been meddling with 'me and my business all the year,” and struck him with a knife, and that the defendant’s wife and daughter cried out: “Don’t do that! Don’t do that, pa!”

The defendant, as a witness in his own behalf, testified that he was 71 years of age; that he “growed” a patch of cane on a piece of Johnson grass land, and hauled the cane to “Bullard’s to make it up, and asked him to allow Dr. Deberry’s ■ share to remain at the sorghum mill,” but Bullard would not permit it, ' so he hauled the sorghum home, and set it on the porch of his house, and he told Dr. Deberry that it was there for him; that on the day of the difficulty he hitched up his team and was ready to go to the gin with cotton, and Bullard came along and said he wanted Dr. Deberry’s sorghum, and he told him it was on the porch, to go and get it, and Bullard said he was not going to have anything to do with it unless he went with him; that when they had loaded 65 buckets, Bullard claimed that the rent was 71 buckets, and said, “Where is that fifteen buckets of molasses that I let you have ?” and defendant told him, “You gave me that fifteen buckets for a piece of cane;” that his wife and daughter were present, and Bullard called him a liar, and that, “He got me in a little bit of a rage, and I guess I done what I ought not to have done.”

Malinda Kilgore, daughter of the defendant, called as a witness for him, was not permitted to testify in his behalf. The county attorney objected, because she was present in the court'room and heard the testimony of the witnesses on the part of the state, in violation of the order of the court.

Several assignments of error are made here, and relied upon for a reversal of the judgment. However, in view of the fact that the defendant by his testimony admitted the facts necessary to a conviction, we are not prepared to say that the rulings of the court upon which the errors assigned are based constitute reversible error.

It is the practice of courts, whenever requested, to have all the witnesses, both for the state and the defendant, called and sworn, and then instructed to retire beyond the limits of the courtroom, and there remain, without communication with any one as to what may have been testified to in the trial, until they are called to testify. And where the order of the court is willfully violated, it is a matter within the discretion of. the court to allow or exclude the testimony of such witnesses.

The court instructed the jury in part as follows: “That no opprobrious epithets or abusive words would justify an assault by one person upon another.” And, further, that: “The fact that the defendant was in a state of anger at the time would be no justification.” But the court did not instruct the jury that abusive language, used in the defendant’s own house in the presence of his family, constituted a trespass, and that the defendant had a legal right to expel the prosecuting witness from his premises as a trespasser, if necessary, by the use of any reasonable force short of endangering life or bodily harm.

No exceptions were taken to the instructions given and no instructions were requested by the defendant. However, in view of the fact that the question of punishment was submitted ‘to the jury, we think the court should have instructed the jury as to the defendant’s rights in the premises under this theory of the case. The testimony in the case shows that the defendant was an old man, having passed the allotted three score and ten, and had lived an exemplary life; that he was an old Confederate soldier, having served four years in the Confederate Army, in the Eighth Texas Regiment, Morgan’s Division, and was a man who doted upon his honor and was peculiarly sensitive in respect of the use by another of language reflecting on his honor and integrity. It is apparent that the assault was made in sudden anger and passion, but the provocation was not sufficient to justify the defendant’s assault with a dangerous or deadly weapon. However, our examination of the record in this case convinces us that the sentence pronounced against the defendant is too severe, and we do not think the vindication of public justice requires that this old man be imprisoned in the penitentiary. This court is not confined to the mere alternative of affirming or reversing a judgment of conviction. Under section 6003, Rev. Laws 1910, this court has the power in furtherance of justice to modify any judgment appealed from by reducing the sentence. For the reasons stated, we have concluded to modify the sentence to the extent of reducing it to confinement in the county jail of McCurtain county, for the period of 30 days, and, thus modified, the judgment will be affirmed.

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


text:
    L. JONES et al. v. STATE.
    No. A-1888.
    Opinion Filed January 17, 1914.
    (137 Pac. 740.)
    APPEAL — Verdict—Evidence. Where there is a direct contradiction between the testimony of the prosecuting witness and that of the defendant, it is for the jury to determine which is worthy of belief, and their determination ordinarily will be sustained.

      Appeal from County Court, Tulsa County; N. J. Gubser, Judge.

    E. Jones and another were convicted of violating the prohibition law, and appeal.
    Affirmed.

      George T. Brown and Luther James, for plaintiffs in error.

      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiffs in error were tried and convicted upon an information which charged that on the 22d day of December, 1911, Roy Mitchell and L. Jones did unlawfully sell one-half pint of whisky to one I. E. Harmon. In accordance with the verdict of the .jury on November 25, 1912, they were sentenced each to pay a fine of $50 and to be confined in the county jail for 30 da)'s.

The evidence on the part of the state shows that I. E. tlar-mon, on the date alleged in the information, went into the Ow! Drug .Store in the city of Tulsa, and went into the back part of the drug store behind some curtains. The defendant Roy Mitchell, a colored boy, was there, and Harmon asked him if he had any whisky. The-negro boy poured out a drink, w.nich Harmon drank. He then told the negro boy he wanted to purchase one-half pint, and the negro boy gave him one-half pint of whisky, telling him to pay at the front. Harmon went to the front of the store, and paid the defendant L. Jones 75 cents for the half pint. The negro boy, as Harmon went to the front, told Jones to- collect the money for the whisky, and Jones did so. Other evidence on behalf of the state was to the effect that L. Jones and Roy Mitchell, defendants, were at this drug store and were arrested there that day.

U. Jones, as a witness in his behalf, stated that he was a registered pharmacist, that he worked at the Owl Drug Store, but denied that he sold or received any money for whisky from the witness Harmon, and stated he did not know that any whisky was being sold in the drug store, and that he was not in the drug store at the time stated by Harmon. Abe Baker testified that L. Jones was not at the drug store at the time the witness Harmon claimed to' have bought the whisky there.

Complaint is made that the jury in said case was improperly impaneled, to the prejudice of the defendants, because of certain questions asked a juror on his voir dire by the court and his answers thereto, for which he was excused. The defendants did not object or except to the examination at the time, therefore there is nothing before this court for review. However, we will say that the complaint is without merit.

It is also contended that the evidence is insufficient to sustain the verdict. The jury had the witnesses before them, and could see their manner of testifying, and they no doubt, in determining the truth, took into consideration all the attending circumstances of the case. Where there is a direct contradiction between the testimony of the prosecuting witnesses and that of the defendant, it is for the jury to determine which is worthy of belief. There appears in the record no error prejudicial to the substantial rights of the defendants.

The judgment of conviction is therefore affirmed.

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


text:
    FRED ELLSWORTH v. STATE.
    No. A-1656.
    Opinion Filed January 27, 1914.
    (137 Pac. 1189.)
    1. INCEST — Sufficiency of Evidence. In a prosecution by a daughter against her father for incest, where it appears that she was over the age of consent when the act charged was committed, and her testimony is corroborated by proof of material facts and corroborating circumstances, connecting the defendant with the commission of the crime, the evidence is held sufficient to sustain the verdict and judgment, and that no reversible error was committed on the trial.
    2. INCEST- — Evidence—Prior Acts. In a prosecution for incest, evidence tending to establish acts of incest at times other than and prior to that relied on for the conviction is admissible as indicating continuousness of the illicit relation and as tending to corroborate the testimony of the prosecutrix as to the particular act relied on for conviction.

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

    Fred Ellsworth was convicted of incest, and appeals.
    Affirmed.

      Womack & Brown, Wilkinson & Morris, and Stuart, Cruce & Gilbert, for plaintiff in error.

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

This appeal is prosecuted from a conviction had in the district court of Stephens county upon an information charging the defendant, Fred Ellsworth, with the crime of incest alleged to have been' committed with his daughter Flora Ellsworth in said county on or about the 25th cla}'’ of July, 3 911. The verdict was guilty as charged, leaving his punishment to be assessed by the court. On the 18th day of November, 1911, the court pronounced judgment and sentenced the defendant to imprisonment in the penitentiary at McAlester for the term of ten years. To reverse the judgment, an appeal was perfected.

The only question worthy of notice which the record presents goes to the merits of the case. It is claimed by defendant’s counsel, in an elaborate argument, that the evidence does not warrant his conviction, in that there is no sufficient corroboration of the testimony of the prosecuting witness, who must be considered as an accomplice/

The prosecution gave in evidence the testimony of Flora Ellsworth as follows: That 'she was the daughter of defendant and was sixteen years old March 8, 1911. That her mother died when she was an infant, and that after her mother’s death she lived with her grandparents near Lexington, Okla., until she was seven years old. At that time her father, having married the second time, took her to live with him. That when she was twelve years old her father moved to the Wood Reserve in Stephens county. That when she was ten years of -age her father began to have sexual intercourse with her, and that their illicit relations were continuous until Friday, July 25, 1911, which was the last time. That on that day her stepmother had gone to Marlow, taking her half-sister with her; and the act occurred in her bedroom during the afternoon. She also testified that her father slept with her off and on since she had been living with him. That her stepmother was away the winter before three weeks or a month, and her father occupied the same bed with her during that time and had intercourse with her two or three times a week. That she did not tell people about it before because he said “that if I told it on him that he would kill me.” That he often cuffed and kicked her and whipped her with a strap. That he pulled her hair until large bunches came out, and made her stand while her stepmother whipped her. That he stopped her from going to school. That her stepmother usually went to town on Tuesday and .Friday of each week with the butter and eggs. On cross-examination she testified that her father would come and take her out of her bed to his pallet and have intercourse with her; that this occurred so often that she could not state the number of times; that she was positive the last act took place on Friday, July 25th; that her mother and stepsister had gone to town on that day, and Ed. McGehee, who had worked for her father about a year and a half, was in the field working; that McGehee had been her sweetheart for about six months before the defendant’s arrest; that she told Mrs. Duncan, and Mr. Duncan brought her to the county seat to make the complaint, and she did not return to her father’s.

George Townsend testified that he had worked for the defendant off and on for five years, the last time two years before; that he had often seen the defendant and his daughter Flora sleeping together; that the last time he had seen them sleeping together was about four years ago.

Ed McGehee testified in. substance: That he had been working as a farm hand for the defendant for about a year before the prosecution was commenced. That the Ellsworth house had two rooms and there was a kitchen and smokehouse detached, and that he slept in the smokehouse. That Mrs. Ells-worth would go to Marlow twice a week, on Tuesdays and Fridays, to sell butter and eggs, and that she generally took the baby girl with her and left the defendant and his daughter Flora at home. That Mrs. Ellsworth went away on a visit, and while she was away the defendant and his daughter Flora slept in the south bedroom. That he noticed mornings that only one bed was slept in, and that it would be “disarranged and wallered up.” That he had seen the defendant take his daughter Flora by the hair of the head and churn her head up against the wall. That the prosecutrix never kept company with young men, but witness had been courting her, but had never had sexual intercourse with her. That his suspicions were aroused by the fact that at one time when Mrs. Ellsworth was absent defendant sent him down in the pasture to see about an old sow that was going to find pigs, and sent the little girl along with him, while the defendant remained at the house with the prosecutrix. That another time when Mrs. Ellsworth was gone to town the little girl came out to where he was working. That during the summer he saw the defendant and the prosecutrix sleeping on a pallet in the front room.

Mrs. J. W. Turner testified, in substance, that she had lived for three years a near neighbor of the defendant; that in February, 1911, Mrs. Ellsworth went away and was gone about six weeks, and that during her absence witness was at the Ells-worth house nearly every day, sometimes early in the morning, and noticed that only one bed had been occupied; that the prose-cutrix never had any young men company.

Dr. C. E. Frost testified that he was a duly licensed 'physician and surgeon and had practiced medicine for 36 years; that he, with Dr. Adams present, made a personal examination of the prosecutrix; that he found that the hymen had been broken down and it was not of recent occurrence; “that her sexual organs resembled those of a married woman, that was in the habit of having sexual intercourse;” that the parts had assumed a flabby nature because of friction or excessive intercourse; that “the condition of her body was that of a married woman,” and whatever had been the disturbing cause had existed for some time necessarily, from the flabby condition of the vulva; that he made a subsequent examination some months after and found her general condition much improved.

Henry Crawford testified that he was a deputy sheriff and arrested the defendant in the town of Marlow some time in August, 1911; that the defendant asked him what he was arrested for; that he did not tell him; that he allowed him to go and get some one to take his team home; that he then went to the bank to get some money, and from there he went to a drug store.

W. M. Cates testified that he was sheriff; that he phoned from Duncan to Deputy Sheriff Crawford at Marlow to arrest the defendant; that shortly after the defendant called him up on the phone and wanted to know what he was arrested for, but that he refused to give him the information.

L. A. Seiver testified that he was a druggist and the defendant came into his store on the day he was arrested and asked for five or ten cents worth of strychnine, and he told him he did not have any. At the time Deputy Sheriff Crawford was standing out in front of the drug store.

Thereupon the state rested and the defendant moved the court to instruct the jury to return a verdict of not guilty on the ground “that there was a total failure of corroboration of the testimony of the prosecuting witness.” The court overruled the motion and allowed an exception.

On behalf of the defendant, three or four witnesses testified that the defendant was in the town of Marlow on the afternoon of Tuesday, the 25th day of July, 1911.

The next witness on the part of the defendant was his wife, Mrs. Sara Ellsworth, who testified that since their marriage she and the defendant had slept together, and that the prosecutrix never slept with him alone. Proper predicate was laid for introducing statements which the state contended had been made by Mrs. Ellsworth to Mrs. Turner, and Miss Mollie Parham.

George Watson testified that he worked for the defendant in Cleveland county, and at that time he saw prosecutrix sitting in the lap of a man named Erwin, and that Erwin asked him not to say anything about it.

A'Mr. Walker, of Pauls Valley, testified that he was at the home of the defendant in October, 1910, painting for him, and that he had seen Ed McGehee and Flora Ellsworth sitting on the bed, and that McGehee had his hands up under her clothes.

Will Brady testified that he was at the home of the defendant on the 28th day of July last, and saw the prosecutrix and a man he took to be Ed McGehee lying on the floor; that he inquired of the prosecutrix for her father, and she said that he had gone to Marlow.

Defendant, as a witness in his own behalf, denied ever having illicit relations with his daughter, and said at the time of his arrest he went into the drug store to' purchase strychnine at his wife’s request.

In rebuttal, Miss Mollie Parham testified: That she was 50 years old and lived with her sister, Mrs. Turner, across the section line from the defendant. That about two years ago Mrs. Ellsworth told her that the defendant had been having illicit relations with his daughter Flora Ellsworth, and that her happiness had been broken up because of that. That she said, “Flora is an immoral girl, and she comes between me and Fred;” and I said, “Flow can she be immoral; she never leaves home;” and she said, “This goes on right under my own roof, and you will see some day that this will come to light.” That'she after-wards repeated the story to her.

Mrs. J. W. Turner testified that Mrs. Ellsworth, speaking about her husband’s arrest, said to her: “You can just tell Miss Mollie that it is just like I told her. I have told her that often.”

On accomplice testimony the court instructed the jury as follows:

“You are instructed, gentlemen of the jury, that under the law of this state a person cannot be convicted upon the testimony of an accomplice unless they be corroborated by such other evidence in the case as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. And you are instructed in this case, gentlemen of the jury, that the prosecuting witness, Flora Ells-worth, being under the law an accomplice in the crime charged against this defendant, you cannot convict the defendant upon the testimony of the said witness unless you further find from the evidence that the testimony of such witness is corroborated by such other evidence in the case as tends to connect the defendant with the commission of the offense charged in the information. And it is for the jury to say, in the light of all the evidence in the case, as to the reasonableness or unreasonableness of the evidence of the prosecuting witness and as to whether it has been corroborated by the testimony of other credible witnesses or by facts and circumstances proven in the case.”

It is our opinion that the condition of the prosecutrix and the opinion of the physician who made the examination as to its probable cause corroborate the testimony of the prosecutrix, and there are other facts and circumstances brought out in the evidence calculated to substantiate and corroborate the testimony of the prosecutrix. For this reason the question of the innocence or guilt of the defendant was a question for the determination of the jury. They found the defendant, guilty. No other finding could well have been reached, and no good reason is shown why that finding should be disturbed.

The record does not disclose any reversible error. The judgment of conviction is therefore affirmed.

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