text:
    SID UNDERWOOD v. STATE.
    No. A-5579.
    Opinion Filed Dec. 18, 1926.
    (251 Pac. 507.)

      Sigler & Jackson, for plaintiff in error.
    George F. Short, Atty. Gen., and V. P. Crow, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case, filed in the district court of Carter county, March 26, 1924, charged that in said county, on or about the 22d day of January, 1924, the defendant, Sid Underwood, did ■buy and receive from one Eugene Durie one Ford roadster, knowing the same to have been stolen. On March 24, 1925, the trial was had, and the defendant was found “guilty of receiving stolen property as charged in the information,” and his punishment fixed at confinement in the county jail for six months, and a fine of $250.

From the judgment rendered in pursuance of the verdict, he appeals, and assigns as error that the verdict is not sustained by sufficient evidence; the refusal of the court to give certain requested instructions, and the giving of others excepted to; and alleged improper remarks of the county attorney.

It is disclosed by the evidence that a Ford roadster was stolen from in front of the Broadway Baptist Church in Ardmore, Sunday night, January 20, 1924. Jack Hayes, the owner, testified that he had used it three weeks; that the car was recovered three weeks later in Sapulpa; that its reasonable value was $425.

Eugene Durie testified that he bought this car from Bernie Rogers, paying him $25 for it; that after receiving the same, the motor numbers of the car were changed by “Candy” Renfro, and Renfro sold the car for him to defendant at Emmet Key’s house in Ardmore on the night of January 22, 1924; that defendant gave Renfro a diamond ring and $50 for the car; that the value of the ring was set at $100; that he was present when the car was delivered to defendant, and heard Candy Renfro tell appellant that it was a wet car.

Carl Holden, deputy sheriff, testified that he obtained information from Eugene Druie that the car was located in Sapulpa at the Frisco depot.

Dwight Bell, deputy sheriff, testified that he arrested defendant, and in a conversation with him defendant stated that one of the Key boys at his drug store said some boys had a car he could buy, and the next night he was out at Key’s house they brought the car there, and he bought it for $250, and some one else was present; that later he said there was a diamond ring in the deal, and he paid the balance in cash; that these boys were to deliver the car at Tulsa; that he went on the train to Davis; and there the next day met the boys with the car, and rode with them from Davis to Norman, or Purcell, and there left them; that he gave one of them $10 to take the car on to Tulsa and deliver it to the company defendant was working for.

For the defense Emmet Key testified that defendant was at the Key drug store, and that Candy Eenfro was there and had the car with him; that they discussed the trade, and defendant bought the car at the time; that defendant left Ardmore on the midnight train that evening; that witness’ wife is a niece of defendant, and defendant was stopping at witness’ house at the time; that Eugene Durie was present when defendant bought the car.

As a witness in his own behalf defendant testified that he was traveling for the Motor Tools Company; that he was in Ardmore, and told some boys that he wanted to buy a car because the company did not furnish one; that Candy Eenfro heard his statement, and told him that he would like to talk with him about a car; that later he came back to Ardmore, and saw Eenfro and the car which was stolen, and Eenfro told him it was for sale; that this occurred in front of Emmet Key’s drug store; that Eugene Durie and another boy were present, and he talked to them about buying the car, and they asked him $400 for it; that the next evening he met the same boys again at the Key drug store, and offered them $50 cash and a diamond ring that he had for the car, and agreed to give them $150 more when the car was delivered to him in Tulsa; that he gave the ring and the $50 to Eenfro; that, after he purchased the car, he left on the midnight train for Davis, and there the next morning he saw these boys with the car, and rode with them in the car from Davis to Pauls Valley, there he stopped, and the boys went on with the car; that he never did see the car again; that Eenfro said the car belonged to the other boys, and that he was getting $25 for selling it; that he had known Renfro some time, but did not know anything against him, but had heard that his reputation was bad.

On cross-examination he testified that the boy employed to take the car to Tulsa was called Joe Mar-land ; that, while with him on the road, the boy asked him for ten dollars, which he gave him.

Two witnesses testified that they knew defendant’s reputation as an honest, law-abiding citizen, and that reputation was good.

At the close of the evidence there was a motion for a directed verdict of acquittal which was overruled.

Counsel in their brief say:

“We take the position that the testimony shows that the witness Eugene Durie was an accomplice, and that there was no testimony which in any way corroborates him. The main issue in this case was whether or not the defendant knew that the car was stolen, and there was no testimony to corroborate Durie’s statement, and no facts and circumstances to indicate that it was true; therefore we say the court erred in overruling the motion for an instructed verdict.”

The court instructed the jury that the witness Durie was an accomplice of the defendant, and submitted the question of the sufficiency of the corroborating evidence to the jury under proper instructions, and we think there was ample evidence to justify the submission thereof. Whether there was any corroborating evidence was a question of law for the court, but the sufficiency thereof was a question of fact for the jury.

It is true that the evidence tending to corroborate the testimony of the witness Durie to the effect that defendant knew when he bought the car it was stolen property is circumstantial, but it may be said generally that matters of knowledge, intent, and mental attitude are not generally capable of proof by direct and positive evidence, but must be proven by facts and circumstances. Pringle v. State, 32 Okla. Cr. 166, 239 P. 948.

The rule repeatedly announced by this court is that it has no power to reverse a judgment of conviction upon the ground that the verdict is not supported by the evidence, unless there is no substantial evidence tending to show the guilt of the defendant, or the evidence fails so far to support the verdict that the necessary inference is that the jury must have acted from partiality, passion or prejudice.

The law prescribes no standard for the strength of the corroborating evidence, and there is a failure to corroborate only if there be no evidence legitimately having that effect. We think that the evidence fails to show the witness Durie to be an accomplice, and the instruction of the court that he was an accomplice was an error in favor of the defendant. Taken as a whole, the instructions were more favorable to the defendant than he had any right to expect.

As to the alleged improper remarks of counsel for the state, we deem it sufficient to say that a careful reading of the argument satisfies us that the remarks objected to were clearly within the bounds of legitimate argument.

That the verdict was favorable to the defendant in the punishment imposed clearly indicates that it was not the result of passion or prejudice.

No other reason for reversing the judgment being urged, and no substantial error appearing in the record, the judgment is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    JIM REECE v. STATE.
    No. A-5789.
    Opinion Filed Dec. 18, 1926.
    (251 Pac. 506.)
    E. E. Ammons, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of McIntosh county on a charge of arson in the second degree, and sentenced to serve a term of five years in the state penitentiary.

On the night of January 24, 1924, a residence house belonging to Sambo Monahawee was destroyed by fire. The house had been unoccupied for only two days. The fire was discovered about 2:30 to 3:00 a. m., and at daylight the owner and two officers made an investigation, and found human tracks going to near the burned building and leaving. These were tracked to the immediate vicinity of defendant’s residence, and similar tracks were found about the residence. Defendant was arrested, and the shoes worn by him had certain marked peculiarities corresponding to the tracks leading to and leaving the place of the burned building. These shoes were fitted in the tracks, and the testimony is they exactly corresponded. On the night of the fire the defendant was at a dance some three miles from the scene of the fire. He was in an intoxicated condition, .and left there about 2 a. m. He did not reach his home until the next morning. He testified that after leaving the dance he went to a place where whisky was being made, and stayed until morning. He had previously been convicted, and served a term for a felony. There was evidence of a state of ill will and motive on the part of defendant. The evidence was entirely circumstantial. There was no material conflict in the course of the trial other than defendant’s testimony. No exceptions were taken to the court’s charge. The only contention presented in the briefs is that the evidence is insufficient to sustain the verdict. Without going into the further details disclosed by the testimony, we believe there is sufficient evidence to sustain the verdict. No reason to disturb the judgment is apparent.

The case is affirmed.


author: BESSEY, P. J.

text:
    JOE A. ROBERTS v. STATE.
    No. A-5641.
    Opinion Filed Dec. 20, 1926.
    (251 Pac. 612.)

      Bond, Melton & Melton, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   BESSEY, P. J.

By information, the plaintiff in error, referred to here as the defendant, was charged with the murder of M. H. Holland, and was convicted of manslaughter in the first degree, with his punishment fixed by jury at confinement in the penitentiary for a term of five years.

The defendant and his son were farmers who operated adjoining farms on which was grown large quantities of broom corn. At the time of the homicide, the son was in ill health, and the defendant was overseeing the harvesting of the broom corn on his son’s farm.

On Friday, the day preceding the homicide, the deceased and his brother had been employed by the defendant to assist 20 or 25 other men there engaged in “tabling” and cutting the crop. These brothers were inexperienced in this kind of work and were not progressing as rapidly as others there at work, and some time during the day, the defendant remonstrated with them about the slow progress they were making. After they had worked a time on Saturday morning, the defendant again went to where the brothers were and again complained that they were not accomplishing as much as the others there at work. As to just what happened subsequently, the evidence is conflicting. The defendant claims that the brothers became hostile and insulting and ran him out of the field with their broom corn knives, that during the affray the defendant told them to quit work, and that he would pay them for the hours they had worked. He then proceeded to his home about three-quarters of a mile distant, and got his check book and an automatic shotgun and returned in an auto truck to where the brothers were in the highway, adjacent to where they had been working; that there the brothers again approached in a threatening manner, with their broom corn knives in their hands, and that the defendant pointed his shotgun at them and compelled them to throw their knives away; that, as the defendant was about to write a check, the brothers rushed forward to get possession of the shotgun; that the defendant seized the gun and struck the deceased on the head and knocked him down, and that the deceased arose and the defendant again knocked him down with his fist. Presently the two brothers got ahold of the muzzle of the gun and struggled to take it from the defendant, when it was accidentally discharged, inflicting a mortal wound. The shot entered the head of the deceased near the posterior portion of the base of the skull, severing the jugular vein and passing out through the jaw, some scattering shot hitting the other brother.

Some of the evidence on the part of the state and the evidence of some of the witnesses introduced by the defense indicates that the defendant was the aggressor, and that the two brothers did not drive the defendant from the field with their corn knives, and did not assault or renew an assault in the highway, when the defendant returned with the shotgun, and that the homicide was committed under circumstances indicating that it was either murder or manslaughter. There were about 35 witnesses who testified in this case, a number of whom were eyewitnesses to some portion of the incidents surrounding the homicide. These laborers were scattered in different portions of the field. Their views were somewhat obstructed by the standing and tabled broom corn and rank weeds that grew along the fence row of the highway.

The location of the wound and its character are more easily reconciled with the facts as related by witnesses for the state showing culpability, than as claimed by the defendant, to the effect that the shot was fired accidentally while the deceased was trying to wrest the Winchester gun from the defendant’s possession.

The issues of the different degrees of culpable homicide and of justifiable homicide by accident were all treated in the instructions to the jury.

The defendant says that the court erred in refusing to grant a continuance on his application on account of the absence of three witnesses. At the trial, two of the three were reached and procured by court process. The third witness, Arthur Jobe, had been subpoenaed by the state, but did not appear. The defendant claims that Jobe and a witness named Gray were nearer and better able to observe the movements of the parties in the fatal controversy than were the other laborers there in the field. It was apparent to the court that there were a large number of witnesses present who saw the difficulty or portions of it, and that the evidence of Jobe would be largely cumulative. In this connection, it was proper to take into consideration the fact that these broom com laborers were a transient, migratory class of laborers, and in case of a continuance, there might be others who could not be found, resulting in a series of continuances manifestly unfair to the state. True, the defendant is entitled to compulsory process to obtain witnesses, but this right must be exercised with diligence and cannot be unreasonably extended, especially where the details of the testimony sought are uncertain and of a speculative nature. Under the showing made, the court did not abuse his discretion in refusing a continuance. Harrison v. State, 29 Okla. Cr. 394, 234 P. 221; Green v. State, 29 Okla. Cr. 145, 232 P. 853; Kirk v. Ter., 10 Okla. 46, 60 P. 797.

The defendant challenged the correctness of several instructions. It is claimed this portion of instruction No. 3 is error:

“That if you find and believe from the evidence that any witness has wilfully testified falsely, the jury may disregard his entire testimony, whether corroborated or not.”

The jury is not told that they must disregard the testimony of any witness, nor that they must believe or disbelieve the corroborated evidence. As a matter of law, it might be better to tell the jury that they could, if they desired, consider only that part of the falsifying witnesses’ testimony that was corroborated and disregard the rest, but as a matter of the objection to this instruction on the ground that it invades the province of the jury, the defendant must be concluded by the case of Cole v. State, 13 Okla. Cr. 430, 195 P. 901. This instruction begins thus:

“You are instructed, gentlemen, that you are the sole judges of the credibility of the witnesses and the weight to be given to the testimony of each.”

Taken as a whole, this instruction is not as faulty as the one in Cole v. State, supra. It is probable that the jury did not interpret this instruction as necessarily impairing their right to consider the testimony of an impeached witness. Be that as it may, the defendant introduced more impeaching testimony than the state, so that the vice complained of, if it had such effect, may have inured to his benefit.

In instruction No. 6, the court said:

“Homicide is murder, gentlemen.
“First, when perpetrated without authority of law and with a premeditated design to effect the death of the person killed or of any other human being.
“Second, when perpetrated by any act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.
“Third, when perpetrated without design to effect death, by a person engaged in the commission of any felony.”

The deduction made, as first above quoted, was an amplification of the statutory definitions of murder given in instruction No. 8, particularly the phrase “designed to effect death.” There was some evidence warranting such an instruction, though found insufficient by the jury, as shown by their verdict of manslaughter. Moreover, a defective instruction on murder will usually not operate to the prejudice of accused where the jury, by their verdict, eliminate the issue of murder by finding him guilty of manslaughter. Lady v. State, 18 Okla. Cr. 59, 192 P. 699; Cases Annotated, 23 A. L. R. 1554.

The defendant claimed the homicide was accidental. The evidence of the defendant himself is that he first used the gun as a club or missile, knocking the defendant down; that, immediately following, he knocked him down with his fist. Then followed the struggle to obtain possession of the gun. There was some evidence that they were thus engaged in a mutual combat. Under such circumstances, in the absence of a request, it was not obligatory upon the court to submit an instruction on self-defense.

As to the rules applicable to the wanton or reckless use of firearms, without intent to commit serious injury, including the intentional discharge of firearms, see cases and annotations, 23 A. L. R. 1554. The deduction to be drawn from these cases and supported by reason is that a jury might find that the accused, based upon his conduct on that day alone, acted in a manner imminently dangerous to others, evincing a depraved mind. We do not understand that the mental depravity referred to in the statute must be established by a series of antecedent acts.

The defendant complains that the court failed to instruct the jury on certain conclusions that might be inferred, from the evidence. It is the duty of the court, without request, to instruct the jury upon all of the essential issues raised by the evidence, but, where no omission is pointed out, the trial judge need not submit an instruction on every question of law that might be involved or touching upon every remote deduction that might be drawn from the evidence. Often too many instructions tend to make the instructions, as a whole, confusing, instead of elucidating the pertinent issues involved. Hopkins v. State, 28 Okla. Cr. 405, 231 P. 97; Coker v. State, 26 Okla. Cr. 230, 223 P. 711; Newcomb v. State, 23 Okla. Cr. 172, 213 P. 900; Thompson v. State, 26 Okla. Cr. 121, 222 P. 568; Horn v. State, 31 Okla. Cr. 347, 238 P. 967.

The defendant claims that a new trial should have been granted on the showing made on newly discovered evidence. The alleged newly discovered evidence is contained in an affidavit, made by O. V. Farr in Texas and J. T. Farr in the same state, that one Calvin Mc.Elroy, who had been working in the field with the other hands at the time of the shooting, had told these affiants that there was a conspiracy between the said Calvin' McElroy, one Jess Morrissette, and Oscar Al-corn, and two unnamed others, all of whom had been present at the shooting, to “all swear alike so that Joe A. Roberts would be sent to the penitentiary.”

It seems that the alleged newly discovered evidence was merely a hearsay statement made by one of the large number of men in the field in a chance conversation on the street long after the crime. Manifestly, mere hearsay street rumors of this character do not constitute such newly discovered evidence as will make it obligatory upon the trial court to grant a new trial.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


author: EDWARDS, J.

text:
    O.O. SPRINKLE v. STATE.
    No. A-5634.
    Opinion Filed Dec. 23, 1926.
    (251 Pac. 614.)
    W. R. Withington, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of having illegal possession of intoxicating liquor and was sentenced to pay a fine of $100 and to serve six months in the county jail. Certain officers in Ardmore procured a search warrant and searched the residence of defendant and found a quantity of “choc beer,” some bottles, and caps. The affidavit upon which the search warrant was issued, omitting formal parts, is as follows:

“ * * * W. C. Keirsey, being duly sworn, says that O. O. Sprinkle, on the 6th day of June, A. D., 1924, in the county of Carter and State of Oklahoma, did then and there unlawfully have in his possession, with intent to sell or otherwise dispose of the same, in violation of law, certain intoxicating liquor, to wit, corn whisky, and the property of the said defendant, O. O. Sprinkle, and that he, the said W. C. Keirsey, suspects that said property is concealed in his residence and about his premises located at Hargrove street, Ardmore, Okla. W. C. Keirsey. * * * ”

Before entering upon the trial, the defendant moved to exclude the evidence obtained by the search warrant as having been issued upon an insufficient affidavit. The motion was overruled. This was error. The search warrant was illegal for two reasons:

First. It was issued upon a mere belief or suspicion, It was held in the case of Miller et al. v. State, 34 Okla. Cr. 103, 245 P. 68, that a search warrant issued upon an affidavit almost verbatim to that here involved was illegal.

It was illegal for the further reason that it is in direct violation of section 7013, Comp. Stat. 1921, which is:

“No warrant shall be issued to search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort.”

It will be observed that the affidavit above set out does not state that any part of the residence of defendant is used as a store, shop, hotel, or boarding house, or place for storage, or is a place of public resort. The courts are not at liberty to violate this plain requirement of the law.

The case is reversed and remanded, with instructions to dismiss.

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


text:
    In re OPINION OF THE JUDGES. In re GEORGE CALL.
    No. A-6462.
    Opinion Filed Dec. 31, 1926.
    (251 Pac. 757.)
   EDWARDS, J.

The.record submitted and to which is attached your request above mentioned discloses that the said George Call was charged with murder by information in the district court of Pittsburg county, and that said information was filed in said court on May 24, 1926.

Under the Constitution and laws of this state, any person convicted of a felony may appeal within six months from the time judgment is rendered. Section 2808, Comp. Stat. 1921. By the provisions of this section of the statute, the defendant, if he takes proper steps, may perfect an appeal to this court within six months from the date of sentence. It has been the uniform holding of this court that the .provision of section 2786 of the statute of this state contemplates an advisory opinion where an appeal has not been taken from the judgment and sentence of death. To render an advisory opinion, where an appeal has been taken or where the time given for appeal has not expired and appeal might be perfected, would be to prejudge a case upon an ex parte proceeding, which might later be brought before the court upon an appeal. We cannot assume that the defendant will not appeal until the time for such appeal shall have expired or the right to appeal shall have been expressly waived. In order that the defendant shall not be deprived of his right to appeal within six months, the execution of the sentence of death should be postponed to some date after May 16, 1927. If, in the meantime, the appeal is perfected and filed in this court, such appeal will automatically give the accused the right to a further suspension of the execution of sentence until appeal shall be determined upon its merits.

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


text:
    CHARLES HALEY v. STATE.
    No. A-5786.
    Opinion Filed Jan. 8, 1927.
    (252 Pac. 71.)

      Wright, Gill & Ramsdale, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of having intoxicating liquor, and was sentenced to pay a fine of $500 and to serve 6 months in the county jail.

The defendant, a married man, with his wife and family, resided in a building at Wright Station. On February 17, 1925, certain officers with a search warrant went to this residence, made a search, and found some 15 gallons of whisky in the upstairs in the residence and a pint bottle down stairs. Before the trial, a motion to suppress the evidence because the search was illegal was interposed and overruled. Objection was renewed during the trial. Section 7013, Comp. Stat. 1921, forbids the search of a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort, and these exceptions or some one of them must appear in the affidavit for the search warrant. Sprinkle v. State, 36 Okla. Cr. 36, 251 P. 614; Foster v. State, 27 Okla. Cr. 270, 226 P. 602; Williams v. State, 30 Okla. Cr. 39, 234 P. 781.

The affidavit upon which the search warrant was issued in this case does not directly and in the language of the statute allege any of the exceptions named, but it does allege, in substance, that the residence was a place of storage, by setting out and describing considerable property alleged to be stored at said residence. It would be better pleading to allege the exceptions named in the statute in the terms of the statute, but the allegation made is sufficient.

Complaint is further made that the punishment imposed, being for a first offense, is excessive. This, we think, is true. The judgment is modified to a fine of $200 and to imprisonment in the county jail for a term of 60 days, and, as modified, the judgment is affirmed.

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


author: DOYLE, J.

text:
    BILLY FRAME v. STATE.
    No. A-5868.
    Opinion Filed Jan. 3, 1927.
    (251 Pac. 756.)
    Sigler & Jackson, for plaintiff in error.
    George F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction for buying stolen property and sentence of imprisonment for the term of three years, rendered upon a plea of guilty, entered by appellant, Billy Frame, upon his arraignment on an information filed in the district court of Carter county, April 4, 1925, in substance charging that in said county February 15, 1924, Billy Frame did buy and receive from Candy Renfro and Raymond Garrett, for the consideration of $200, an automobile of the value of $200, owner unknown, knowing the same to have been stolen. Of the various errors assigned we deem it unnecessary to consider but the one, that the punishment imposed is excessive.

On the final submission of the case there was filed the following recommendation of the Attorney General:

“In this case the plaintiff in error pleaded guilty in the'lower court on the assurance of the county attorney that he would recommend to the court a jail sentence as full punishment for the offense.
“The county attorney after an investigation into the facts of the case, did recommend to the court the imposition of a six months’ jail sentence but the trial judge declined to follow the recommendation of the county attorney, and, upon the plea of guilty, imposed upon the defendant a sentence of three years’ imprisonment in the penitentiary.
“The defendant then filed a motion to set aside the judgment and sentence and grant defendant a new trial with permission to withdraw his plea of guilty and enter a plea of not guilty on the ground, among others, that defendant was led to believe that the trial judge would follow the recommendation of the county attorney in the imposition of the sentence. The trial judge denied the motion and from such action defendant has appealed to this court.
“After an examination of this record the Attorney General believes there is no reversible error presented by this appeal. The Attorney General has, however, made an extensive examination into the facts of the case and is convinced that the ends of justice will be fully conserved, were this court to exercise its discretion and modify this judgment to provide a six months’ jail sentence as recommended by the county attorney. It is the understanding of the Attorney _ General, also, that the trial judge now believes that a six months’ jail sentence will answer the demands of justice in this case.
“The defendant is a veteran of the World War, having been severely wounded therein, and must go through life a cripple. He has never been charged with the commission of crime before or since and is a descendant of one of the most respected families of Southern Oklahoma. Since the imposition of this sentence, defendant has married and is living an upright law-abiding life, and the Attorney General believes that this is an instance where the court should exercise that broad discretion conferred upon it by the Legislature and modify the sentence to provide imprisonment in the county jail for six months as originally recommended by the county attorney, and, having fully considered the premises, the Attorney General recommends such modification.”

Upon an examination of the record we have reached the conclusion that the punishment imposed is excessive, and that the recommendation of the Attorney General should be sustained.

It is both the spirit and intention of our laws that sentences shall be imposed in criminal cases for the protection of society and the reformation of the criminal, and punishment should be imposed in keeping with the spirit of the law.

The judgment and sentence herein will therefore be modified by reducing the sentence to imprisonment in the county jail for a period of six months, and as thus modified the judgment is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    ELMER WOMACK v. STATE.
    No. A-5797.
    Opinion Filed Oct. 30, 1926.
    Rehearing Denied Jan. 8, 1927.
    (253 Pac. 1027.)
    D. B. Madden and Walter Hubbell, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiff in error, Elmer Womack, in this opinion referred to as the defendant, was convicted of manslaughter in the first degree, with his punishment assessed by a jury at imprisonment in the state penitentiary for a period of 15 years.

The man slain, Milton McWaters, and the defendant, were farmers living in the same neighborhood, near the town of Temple. McWaters was the owner and in possession of a lease of Indian land located two or three miles away. The undisputed evidence shows that the defendant had gone upon the McWaters lease with a wagon and team, for the purpose of getting a load of wood. It appears that the defendant drove upon this lease over a two-wire fence that had been let down or weighted down for that purpose. The defendant claims that there was a gap in the fence where the wires were gone, and that he drove onto the lease through this gap. While the defendant was there cutting wood from a fallen tree top, McWaters came upon him, who, by the use of angry and possibly insulting language, ordered the defendant to leave the premises. At this time McWaters was dressed in his shirt sleeves with overalls or jumpers, in one of the pockets of which were two pieces of plug tobacco which caused the pocket to have a bulging out appearance, such as might be made by a small weapon. McWaters, however, was unarmed.

While this angry argument was in progress, McWaters advanced toward the defendant, as the defendant claims, in a threatening manner. The defendant dropped his double-blade ax and went first to his team and then to the wagon, where he procured a pistol with which he shot McWaters, making an abdominal wound. McWaters then begged for mercy and the defendant offered to take him to a physician. McWaters was put upon the wagon, which proceeded some distance towards a neighbor’s house, when the jolting of the wagon was so painful that McWaters, on his request, was permitted to alight and the defendant proceeded on to the neighbor’s house, where physicians were called and the sheriff notified.

The defendant claims he shot the deceased in self-defense, but the facts, as related by the defendant himself, indicate that his apprehensions of danger or of receiving serious bodily harm at the hands of the deceased at the time he fired the fatal shot were unreasonable. The defendant admits that, when he was first accosted by the deceased, he had in his hands a two-blade chopping ax; as the controversy became more accute, he laid the ax aside and procured his pistol, with which he shot deceased. His explanation of casually having the pistol there, wrapped in some blankets, was not convincing, but the incidents connected with the homicide, as related by the defendant, sufficiently raised the issue of self-defense, which was submitted to the jury by appropriate instructions.

The defendant complains that the court erred in refusing to grant a continuance. The motion for a continuance recited that, on account of the absence of Mrs. Wolsey, they could not safely proceed to trial. The court, in overruling the motion for a continuance, said:

“This matter comes on now to be heard on motion of the defendant for a continuance, supported by affidavit of the defendant and the defendant’s counsel, Mr. Hubbell, and on consideration of the same, the court finds that on the 7th day of February, 1925, an order was made setting this case down for trial on the 4th day of March, 1925, and the court further finds that the defendant did not make an effort to secure the attendance of this witness until the 27th of February, 1925; did not cause praecipe to be filed nor subpoena to issue, and on the same date it was returned showing the witness not to be found in the county.
“There is no further showing of diligence excepting the county attorney looking towards what the witness might testify to, and might be admitted. There is a dispute between the attorney for the state and the attorneys for the defendant as to just the nature of that conversation; the court is of the opinion that, after reading the .affidavit for continuance, it doesn’t show diligence, as a matter of law, and the court is of the opinion that the testimony sought to be proved by this witness is not of materiality as to justify a continuance at this time; the court further finds it is not shown by that affidavit that this witness can ever be found or the testimony produced by the defendant; and the court is of the opinion that the affidavit for continuance should be overruled, and it is overruled.”

We hold that, under the circumstances shown, the court did not abuse his discretion in overruling the motion. Musgraves v. State, 3 Okla. Cr. 421, 106 P. 544; Gentry v. State, 11 Okla. Cr. 355, 146 P. 719; Petty v. State, 11 Okla. Or. 438, 147 P. 782.

The testimony shows that immediately after the deceased got off the defendant’s wagon, ,a neighbor, Earl Parks, and another came to where he was, and the deceased, referring to the defendant, said:

“He has murdered me, boys. Take me to Walters.”

This statement was admitted in evidence upon the theory that it was .a part of the res geste. This statement was probably not a part of the res geste, but the error, if error it was, was harmless, for the reason that the defendant was convicted of manslaughter only, and the statement that “He has murdered me,” made by the deceased, must have been considered by the jury as equivalent to a declaration that the defendant had shot him. Otherwise, the jury would have convicted him of murder and not manslaughter. Moreover, the error, if any, was waived by the defendant, who introduced a witness who testified to the same effect. The defendant admitted the killing and the jury gave the defendant the benefit of the doübt as to whether it was murder or manslaughter, rendering the admission of this declaration harmless. Rogers v. State, 9 Okla. Cr. 277, 131 P. 941; Fowler v. State, 8 Okla. Cr. 130, 126 P. 831; Pate v. State, 15 Okla. Cr. 90, 175 P. 122; Snow v. State, 91 Tex. Cr. R. 1, 237 S. W. 563, 20 A. L. R. 1180.

The court refused to permit the defendant to show that, for a period of years, various and sundry neighbors were in the habit of going upon this lease to cut and haul away firewood; that, during the greater part of this period, this leaseholder estate was owned and in possession of another. This offer was properly refused. A trespasser cannot justify upon the grounds that many others committed .a like trespass, or that the series of trespasses justifies a continuance of such habit. The testimony shows that the deceased, the lessor, had repaired the fences inclosing the lease, and that these trespassers would break down the fences to make an entrance thereon; that some of them passed through the gates and left the gates open; and that besides cutting down timber, the estate was sometimes otherwise damaged. This, in connection with the testimony that the defendant made an entrance over and through a wire fence that had been recently repaired, that he went there armed ostensibly for the purpose of resisting eviction, or for his own protection, indicates that he knew he was a trespasser.

The defendant’s right of self-defense was liberally covered by the admission of testimony and the instructions of the court. Where the owner of premises discovers a trespasser secretly cutting wood, prepared to transport it from the premises, and. the owner by the use of insulting epithets orders the trespasser away, and, at the same time, while unarmed, advances toward the trespasser in a menacing manner, the trespasser’s right of self-defense does not arise until he has availed himself of every safe means of retreat. But, even a trespasser, under such circumstances, where means of retreat are impracticable, has a right within reasonable bounds to repel an apparent dangerous attack in his necessary self-defense. Turley v. State, 74 Neb. 471, 104 N. W. 934; Lawson Cr. Defs. to Crime, vol. 6, 188.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    IKE LUCE v. STATE.
    No. A-5836.
    Opinion Filed Jan. 8, 1927.
    (252 Pac. 452.)

      S. H. Singleton and Bond & Bond, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Stephens county upon a charge of robbery, and sentenced to serve a term of ten years in the state penitentiary.

The information was filed , on March 28, 1925, and alleges the commission of the crime June 3, 1921. The record discloses that for three years or longer defendant was a fugitive. The facts appear about as follows: Everett Jackson, in the nighttime, while on his way from the town of Marlow to his home about eleven miles in the country, driving a Ford roadster, slowed down to cross a culvert, two persons stepped on the running board of his car, forced him to drive upon a side road, and there, by putting him in fear, took from him about $120 in money. That morning the defendant had ridden a part of the way with Jackson, who had informed him he intended to procure money with which to pay for chopping cotton. After the robbery, Jackson immediately returned to Marlow and reported. Certain officers that night and the following morning made a search, and testified that from the scene of the robbery they found tracks of two men leading to defendant’s house. Defendant was not found, though a search was made for him. He was not apprehended for some three years. Defendant did not take the stand, but offered testimony tending to prove an alibi, and also contradicting the evidence of Jackson as to the source from which he procured the money taken from him.

The contention is first made that the evidence, so sharply contradicted, is insufficient'to sustain the verdict. But, considering that the trial did not take place until some four years after the occurrence, the jury must have considered that the witness Jackson was in error as to the manner or time of procuring the money, but they must have believed his testimony that the money was taken from him by defendant. All the facts and circumstances proven in the case, defendant’s flight, and his failure to take the stand, are circumstances strongly indicative of guilt, and all together are sufficient to sustain the verdict.

Complaint is next made that the court erred in failing to give a short continuance to enable defendant to procure rebuttal testimony. The evidence was that of an employee of a bank at Marlow. No continuance was necessary to have procured this witness, for, if subpoena had been issued upon a disclosure by the testimony of Jackson of the state’s contention, the witness could have been present when desired. The fact sought to be shown by his testimony was covered by the evidence of other witnesses, and the testimony would have been cumulative.

It is also urged that the court committed reversible error in instruction No. 9, which is:

“You are instructed, gentlemen, that the failure of the defendant to take the stand in this case shall not create any presumption against him.”

No exception was taken to this instruction, nor request made for more specific instruction. Nor was the giving of this instruction assigned as error in the motion for a new trial. In McLaughlin v. State, 14 Okla. Cr. 192, 169 P. 657, an instruction substantially the same as this was held to be reversible error. In the case of Russell v. State, 17 Okla. Cr. 164, 194 P. 242, .this court distinguished and modified the McLaughlin Case, and held that the giving. of such an instruction was not fundamental error, and affirmed the conviction, saying:

“Even should the instruction be considered as a mention of the fact that the defendant did not take the witness stand in his own behalf, its giving would not be fundamental error unless commented upon by counsel, in which event the defendant would be entitled to a new trial. There is no contention made that counsel in any manner commented upon this instruction or upon the failure of the defendant to testify in this case. We reach the conclusion, therefore, that although the giving of said instruction be considered erroneous, no proper objection having been made or exception taken thereto in the manner required by law, and, the error complained of not being fundamental in character, it is without prejudice to the substantial rights of the defendant in this case.”

See, also, Ford v. State, 5 Okla. Cr. 240, 114 P. 273.

Upon the whole record, there appears no reason for a reversal.

The case is affirmed.

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


text:
    EARL BECK v. STATE.
    No. A-5784.
    Opinion Filed Jan. 8, 1927.
    (252 Pac. 74.)

      Margaret McVean, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   BESSEY, P. J.

Earl Beck was jointly charged, with Eva Goldberg and Mattie Utt, with maintaining a nuisance, by keeping ai public place where intoxicating liquor was stored for sale and distribution, contrary to law.

The transcript of the evidence before us shows that on the state highway leading north from Oklahoma City, “not far beyond the shadow of the dome of the state capítol” (sic), under which this court deliberates, there was a wayside resort, or inn, known as the Mattie Utt Roadhouse, where automobile parties repaired for liquid and other refreshments, and where lunches might be procured with or without cover charges. The beverages there served consisted of carbonated drinks, home brew, and corn whisky.

Aliunde the record, this court has information from others who were there entertained that it was the custom, after the second round of drinks, to start the victrola, and that the female habitués of the place, if requested, would assist in entertaining the guests— conventionally or not, as might be desired. The record here indicates that, if any of the patrons in the course of the entertainment, passed into a state of coma, the management saw that they were tenderly put to bed in an upper chamber, and there retained until their thirst was thoroughly slaked, or their money exhausted.

On the night in question, this resort was in active charge of Eva Goldberg and Mattie Utt, at a time when a number of young men and women, sons and daughters of well-to-do families of this city, were there assembled, when the officers raided the place and found the accused in bed in an upper chamber, clad in abbreviated night apparel, in a semiconscious condition. When the accused sought to make his escape, he was arrested and later charged jointly with these young ladies (?) with maintaining a liquor nuisance.

In the trial court he was found guilty as charged, with his punishment fixed at confinement in jail for a period of six months and to pay a fine of $500. The evidence as against the defendant was insufficient to support a charge of keeping and maintaining a nuisance. There was no evidence that the accused owned or operated the place, or had any pecuniary or other interest there. The evidence merely shows that he was first a guest and later a patient. The officers had a right to abate the nuisance and arrest those who were there in actual charge of it, but the mere fact that this misguided young man was found loitering there did not make him an accessory with those who were actually conducting the resort.

The conviction is set aside, with instructions to dismiss the action.

DOYLE, J., and EDWARDS, J., concur.


text:
    DICK SANDS v. STATE.
    No. A-5784.
    Opinion Filed Jan. 8, 1927.
    (252 Pac. 72.)
    Wright, Gill & Ramsdale, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of transporting whisky and was sentenced to pay a fine of $500 and to be confined in the county jail for a term of six months. The evidence is brief, and is in substance that certain officers were in a building on West Fifth street, Oklahoma City, searching for narcotics. They saw a car drive up in front of the building, and the defendant got out of the car and came into the building, and as the officers went out they passed him. The wife of the defendant, jointly charged with him, was sitting at the wheel, and as the officers came out to the car they smelled whisky, and one of them looked through the isinglass of the curtain between the front and rear seats and saw whisky which was contained in two glass jugs, a five-gallon and a one-gallon glass one.

They thereupon seized the whisky and arrested the defendant and his wife. Before the trial had begun, defendant filed a motion to suppress the evidence as having been obtained by an unlawful search, which was overruled. It has been held that an officer may be apprised of the commission of a misdemeanor by the sense of smell or hearing, as well as by the sense of sight. Miles v. State, 31 Okla. Cr. 4, 236 P. 907; Sprinkle v. State, 34 Okla. Cr. 161, 245 P. 901; Collins v. State, 31 Okla. 187, 237 P. 865. See, also, Stansell et al. v. State, 30 Okla. Cr. 265, 235 P. 937.

To hold that the looking through the isinglass of the car by the officer after having his attention called to it by the odor of whisky is too narrow and technical a construction of the statute and constitutional provision forbidding unlawful searches. It is not a search for an officer to merely look into an automobile. The contention upon this point cannot be sustained.

It is also contended that there is no evidence that the whisky was transported from any place unknown to the place where it was found, in that the testimony did not disclose how far the officers saw the automobile move before it stopped. Applying the doctrine of common sense, it is self-evident that the car came from some point to the street in front of the house mentioned in evidence. It is described in the information as being some place unknown, and this is sufficiently proven by the circumstances. Shirley v. State, 31 Okla. Cr. 174, 237 P. 627; Porter v. State, 35 Okla. Cr. 261, 250 P. 437; Henthorne v. State, 35 Okla. Cr. 197, 249 P. 429.

The defendant did not take the stand. Na reason for reversal is apparent.

The case is affirmed.

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


text:
    E. T. WHITE v. STATE.
    No. A-4922.
    Opinion Filed Jan. 10, 1927.
    (252 Pac. 455.)

      Ben F. Williams and Chas. H. Garnett, for plaintiff in error.
    J. T. McIntosh, Atty. for State Banking Department, and. Geo. F. Short, Atty. Gen., for the State.
   BESSEY, P. J.

The indictment charges E. T. White and I. E. Pacey jointly with the offense of receiving a deposit in the Bank of Commerce, an insolvent bank at Sulphur, Okla., knowing at the time that it was insolvent. A severance was ordered and plaintiff in error, E. T. White, here designated the defendant, was put upon trial, and by a verdict of a jury he was found guilty as charged. The court, in rendering judgment on the verdict, fixed his punishment at confinement in the penitentiary for a period of five years. From this judgment he appeals.

On February 23, 1922, defendant White, there present in charge of the bank, caused the bank to close its doors to the public and transferred its affairs into the custody of the bank commissioner, who, after an exhaustive examination of the cash, books, notes, accounts, and records of the bank, found that its assets at the time of the closing were exceeded by its liabilities by more than $100,000. The particular deposit here involved was received on the 21st day of February, 1922, two days before its affairs were turned over to the bank commissioner. At this time and some years prior thereto, Charles A. Bryan was the acting vice president and cashier of. the bank. Defendant White was a cashier and director and for a time had been its vice president. Among others actively engaged in its routine management was I. E. Pacey, president, director, and teller, all of whom, on occasions, acted in other capacities. Charles A. Bryan, now deceased, who committed suicide in his home at Sulphur, when he learned that defendant White had passed the affairs of the bank over to the bank commissioner, was primarily responsible for most of the irregularities connected with the bank and its management. These irregularities consisted chiefly of forged notes, false records of deposits, false book entries, corrupt manipulations of cash items, bonds, and other assets of the bank. In a number of these transactions defendant White culpably participated in these irregularities, as he claims, at the request and under the direction of the acting Vice President Bryan. The fact that defendant White participated, or was implicated in falsifying the records of the bank, and other irregular manipulations of its affairs, at the direction of the managing officer of the bank, constitutes no legal justification. There can be no agency in the commission of a crime. Under our statute it is provided that one who knowingly aids, abets, or assists another to commit an offense is guilty as a principal. It may be that the defendant White may not have known the full extent of the frauds and irregularities disclosed by the evidence, but the fact that defendant White was a banker with many years experience in banking affairs, supplemented by the admissions made by him in his own testimony, indicates that he knew that this bank was insolvent covering a period of several months before it closed. It is significant that after the bank was closed and the bank examiner arrived, defendant White phoned to Bryan at his residence, requesting him to come to the bank. After a period of a half hour he phoned again and received an evasive reply from some member of the family, and at once suspected that Vice President Bryan had committed suicide or was about to do so, and that defendant White immediately rushed to the residence of Brj^an, where he found his suspicions confirmed. The , only fair deduction to be drawn from this incident is that defendant White knew that Bryan was afraid to. face the disclosures of corrupt manipulations of funds and assets of the bank, which would necessarily follow an examination of its books, records, and affairs, and that the defendant himself had knowledge of many of these corrupt manipulations, and knew that the bank was, and for a long time had. been, hopelessly insolvent.

This prosecution is based on section 4128, Compiled St. 1921, as follows:

“No bank shall accept or receive on deposit, with or without interest, any money, bank bills or notes, or Unite.d States Treasury notes, gold or silver certificates, or currency, or other notes, bills, checks or drafts, when such bank is insolvent; and any officer, director, cashier, manager, member, party or managing party of any bank who shall knowingly violate the provisions of this section, or be accessory to or permit or connive at the receiving or accepting of any such deposit, shall be guilty of .a felony, and upon conviction thereof shall be punished by a fine not exceeding five thousand dollars, or by imprisonment in the penitentiary not exceeding five years, or by both such fine and imprisonment.”

According to the provisions of this. statute, knowledge of the insolvency of the bank is an essential element of the offense. The evidence indicates that defendant White, with others, acted as teller; that he and others had charge of the cash, made remittances, book entries, received deposits, had access to the notes and. accounts, and that he was more or less familiar with the books and records of the bank and its assets and liabilities. Many of the books' entries and other records appear in the defendant’s own handwriting. The state, for the purpose of showing that the defendant had • knowledge of the bank's affairs and that he knew it was insolvent, introduced .48 exhibits, consisting of ledger sheets, remittance sheets, forged notes, false deposit slips, journal entries, and other records, including an exhaustive official report of the bank examiner. The particular deposit here in issue is shown by Exhibit No. 41.

“EW. Deposited with the Bank of Commerce, Sulphur, Oklahoma, by Thomas Ferries,' Feb. 21.
“Please list each check separately.
Dollars Cents
Currency_ 60 00
Silver_’_
Gold_
Checks as follows: Pacey 13.
Total $-.
“See that all checks and drafts are indorsed.”

This exhibit and other testimony shows that this ■deposit was received by the co-defendant, Pacey, but the records also show that on this day, and days prior thereto, both Pacey and the defendant systematically worked together in receiving deposits from various depositors, indicating that the act of one was the act of both.

It is claimed in the first and second 'assignments of error that the description of the kind of money in the indictment is insufficiently stated. The statute on this feature is as follows:

“No bank shall accept or receive on deposit, with or without interest, any money, bank bills or notes, or United States Treasury notes, gold or silver certificates, or currency or other notes, bills, checks or drafts. # *

The indictment charges that the deposit consisted of “$60 lawful money of the United States.” This averment was sufficient to apprise the accused, of the nature of the accusation. It was the manifest purpose of the statute to cover money or its equivalent in commercial paper. Section 2943, Compiled St. 1921, provided that:

"Neither a departure from the form or mode prescribed in this chapter in respect to any pleadings or proceedings, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant or tended to his prejudice, in respect to a substantial right.”

It is contended further that the allegation that the bank was insolvent was a conclusion, and that facts should have been stated showing in what manner the actual cash market value of its assets were insufficient to pay its liabilities, or how, or in what manner it was unable to meet the demands of its creditors in the usual and customary manner. In this connection it has been held that a mere naked averment of insolvency is sufficient as a statement of fact and not a conclusion. Parrish v. Commonwealth, 136 Ky. 77, 123 S. W. 340; State v. Beach, 147 Ind. 74, 43 N. E. 949, 46 N. E. 145, 36 L. R. A. 179; Meadowcroft v. People, 163 Ill. 56, 45 N. E. 991, 35 L. R. A. 176, 54 Am. St. Rep 447; 7 C. J. 582; 3 R. C. L. 499.

The exhibit showing the particular deposit here involved, shows that the deposit was “currency." It has been held that, where the indictment charges the acceptance of a deposit of “money,” and the proof shows the deposit of a check, there was no variance. State v. Salmon, 216 Mo. 466, 115 S. W. 1106; Wilkin v. State, 121 Ark. 219, 180 S. W. 512; Ellis v. State, 138 Wis. 513, 119 N. W. 1110, 20 L.R. A. (N. S.) 444, 131 Am. St. Rep. 1022.

One of the essential elements of this offense was guilty knowledge—knowledge that the bank was insolvent at the time the deposit was made. To show that the accused knew it was insolvent, the state had. a right to inquire into all transactions by the accused and his associates, acting in concert with him, which in any manner impaired the assets of the bank or contributed to its insolvency. The fact that some of these transactions and manipulations disclosed that other crimes had been committed makes no difference. State v. Welty, 65 Wash. 244, 118 P. 9; Appelget v. State, 33 Okla. Cr. 125, 243 P. 251; Underhill on Criminal Evidence, par. 90; State v. Hatch, 63 Wash. 617, 116 P. 286; 8 R. C. L. p. 199 §§ 195, 196, 197, and 200, “Criminal Law.”

Objections were made to the introduction in evidence of the official report of John Knox, bank examiner. This was a detailed report purporting to show facts, figures, and tabulations, including comments and conclusions of the financial condition of the bank, gleaned from an examination of the books, records, and correspondence, supplemented by interviews with interested persons, and affidavits explaining particular transactions. At the conclusion of some of the separate tabulations, the bank examiner stated his conclusions and deductions based upon the transaction shown. The defendant earnestly contends that, if the facts, figures, and record history of the transaction was admissible, the bank examiner’s conclusions and surmises of corrupt practices was incompetent, invading the functions of the jury, and that all such portions of the bank examiner’s report should have been excluded. Whether this claim is meritorious or not, the record shows that the major part of this audit of facts, figures, and tabulations appears in evidence in other forms. The evidence, independent of this report, indicates that the liabilities of the bank then, and for a long time prior thereto, exceeded its assets, and that the bank was unable to meet its obligations in the ordinary course of business, so that the features of the report to which objections were made are of minor importance. Non-expert jurors of average intelligence, or even extraordinary intelligence, in the consideration of great masses of figures and tabulations involving the intricacies of bank bookkeeping, cannot be expected to arrive at correct rational conclusions without the aid of expert accountants. In the case of State v. Hightower, 187 N. C. 300, 121 S. E. 616, the court said:

“In a prosecution of a bank president for the receipt of deposits after knowledge of insolvency of the bank, expert testimony by the state bank examiner and an accountant to the effect that in their opinion the bank was insolvent on the day alleged in the indictment held not inadmissible as an opinion upon one of the essential facts necessary to the offense, nor was it necessary that as a prerequisite to the expression of such opinions the. witnesses be required to state the facts upon which they based their conclusions, though such course would have been the better practice.”

In this case the surmises and deductions were for the most part based upon the exhibits, figures, and tabulations preceding the deductions. If the deductions made were not warranted by the explanatory facts shown, the defendant could have so shown by cross-examination of the bank examiner or by independent evidence. Speculative surmises and strained deductions should, of course, be excluded. In the case of Hays v. State, 22 Okla. Cr. 199, 210 P. 729, this court held:

“Under the provisions of section 5115, Rev. Laws 1910, the official reports and records of the state examiner and inspector, in so far as they pertain to the issues involved, may be introduced as primary evidence, subject to explanation or impeachment. Mere conclusions of such officer, not based on his official record, are inadmissible.”

To the same effect, see State v. Salmon, 216 Mo. 466, 115 S. W. 1106; Appelget et al. v. State, 33 Okla. Cr. 125, 243 P. 251. Contra, based on statutory provisions, State v. Yegen, 74 Mont. 126, 238 P. 603.

The defendant claims that, since the deposit in question was received by I. E. Pacey, the defendant would not be criminally liable. In Appelget v. State, supra, it was held:

“Where the managing officers of a bank, with knowledge that it is insolvent, permit the bank to continue to receive deposits by its employees, they are guilty of accepting and receiving deposits within the meaning of the law, although they do not personally receive the deposits.”

This rule is based in part upon the language of the statute, which includes:

“Any officer, director, cashier, manager, member, party or managing party of any bank.”

This defendant was often in supreme authority at the bank in the absence of others. He was at the time acting as director and cashier, and finally on his own initiative he turned its affairs over to the bank commissioner. He was a person exercising general authority there, by and with the consent of the others, and should therefore be held accountable criminally for any abuse of that authority. Ex parte Smith, 33 Nev. 466, 111 P. 930; 3 R. C. L. Subject, “Banks” par. 124; State v. Cramer, 20 Idaho, 639, 119 P. 30.

Complaint is made that the court erred in a number of his instructions to the jury, and in his failure to give certain requested instructions. Most of the points of law involved in these exceptions have been treated elsewhere in this opinion, requiring no further analysis. Instruction No. 7 is as follows:

“You are further instructed that a bank shall be deemed to be insolvent, first, when the actual cash market value of its assets is insufficient to pay its liabilities; second, when it is unable to meet the demands of its creditors in the usual and customary manner; third, when it fails to make good its reserve as required by law. It is not necessary that the bank shall have on hands sufficient cash to pay all of its depositors, or any considerable number of them on the same day, or in case of a run on the bank or some extraordinary demand beyond the usual and customary manner. It is only necessary for it to have on hand cash, or available assets sufficient to meet the demands that are usually made on it from day to day in the ordinary course of business. In determining the value of the assets, you should take into consideration the actual cash market value of the assets on the 21st day of February, 1922. If, therefore, you find from the evidence beyond a reasonable doubt that the actual cash market value of its assets was not sufficient to pay its liabilities on the 21st day of February, 1922, or if you find from the evidence beyond a reasonable doubt that the Bank of Commerce Was not able to meet the demands of its creditors in the usual and customary manner, or if you find from the evidence beyond a reasonable doubt that the Bank of Commerce failed to make good its reserve as required by law, then in either event, if you so find, you are instructed that the Bank of Commerce was an insolvent banking corporation, and you should so find. If, on the other hand, you fail to find the Bank of Commerce was an insolvent banking corporation as defined in these instructions, or if you have a reasonable doubt of the insolvency of the Bank of Commerce on February 21, 1922, you should give the defendant benefit of such doubt and acquit him.”

With the exception to the part relating to the bank reserve required by law, this instruction sufficiently defines insolvency in accordance with the rules laid down in the Appelget Case, supra, where the subject was carefully considered, and we know of no reason for departing from the rule there announced. As was held in the Appelget Case, the portion of the instructions relating to the cash reserve as required by law has no application in a criminal prosecution, and the incorporation of this feature in this instruction was error; but, since no eifort was made in the introduction of testimony to predicate insolvency upon a failure to maintain the cash reserve, the error is harmless. The court discreetly advised the jury that it was not essential to establish insolvency to show that the bank should have on hand sufficient cash to pay all of its depositors, or any considerable number of them, on the same day, or in case of a run on the bank or some extraordinary demand, and that it was only necessary for it to have on hand cash or valuable assets sufficient to meet the demands that are usually made on it from day to day in the ordinary course of business.

Without attempting to analyze the instructions in detail, it is sufficient to say that the instructions as a Whole, with the exception of those portions relating to its cash reserve, substantially stated the law as applied to the evidence, and the allusions to the cash reserve are immaterial, because the insolvency of the bank was otherwise established. The evidence discloses that the bank was insolvent under any definition of insolvency applicable in criminal cases. That the bank might be insolvent because of its failure to maintain its legal cash reserve was an issue not properly involved in a criminal prosecution, and since there was no evidence supporting such issue, the allusions to the legal cash reserve in the instructions was meaningless. The evidence and the instructions relating to the condition of the bank and the managing of its affairs by its officers and agents, covering a period of months, when the defendant was actively engaged in conducting its affairs, was justified for the purpose of showing that he was conversant with the financial condition of the bank, and knew, or should have known, that at the time the deposit was received the bank was insolvent.

The court does not hold that there were no errors committed at the trial. In cases like this, where a large number of witnesses are examined and a large number of exhibits are introduced in evidence involving intricate banking affairs, it would be remarkable if some errors did not appear. But, as has often been held by this court, a cause will not be reversed for errors of minor importance, which do not substantially affect the rights of the defendant. If the rule were otherwise, complicated cases of this character would be shuffled back and forth between the trial and the appellate courts indefinitely.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


author: DOYLE, P. J.

text:
    WALLACE BORDEN v. STATE.
    No. A-5677.
    Opinion Filed Jan. 15, 1927.
    (252 Pac. 446.)
    McCollum & McCollum, for plaintiff in error.
    George F. Short, Atty. Gen., and Smith C. Mat-son, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Wallace Borden, was tried in the district court of Pawnee county upon the charge of having committed the detestable and abominable crime against nature, committed on the person of a boy 13 years of age by penetration per os, and the following verdict returned:

“We, the jury, do upon our oaths find the defendant, Wallace Borden, guilty of sodomy as charged in the information and leave his punishment to be assessed by the court.”

Motion for new trial was duly filed and overruled. On February 23, 1925, the court sentenced the'defendant to imprisonment in the reformatory at Granite for the term of two years.

The errors assigned present the questions whether the information charges a public offense, whether the court erred in admitting incompetent testimony, and whether the evidence is sufficient to sustain the verdict of the jury.

The questions wall be disposed of in the order stated:

Upon arraignment the defendant interposed a demurrer to the information on the grounds that it does not state facts sufficient to constitute the offense attempted to be charged, and that the same is not direct and certain as to the offense attempted to be charged, and that it is uncertain and insufficient, in not alleging the particular circumstances of the offense. The demurrer was overruled.

It is alleged in the information that in Pawnee county, October 29, 1924, the defendant did then and there willfully, unlawfully, and feloniously make an assault upon one Fred Freeman, a male person 13 years of age, and did unlawfully, intentionally, forcibly, and against the order of nature have a venereal affair with the said Fred Freeman, and did commit the abominable and detestable crime against nature.

It is urged that the information is not direct and certain as to the offense charged, or the particular circumstances of the offense charged as required by the statute (section 2556, C. S. 1921), and that the mere employment of the language of the statute is not sufficient. Section 1867, C. S. 1921, reads as follows:

“Any person who is guilty of the detestable and abominable crime against nature, committed with mankind or with a beast, is punishable by imprisonment in the penitentiary not exceeding ten years.”

Section 1868 provides:

“Any sexual penetration, however slight, is sufficient to complete the crime against nature.”

The statute gives no definition of the crime which the law with due regard to the sentiments of decent humanity has always treated as one not fit to be named. It was never the practice to describe the particular manner or the details of the commission of the act. Even in the time of Blackstone this rule was applied to the common-law crime of sodomy. 4 Bl. Comm. 215.

In the following cases it is held that an indictment or information, charging the commission of the crime against nature, in the language of the statute, is sufficient. Honselman v. People, 168 Ill. 172, 48 N. E. 304; Kelly v. People, 192 Ill. 119, 61 N. E. 425, 85 Am. St. Rep. 323; State v. Whitmarsh, 26 S. D. 426, 128 N. W. 580; Herring v. State, 119 Ga. 709, 46 S. E. 876.

This offense consists in a carnal knowledge, committed against the order of nature, with mankind or with a beast.

In Kelly v. People, supra, the court expressed the opinion that the accused would be guilty, where the penetration was per os, whether he was the pathic or not.

In Ex parte De Ford, 14 Okla. Cr. 133, 168 P. 58, this court said:

“The authorities in those states where the common-law definition of sodomy has not been enlarged upon are directly in conflict. Some are to the effect that the act here charged was not intended to be, nor was it, included within the term ‘sodomy’ as known to the common law, while the others, and to our mind better reasoned opinions, are to the effect that ‘all unnatural carnal copulation whether with man or beast seems to come under the notion of sodomy at common law.’ * * * And in such sense it includes copulation between human beings per os as well as per anum.”

It follows from what has been said that the demurrer to the information was properly overruled.

In order that the other questions raised may be properly understood, consideration of the evidence will be necessary.

Fred Freeman, the alleged assaulted party, was a little boy 13 years old, and attending school at Hallett. He went to school by going from his home to a point on the public highway, a distance of about 2% miles, on foot, and from there to and from school, a distance of 3 or 4 miles, in a school bus. A schoolhouse called Stony Point was about midway between his home and the place he met the bus. On the day alleged he left the school bus at the usual place, and on the road home overtook the defendant and a few minutes later the alleged offense was committed. The defendant was a large boy in his 18th year; he was nearly six feet tall and weighed over 200 pounds; he lived with his mother near Cleveland. A day or two before the alleged assault he left his home and proceeded to the town of Maramec for the purpose of paying a note due at the Maramec State Bank, making the trip on foot, except such occasional rides as he caught in cars. After paying his note he started on his return journey, stopping with a Mr. Allen that night, and the next day attended a public sale at the Lewis place. He left the sale' in a car driven by Carl Dye, and occupied by two or three other persons; leaving the car something more than a mile south of the Stony Point schoolhouse he started north iand arrived at his grandmother’s house about 5 o’clock; he was there arrested by a searching party that evening.

The Freeman boy testified: That he overtook the defendant on the road, and after a brief conversation the defendant pulled him into the brush and there by force and threats committed the offense. That the defendant then asked him what he would bring him if he would turn him loose, and he told him he would bring him anything he wanted. The defendant then told him to bring him $5 in the morning, or he would kill him and throw him into the creek; then he told him to go on. ‘ That he ran down the road as fast as he could run. After passing the Stony Point schoolhouse Mr. Firestone overtook him in a car and asked him to ride. That he got into the car and asked Mr. Firestone if he had a gun, and Mr. Firestone said, “No; what do you want with a gun?” and he told him there was a fellow down there that beat him and abused him, and Mr. Firestone asked him what he did, and he told him. That he left the car and went to his home and there told his father and his uncle what had happened. About that time Mr. Fletcher drove up in his car, and with his father and uncle he got into the car and Mr. Fletcher drove to the place where he left the defendant.

Two witnesses testified that they left the sale at the Lewis place in a car with the defendant and that he got out of the car about a mile south of the Stony Point schoolhouse and went north. Walter Hardy testified he saw the defendant at the Lewis sale that day and later saw both the defendant and the complaining witness on the public highway south of the Stony Point schoolhouse; that the Freeman boy was about 150 steps behind the defendant and both were going north.

J. W. Firestone testified that he was leaving the Stony Point schoolhouse, and as he got into his car he saw a boy running towards the schoolhouse; that he drove out on the road and overtook the boy within 100 yards and asked him to ride, and when the boy got in and he was crying and spitting and slobbering, the boy asked him if he had a gun, and he said there was a fellow back there that abused him and mistreated him worse than if he was a dog and that he wanted to go back and kill him, and that “he told me what he had done”; that the boy was with him for two or three minutes.

Dan L. Lancaster, undersheriff, testified that he arrested the defendant that evening and took him through the field to the place near the road where the alleged crime is supposed to have been committed; that defendant admitted that the tracks leading from the road were made by him. That he claimed that he left the road there, going through the fields to his grandmother’s.

Fred Freeman, the father of the little boy, testified that when his son reached home he immediately made complaint and told what had happened, saying the assault was committed by a big fellow wearing a brown cap, leather overcoat, and overalls ; that he immediately got into Mr. Fletcher’s car and they went to the place where the boy said the assault occurred.

The defendant testified, denying that he saw the Freeman boy on the road that afternoon or that he had anything to do with him, claiming he left the road south of the Stony Point schoolhouse and cut across the fields to his grandmother’s place. Several witnesses testified that they knew the defendant’s reputation in that community as being an honest, industrious, and law abiding boy and that his reputation was good.

It is contended that the court committed prejudicial error in permitting the witness Firestone to testify to the conversation had between himself and the Freeman boy, and in permitting the father of the Freeman boy to testify to the conversation which he had with his son, wherein he described his assailant. The record shows that this evidence was permitted to go to the jury against the defendant’s objections on the theory that it was a part of the res gestae.

The declarations to the witness Firestone were made a few minutes after the alleged act was committed, and the declarations to the father were made a few minutes thereafter, and, considering the little boy’s age, his appearance and condition when he complained to the witness Firestone and to his father, we are of the opinion that the testimony was properly admitted.

The rule is well settled that in cases of rape, where the injured female makes complaint of the fact that she has been ravished, that fact can be proved by the testimony of the prosecutrix or other witnesses in corroboration of her testimony, but by the weight of authority the evidence must be confined to the bare fact that complaint was made; the details or particulars of the complaint not being admissible as substantive testimony, unless the statements are a part of the res gestae.

Where the complaint is made immediately after the occurrence, it constitutes a part of the res gestae; and where the party assaulted is of tender years it would seem not only the fact that complaint was made but the particulars of the complaint as made should be admitted. Bouie v. State, 9 Okla. Cr. 345, 131 P. 953.

However, the rule authorizing evidence of the detailed statement as res gestae is not to be confounded with that which permits evidence that complaint was made, but rejects 'the details and particulars of such complaint. These rules are widely different, and the distinction is plainly observed and noticed in the authorities. When res gestae, it is original, primary testimony and can be introduced as such, and under the other rule it can only be used as sustaining or corroborative evidence.

In Morehead v. State, 12 Okla. Cr. 62, 151 P. 1183, Ann. Cas. 1918C, 416, it is said by this court:

“No fixed measure of time or distance from the main occurrence can be established as a rule to determine what shall be a part of the res gestae. Each case must necessarily depend on its own circumstances to determine whether the facts offered were really part of the same continuous transaction.”

And again the rule is well settled that if such declarations “are made under such circumstances as will raise the reasonable presumption that they are the spontaneous utterances of thought created by or springing out of the transaction itself, and so soon thereafter as to exclude the presumption that they are the result of premeditation and design, they will be admissible as part of the res gestae.”

As a general rule, to constitute declarations a part of the res gestae, it is not necessary that they were precisely coincident with the principal fact. If they sprang out of the principal fact, tend to explain it, were voluntary and spontaneous, and made at a time so néar it as to preclude the idea of design, they may be regarded as contemporaneous and admitted in evidence.

We see no reason to doubt that this conviction was justified by the evidence, and, finding no error prejudicial to the defendant, and it appearing that he had a fair and impartial trial, the judgment appealed from is affirmed.

EDWARDS and DAVENPORT, Jtt., concur.


text:
    E. M. DITMAN v. STATE.
    No. A-5766.
    Opinion Filed Jan. 15, 1927.
    (252 Pac. 449.)
    Lunsford & Windham, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen,, for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Le Flore county on a charge of robbery, and sentenced to serve a term of ten years in the state penitentiary.

We gather from the record that defendant was an alleged lawyer operating at Ft. Smith, Ark. Mrs. Grace Hill had formerly resided in Le Flore county, but at the time of the offense charged also resided at Ft. Smith. She had a claim for damages ai-ising out of a bastardy proceeding or white slavery episode against a citizen of Le Flore county, and employed defendant as her attorney. He negotiated with this person, or with his attorney, and procured an agreement to settle such claim and obtain a release for a consideration of $500. It was agreed between defendant and Grace Hill that defendant was to receive $100 out of the money so paid for his services, and that John Gunter, a codefendant, was to be repaid $10, which he had loaned Grace Hill. It appears that the person against whom Grace Hill made her claim, or his attorney, probably not wanting to run afoul of the Arkansas law or perhaps for some sentimental reason, would not make settlement other than in the state of Oklahoma. Defendant, his codefendant Gunter, Grace Hill, her daughter, about 17 years old, and her father, and two or three other persons, including the attorney for the person against whom Grace Hill made claim, in two cars, about dark on the day charged, drove from Ft. Smith across the Arkansas River bridge into Le Flore county, Okla., to a small building, and there a release was signed by Grace Hill, the attorney for the “payoff” man then counted out $500 in bills of $50 and $100 denominations, and tendered it to Grace Hill and her attorney. Both of them reached for the money, but the feminine touch prevailed, and she got possession of it. Defendant thereupon loudly demanded payment of his $100. The woman gave in answer the well-worn stall, “I’ll see you later,” and left the room closely pursued by defendant and Gunter. Outside defendant seized the Hill woman and a considerable scuffle ensued. The Hill woman claimed that in this scuffle defendant forcibly took the money from her while Gunter stood by, preventing any interference. Defendant denies that he got the money, even the $100 due him, though he made a valiant effort. The circumstances seem to bear him out, for after the scuffle the Hill woman returned into the house and another woman present searched her, assisted by defendant, to see if by chance the money was still on her person. After some wrangling, all the parties returned to Ft. Smith, defendant taking prosecuting witness to her home in his car. Later in the night, defendant borrowed a flash light at the county jail and with the Hill woman and her sister and another, returned to Le Flore county and they made a further search for the money where the scuffle took place. Not long after that, the Hill Woman, in making some payment, on two different occasions had a $50 bill changed. At the time of the offense charged, she was wholly without means and very much involved in debt, and with no appreciable income. There were considerable details and other circumstances in evidence not necessary to recite. There was also evidence of good character of defendant and evidence of several witnesses of the bad reputation for truth and veracity of prosecuting witness, Grace Hill. This, briefly, is the material evidence in the case.

Various assignments of error are argued and authorities cited, none of which we think it necessary to consider. The evidence, under any view of it, is obviously insufficient to sustain this verdict. Defendant may have been guilty of an assault and battery, but he is not guilty of robbery.

The case is reversed and remanded.

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    JOHN GUNTER v. STATE.
    No. A-5755.
    Opinion Filed Jan. 15, 1927.
    (252 Pac. 449.)

      White & Reid, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Le Flore county on a charge of robbery, and sentenced to serve a term of five years in the state penitentiary.

This is a companion case to case No. A-5766, Ditman v. State, 36 Okla. Cr. 77, 252 P. 449, just decided. The defendant was charged with the robbery of Grace Hill, and the prosecution was had on the theory that he aided and abetted the defendant Ditman in case No. A-5766. The conviction rests on substantially the same evidence as in that case, but which applies less directly against this defendant than against the defendant in that case. The evidence is insufficient to sustain the verdict.

Among the assignments of error argued is error in the instructions of the court, and the Attorney General has filed a confession of error, setting out that said instructions are erroneous and require a reversal, but, since we find the evidence insufficient to sustain the judgment in any view of the case, it is not necessary to give consideration to the confession of error of the Attorney General.

The case is reversed and remanded.


text:
    O. E. FOSTER v. STATE.
    No. A-5878.
    Opinion Filed Jan. 15, 1927.
    (252 Pac. 450.)

      A. J. Morris, and Lydick, McPherren & Wilson, for plaintiff in error.
    Ed. Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, A. E. Foster, was convicted on an information in substance, charging that, as cashier of the Caddo County Bank of Ft. Cobb, he made a false and fraudulent statement, purporting to show the condition of said bank to the state bank commissioner, then and there known by him to be false and untrue. On the trial the jury returned a verdict finding him guilty as charged and: fixed his punishment at confinement in the penitentiary for a term of two years and six months.

F!rom the judgment rendered in accordance with the verdict on May 6, 1925, an appeal was in due time perfected. On January 8, 1927, while the appeal was pending, appellant was granted a pardon, and the same was filed in the office of secretary of state on said day. His counsel of record has filed a motion to dismiss the appeal.

The uniform holding of this court is that, where a pardon has been granted by the Governor- and accepted, and the fact is brought to the attention of this court pending the determination of the appeal, the appeal will be dismissed. Gilmore v. State, 3 Okla. Cr. 639, 108 P. 416, 139 Am. St. Rep. 981; Keith v. State, 6 Okla. Cr. 618, 117 P. 652; Ernst v. State, 17 Okla. Cr. 282, 187 P. 930.

The appeal herein is therefore dismissed, and the cause remanded to the trial court.

EDWARDS and DAVENPORT, JJ., concur.


text:
    NEELY MARTIN v. STATE.
    No. A-5521.
    Opinion Filed Jan. 15, 1927.
    (252 Pac. 451.)
    A. E. Montgomery, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Tulsa county on a charge of having the unlawful possession of a still, and sentenced to pay a fine of $250, and to be imprisoned in the county jail for a period of 90 days.

It is shown by the record that defendant lived near Turley, in a five-room house, with a barn 40 to 60 feet distant on the same premises. At the time charged, certain officers with a search warrant went to the premises and found a copper still set up complete, with a gas burner, with coil leading through a water box, and with seven barrels of mash and a sack of sugar near by. The defendant testified that he farmed the premises and kept his horses in the barn, and owned some hogs in a pen immediately adjoining the barn, but that the barn was occupied by his brother and brother-in-law and another person, whose name he did not know, and that they took care of his stock, and that he did not operate, set up, or maintain the still found. The evidence of guilt is overwhelming.

The contention made is that the search warrant was invalid, as being based on an indefinite affidavit. The description to the affidavit is:

“* * * That said liquors are being disposed of in the manner aforesaid by one Martin, whose real name is unknown to informant, on the following described premises, situated in Tulsa county, Oklahoma, within said county and state, to wit: One certain three or four-room farmhouse, located about the center of section 5, township 20 north, range 13 east, Tulsa county, Oklahoma, together with the curtilage thereof and appurtenances thereto. * * *”

Other formal and essential averments are made in the affidavit. Section 30 of the Bill of Rights, state Constitution, requires that a warrant for search and seizure shall issue only upon a showing of probable cause, supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized. Under similar constitutional provisions, it is generally said that there should be a sufficient description of the premises to be searched, so that no discretion is left to the officer executing the warrant as to the premises authorized to be searched; that is, the warrant for search must not be general, authorizing an officer to search different places in his discretion, but its authority is confined to the search of the particular place described. Purkey v. Maby, 33 Idaho, 281, 193 P. 79; 13 A. L. R. 1318; Toole v. State, 170 Ala. 41, 54 So. 195; Luster v. State, 30 Okla. Cr. 346, 235 P. 935; Miller v. State, 34 Okla. Cr. 103, 245 P. 65.

This requirement of the Constitution, we think, was substantially met in the affidavit in this case, above quoted. Other contentions are made, but none of them have any merit, and are not of sufficient importance to require special discussion.

The trial court erred in his ruling, by permitting defendant to try the sufficiency of the search warrant, and the basis of the knowledge of the officer making the affidavit for search warrant, before the jury. Upon this point, the court permitted defendant, in the trial of the case before the jury, to offer evidence as to the source of the knowedge of the officer making the affidavit for search warrant, the truthfulness of his affidavit, the sufficiency of the description contained in the affidavit, and even permitted witnesses to state that from the description in the affidavit they would have been unable to locate the premises searched. This was all inadmissible in the trial of the issue of defendant’s guilt or innocence. Phillips v. State, 34 Okla. Cr. 52, 244 P. 451.

Some complaint is made of the instructions of the court, and of failure of the court to give other instructions. The instructions of the court, as a whole, fully and fairly state the law applicable. They are in fact more favorable . to the defendant than the law requires. None of the contentions made are tenable.

The case is affirmed.

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    W. P. PAUL v. GEORGE C. CRUMP.
    No. A-6460.
    Opinion Filed Jan. 15, 1927.
    (252 Pac. 853.)
    See, also, 36 Okla. Cr. 86, 252 P. 853.
    H. Tom Eight and I. O. Correll, for petitioner.
    J. T. McIntosh, Atty. for State Banking Board, and N. B. Johnson, Co. Atty., for respondent.
   PER CURIAM.

The relator has filed in this court his verified petition for mandamus, alleging, in substance, that George C. Crump, assigned district judge for the trial of criminal cases Nos. 1086, 1087, and 1088, now pending on the criminal docket of the district court of Rogers county, in which relator is the defendant in each of said cases, is disqualified by reason of bias and prejudice of the said judge against relator.

Counsel for respondent appeared December 28, 1926, and interposed a demurrer to the petition for this reason:

“That the facts and allegations set forth in said petition failed to state facts sufficient to warrant the relief prayed for; that said petition fails to set out and allege that the motion or application to disqualify said respondent in the district court of Rogers county has ever been presented to and passed upon by respondent; that until said application to disqualify the specially assigned judge, George C. Crump, respondent herein, and passed on by him adverse to the request and prayer of said petitioner, there is nothing to be passed upon by this court.”

Which demurrer, for the reasons stated, is by this court sustained, and the cause dismissed.


author: PER CURIIAM.

text:
    Ex parte W. P. PAUL.
    No. A-6461.
    Opinion Filed Jan. 15, 1927.
    (252 Pac. 854.)
    See, also, 36 Okla. Cr. 85, 252 P. 853.
    H. Tom Kight and I. O. Correll, for petitioner.
    J. T. McIntosh, Atty. for State Banking Board, and N. B. Johnson, County Atty., for respondent.
   PER CURIIAM.

This is an application for writ of habeas corpus by W. P. Paul, who represents and states that he is restrained of his liberty and is unlawfully imprisoned at Claremore, Rogers county, by the sheriff of said county; that petitioner is held under commitment issued in pursuance of a judgment and sentence rendered by the district court of Rogers county on the 20th day of December, 1926, wherein he was sentenced to serve a term of 15 years in the state penitentiary and to pay a fine of $4,000, upon conviction for the crime of embezzlement in the sum of $3'00 from the Farmer’s & Merchant’s Bank of Catoosa; that said court has fixed his appeal bond in the sum of $12,500, and affiant states that said sum is unreasonable and excessive and in violation of the constitutional provision that “excessive bail shall not be required” (Const, art. 2, § 9), and praying that this court enter its order fixing a reasonable amount of bond, pending the outcome of his appeal.

Upon the application being presented to this court, counsel for respondent interposed a demurrer to the petition on the ground:

“That the facts and allegations set forth therein are insufficient in law to justify the relief sought therein.”

In an application to this court for habeas corpus for reduction of bail upon the ground that the amount fixed by the trial court is excessive, it is not sufficient that this court might have originally have deemed a lesser amount sufficient. It must clearly appear that the trial court has abused its discretion to the extent that it denies the defendant his constitutional right. The mere fact that a defendant cannot make bond in the amount fixed by the trial court does not necessarily make such amount excessive.

Upon the record before us, we are of opinion that the demurrer should be sustained, and it is so ordered.


text:
    Ex parte GUY A. BOYD.
    No. A-6315.
    Opinion Filed Jan. 15, 1927.
    (252 Pac. 1117.)
    Tillman. Tillman & Pierson, for petitioner.
    The Attorney General and C. K. Templeton, Co. Atty., for respondent.
   PER CURIAM.

The petition filed in behalf of Guy A. Boyd for writ of habeas corpus to be let to bail discloses that he is held in custody by H. M. Freas, sheriff of Osage county, by virtue of a certain commitment, issued by R. L. Carroll, justice of the peace, of Pawhuska, as examining magistrate, upon a complaint wherein petitioner was charged with having robbed the Farmers’ State Bank of Burbank, and that on habeas corpus proceedings the district court of said county refused 'bail. Petitioner avers that he is not guilty of the offense charged, and that the proof of his guilt is not evident, nor the presumption thereof great, which will appear from a transcript of the testimony taken upon said preliminary examination. Upon a consideration of the record we are of the opinion that petitioner should be allowed bail, and the same is fixed in the sum of $20,000, bond to be conditioned as by law provided, and upon approval by the court clerk of Osage county he shall notify the sheriff of said county, who shall thereupon discharge said petitioner from custody.