text:
    WILL LOVE v. STATE.
    No. A-8274.
    Jan. 23, 1932.
    Rehearing Denied. May 28, 1932.
    (11 Pac. [2d] 769.)
    Green & Green and C. H. Glazner, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of McIntosh county of a second and subsequent violation of the prohibitory liquor law and was sentenced to pay a fine of $50 and to serve a term of one year in the state penitentiary.

At the time charged a deputy sheriff and other officers with a search warrant searched a building in the possession of defendant and found therein several gallons of whisky. Defendant did not take the stand and offered no testimony.

The contention is made that the search warrant is invalid for the reason that the affidavit to procure was made on information and belief. The affidavit was identified by the deputy sheriff who verified it and it was presented to the magistrate as a basis for his ruling, but was not offered in evidence and is not incorporated in the case-made. The comment of the trial judge indicates it was verified in positive terms. Error is not presumed, but must be made to appear affirmatively. There is no merit in this contention.

Next it is argued the search was invalid for the reason that it was not made by the officer to whom the search warrant is directed. The warrant is in the usual form: To any sheriff or constable of McIntosh county. It was executed by a deputy sheriff whose authority and qualifications are not questioned. Counsel insist that the service of a search warrant, to be valid, must be made by the sheriff in person or he must be present. Section 2882, Comp. St. 1921, is:

“A search warrant may in all cases be served by any of the officers mentioned in its direction, but by no other person except in aid of the officer, on requiring it, he being present, and acting in its execution.”

The foregoing- section is to be construed with section 5899, Comp. St. 1921, which reads:

“The sheriff in person, or by his undersheriff or deputy, shall serve and execute, according to law, all process, writs, precepts and orders issued or made by lawful authorities, and to him directed, and shall attend upon the several courts of record held in his county.”

A sheriff’s deputy is his agent and as such agent he may do any ministerial act that his principal may do. The service of a search warrant directed to a sheriff by a deputy sheriff is the act of the sheriff whether he is personally present or not. 24 R. C. L. p. 979, § 73; 35 Cyc. p. 1529, § 3. Section 2882, supra, does not require that the sheriff shall personally serve process directed to him or that he shall be present personally when the same is served. The presence and act of the deputy is the presence and act of the sheriff. The purpose of this section is to prevent abuse of this process by private persons. Dunn v. State, 40 Okla. Cr. 76, 267 Pac. 279.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    J. W. COOKE v. STATE.
    No. A-8293.
    May 28, 1932.
    (12 Pac. [2d] 244.)

      Fred E. LaRue, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Custer county of assault with a dangerous weapon, and his punishment fixed by the jury at a fine of $100 and imprisonment in the county jail for a period of 30 days.

It is first contended that the information is duplicitous. It is apparent from a reading of the information that the pleader was attempting to charge one assault with two different weapons. The information was not duplicitous, although poorly drawn.

The court sustained defendant’s objection to the introduction of any evidence, holding the information duplicitous and requiring the state to elect upon which of the two charges it would proceed to' trial. Thereupon the state elected to proceed upon the charge of assault with a dangerous weapon, to wit, a billy club. Thereupon defendant challenged the jurisdiction of the court to try the case for the reason that the information upon which the state had elected to proceed charged only assault and battery, and that it therefore appeared upon the face of the information that the court was without jurisdiction. This objection was overruled, exceptions saved, and the case is now before this court upon the question of the sufficiency of the information to charge an offense within the jurisdiction of the trial court.

To support this contention, defendant relies on Moody v. State, 11 Okla. Cr. 471, 148 Pac. 1055, where this court said:

“When the weapon charged to have been used is not a deadly weapon per se, then a sufficient description of such instrument, the manner in which it was used, and the effect produced by the use thereof, should be set forth. This rule, of course, would not be necessary if the weapons were deadly per se.”

There defendant demurred to the information, which charged an assault by “then and there striking W. May with a dangerous weapon, to wit, a wooden plank.” The facts and record in that case render it not in point here.

Defendant was charged in the case at bar under section 1764, C. O. S. 1921, which provides:

“Any person who, with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or airgun, or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding one year.”

It will be noted that this section covers the use of any “sharp or dangerous weapon.” Section 1756, C. O. S. 1921, uses the words “with intent to kill * * * commits any assault and battery upon another by means of any deadly weapon.” There the offense being the use of a deadly weapon with intent to kill, and here only an assault with a dangerous weapon.

The conflict, if any, in the authorities in this state, arises out of seeming to require the same particularity of pleading under section 1764, supra, as would be required under section 1756, supra.

In Clark v. State, 11 Okla. Cr. 494, 148 Pac. 676, 677, this court held an information drawn under section 1764, supra, charging an assault with a dangerous weapon, “to wit, a long rod or bar of steel or iron” to he sufficient as against an objection to the introduction of any evidence.

To like effect are: Fields v. State, 13 Okla. Cr. 731, 167 Pac. 344, where the charge was “a large knife”; Gidens v. State, 31 Okla. Cr. 137, 286 Pac. 912, where the charge was “an open pocket knife”; State v. Tidwell, 43 Ark. 71; People v. Pape, 66 Cal. 366, 5 Pac. 621; State v. Seamons, 1 G. Greene (Iowa) 418.

In the case of People v. Casey, 72 N. Y. 393, it was held:

“An indictment under laws 1854, c. 74, for an assault with ‘a sharp, dangerous weapon,’ is not invalidated for naming, besides a knife, a pistol, slungshot, billy, and club. Whether the instrument used was sharp is a matter to be proved at the trial.”

The words “billy club” as used in the case at bar are equally as strong as those used in the cases above cited, and are further strengthened by the fact that by section 1992, C. O. S. 1921, it is made unlawful for any person to carry upon or about his person any pistol, revolver, bowie knife, dirk knife, loaded cane, billy, metal knuckles, or any other offensive or defensive weapon. Thus the Legislature has included within the prohibited class of dangerous weapons the billy club, set out in the information in this case. It was not error, therefore, for the trial court to overrule defendant’s objection to the introduction of evidence under the information, and to overrule his motion in arrest of judgment.

Complaint is also made against certain instructions of the court and the refusal of the court to give certain requested instructions. An examination of the record discloses that the instructions given sufficiently cover the law as applied to the facts. It was not error, therefore, to refuse to' give the requested instructions.

Further complaint is made that the court erred in refusing to permit the defendant to introduce certain competent and material testimony in his behalf. An examination of the record discloses that the court permitted defendant to introduce all the competent evidence offered by him.

The judgment of the court was that defendant be imprisoned in the county jail for 30 days and pay a fine of $100 and costs, and be further committed until the fine and costs were paid. The ends of justice will be accomplished by remitting, the 30 days’ imprisonment, and committing defendant to the county jail until the fine and costs are paid.

The judgment is therefore modified and the punishment reduced to a fine of $100 and costs,, and defendant ordered committed to the county jail until the fine and costs are paid, and, as modified, the cause is affirmed.

EDWARDS, J., concurs. DAVENPORT, P. J., not participating.


text:
    HARRY PRICE v. STATE.
    No. A-8321.
    May 28, 1932.
    (12 Pac. [2d] 249.)
    E. H. Beauchamp, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Delaware county of larceny of live stock, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of five years.

It is first contended that the court erred in not arraigning the defendant and in requiring him to go to trial before arraignment, and voluntary plea was entered by him.

It appears from the record that on the 12th day of February, 1931, an information was filed against defendant in the district court, charging him with the larceny of live stock; that on the 6th day of April, 1931, defendant filed his motion and affidavit for a continuance; that upon the same day such motion was sustained and the cause continued; that on the 23d day of May, 1931, defendant filed his motion to quash and set aside the information; that on the same day defendant filed a demurrer to the information ; that on the 25th day of May, 1931, the motion to quash the information and the demurrer to the same were overruled; that on the 26th day of May, 1931, when the case was called for trial, the state announced ready for trial, and defendant announced not ready, and made application for a further continuance of the case, which application was denied; that thereupon a jury was impaneled and sworn to try the cause; that witnesses were called and sworn to testify and placed under the rule; that thereupon defendant objected to being placed upon trial for the crime charged, for the reason that he had had no regular preliminary hearing, and because there was a variance between the information and the complaint, and for the further reason that defendant had not been arraigned or entered a plea in the case, which objections were overruled by the court, to which defendant saved his exceptions and now contends that it was reversible error for the court to refuse to declare a mistrial upon his claim that he had not been arraigned or been given an opportunity to plead.

Motion to set aside an information or demurrer thereto are such pleas as may be entered on an arraignment, and are such as defendant may be allowed 24 hours in which to file. .Sections 2595 and 2596, C. O. S. 1921. After such pleadings are filed, there is no necessity to grant another 24 hours for a plea of not guilty. Section 2602, C. O. S. 1921; section 2615, C. O. S. 1921. Interposing a motion to quash or a demurrer to the information constitutes a waiver of the right to have 24 hours additional in which to plead. Schlumbohm v. State, 5 Okla. Cr. 36, 113 Pac. 235; Clark v. State, 29 Okla. Cr. 243, 232 Pac. 953. Arraignment may be and is waived where defendant proceeds to trial without objection on this ground. Ryan v. State, 8 Okla. Cr. 623, 129 Pac. 685; Simpson v. State, 16 Okla. Cr. 533, 185 Pac. 116; Thomas v. State, 17 Okla. Cr. 550, 190 Pac. 711; Sherman v. State, 19 Okla. Cr. 269, 200 Pac. 262; Brown v. State, 33 Okla. Cr. 217, 242 Pac. 1065.

Section 2627, C. O. S. 1921, provides:

“If the defendant refuse to answer the indictment or information by demurrer or plea, a plea of not guilty must be entered.”

The record in this case discloses that the trial court followed closely the statutory provisions in denying further time to defendant to plead, and in entering a plea of not guilty for him after his refusal to plead. All presumptions favor the regularity of the proceedings in the lower court. This court, therefore, will presume that the defendant was either arraigned or waived arraignment at the time he entered his demurrer to this information.

Complaint is next made that the court erred in overruling his motion for a continuance on account of the absence of a material witness for defendant.

This motion was properly overruled because it appears on the face of the affidavit that the evidence intended to be offered by this witness was purely hearsay, and for the further reason that there is not sufficient alleged in the motion to show the materiality of the evidence or to show its competency. Webber v. State, 18 Okla. Cr. 323, 193 Pac. 48; Vineyard v. State, 22 Okla. Cr. 76, 209 Pac. 783; Queen v. State, 23 Okla. Cr. 146, 212 Pac. 1021. There was no abuse of discretion, therefore, in denying the continuance.

It is next contended that the court erred in permitting the witness Caves to testify in rebuttal for the state, after it appeared that he had remained in the courtroom after the adoption of the rule. Such action on the part of the witness merely affected his credibility and subjected him to punishment for contempt, but the fact that he violated the rule did not disqualify him as a witness. Hembree v. State, 15 Okla. Cr. 422, 177 Pac. 385; Price v. United States, 1 Okla. Cr. 291, 97 Pac. 1056; Womble v. State, 50 Okla. Cr. 108, 296 Pac. 515.

It is next contended that the trial court erred in permitting, the state to' indorse on the information the name of Fred L. Pickens in lieu of E. A. Pickens originally indorsed thereon. This witness was present at the preliminary examination. Defendant and his counsel knew who he was, and the mistake made in giving the initials as E. A. instead of Fred L. did not mislead the defendant.

In felony cases less than capital, it is within the discretion of the trial court to' permit additional names to be indorsed on the information after the jury is impaneled and the trial begun. Montgomery v. State, 19 Okla. Cr. 224, 199 Pac. 222; Davenport v. State, 20 Okla. Cr. 253, 202 Pac. 18; Womble v. State, 50 Okla. Cr. 108, 296 Pac. 515; Robnett v. State, 51 Okla. Cr. 33, 299 Pac. 241.

It is next contended that the court erred in refusing to give defendant’s requested instruction No. 8. The court, on its own motion, in instructions No. 3 and No. 12, sufficiently covered tbe proposition of law in defendant’s requested instruction.

Finally, it is contended that- the evidence is insufficient to support the verdict of the jury. As is true in most larceny cases, the evidence is circumstantial, but, on the whole, is stronger than in most cases, and is sufficient to support the verdict of the jury. The cause is therefore affirmed.

EDWARDS, J., concurs. DAVENPORT, P. J., not participating.


text:
    WILSON CHAMBERS v. STATE.
    No. A-8351.
    May 28, 1932.
    (12 Pac. [2d] 257.)
    R. D. Howe, for plaintiff in error.

      J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of McIntosh county of the crime of rape in the first degree, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of 15 years.

The evidence of the state was that the defendant was about 25 years of age, married, and the father of two children; that the prosecuting witness, Bertha Chambers, was thirteen years of age and the stepsister of defendant; that the parties lived in separate houses on a farm in the eastern part of McIntosh county. The prosecuting witness testified to a series of attempts and acts of sexual intercourse between herself and the defendant, beginning when she was seven years of age and continuing until she was past thirteen years of age. Prosecutrix testified to three different acts of sexual intercourse where penetration occurred, one in 1929, when she was twelve years of age, one in the spring of the next year, and the final act on about the 12th day of January, 1931. She is corroborated by testimony given by defendant’s own mother and sister and by other witnesses for the state.

The court, on motion of counsel for defendant, required the state to elect upon which act of sexual intercourse it would depend for conviction, and the state elected to stand on the act which the prosecuting witness testified took place at the home of the defendant on or about the 12th day of January, 1931.

The defense was a general denial and an alibi for the 10th, 11th, 12th, 13th, 11th, and part of the 15th of January, 1931. A child was born to the prosecutrix on the 12th day of October, 1931.

Defendant contends first that tlie court erred in instruction No. 6, in telling the jury that it was not necessary for the state to prove the exact date alleged in the information, but the act upon which the state elected to prosecute must have occurred within three years prior to the filing of the information.

It is not contended that this instruction would not be proper in other cases, but that the same is improper in a rape case where there was the birth of a child.

Sections 2441, 2442, C. O. S. 1921, provide:

“There is no limitation of the time within which a prosecution for murder must be commenced. It may be commenced at any time after the death of the person killed.”
“In all other cases a prosecution for a public offense must be commenced within three years after its commission.”

Where, as in this case, there is proof of more than one act of sexual intercourse between the prosecutrix and the defendant, the state may be required to elect upon which particular act it will rely for a conviction. Montour v. State, 11 Okla. Cr. 376, 145 Pac. 811. This was done. It is only necessary that the act relied upon be within three years prior to the commencement of the prosecution under the express terms of section 2442, supra. Here the act relied upon was within a year prior to the commencement of the prosecution, and therefore was commenced within the time fixed by the statute. This is not a bastardy case, and it is immaterial whether a child was born as a result of the intercourse, or whether other men than the defendant ever had intercourse with the prose-cutrix, she being at the time under the age of fourteen years. If there'was any discrepancy between the date of the act relied on and the date of the birth of the child, that was a matter affecting solely the weight of the evidence and not the limitation of the action.

Some argument is made that the alibi of the defendant was sufficient to show that defendant could not have been guilty of the crime, since the child was born on the 12th day of October, 1931. Courts take judicial notice of the fact that the normal period of gestation of human beings is from 270 to as high as 285 days, and that incidents are known to medical science where the period extended beyond 300 days. McNamara’s Estate, 181 Cal. 82, 183 Pac. 552, 7 A. L. R. 313.

In the case at bar, an act of sexual intercourse either way for a period of a week or ten days prior or subsequent to the 12th day of January, 1931, could result in a normal birth on the 12th day of October, following. Proof, therefore, covering four or five days of such period would have no legitimate tendency to overcome the fact, of which this court would take judicial notice, that the normal period of gestation of a child born October 12, 1931, might be at any time in the month of January, 1931, prior to the 18th or 20th.

An examination of the record discloses that defendant had a fair trial, and that the evidence supports the verdict of the jury. The cause is therefore affirmed.

EDWARDS, J., concurs. DAVENPORT, P. J., not participating.


text:
    A. L. MELTON v. STATE.
    No. A-8368.
    June 4, 1932.
    (12 Pac. [2d] 251.)

      John L. Hodge, for plaintiff in error.
    J. Berry Bang, Atty. Gen., and Gus Rinehart, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter referred to as defendant, was convicted in the district court of Carter county of the crime of stealing an automobile, and his punishment fixed by the jury at imprisonment in the state penitenitary for a period of 11 years at hard labor.

Defendant contends first that the court erred in overruling his demurrer to the information for the reason that it is contradictory, repugnant, and undertakes to charge two offenses in one and the same count.

The true test of the sufficiency of an indictment or information is. not whether it might possibly have been made more certain, but whether it alleges every element of the offense undertaken to be charged and sufficiently apprises the defendant of what he must be prepared to meet. Sections 2555, 2564, and 2943, C. O. S. 1921; Warren v. State, 24 Okla. Cr. 6, 215 Pac. 635; Martin v. State, 35 Okla. Cr. 248, 250 Pac. 552; McGhee v. State, 49 Okla. Cr. 387, 294 Pac. 649; Sexton v. State, 49 Okla. Cr. 395, 294 Pac. 652; Burns v. State, 49 Okla. Cr. 396, 294 Pac. 653.

Under these authorities the information, although not in the best form, was sufficient to charge the offense.

It is next contended that the court denied to- defendant that fair and impartial trial guaranteed by the Constitution and the laws of the state.

It appears from the record that the defendant was arrested in May, 1931, and placed in the county jail; that a complaint was filed before a mágistrate shortly thereafter and on arraignment defendant waived preliminary hearing and was held to appear in the district court; that an information was filed against him on the 12th day of November, 1931; that during all this time he was in jail and unable to make bond; that he was arraigned on the 13th day of November; that he was accompanied by John L. Hodge, an attorney, who advised the court that he did not represent defendant, but that defendant desired to demur and, upon such demurrer being overruled, that he desired to waive further time and enter a plea of not guilty, and told the court that Archie Horn, who was confined in the county jail and in the custody of the state, was a material witness and he desired him to be brought into court to testify when the case came on for trial, at which time the court said: “We will see about that at the proper time.”

Defendant also stated he wanted to have his father there, and did not know whether he could be ready for trial at that time, to which the court said:

“All right, we will see at that time. Mr. Melton, be ready for trial on the 17th day of November, 1931.”

On the 17th day of November, the case was called for trial; the state appeared by Marvin Shilling, county attorney, and the defendant appeared in person, and stated to the court that he had theretofore been unable to employ-counsel and that the court had then indicated the appointment of John L. Hodge, who was thereupon by the court appointed counsel for defendant. It further appears that defendant’s counsel then stated that he had had no time to prepare the defense, and that because of the absence of Archie Horn, who was confined in the county jail and was a material witness, he had been unable to proceed to trial, and asked the court to fix another day during the term for the trial, and issue process to bring the witness Archie Horn into court. Thereupon, the court overruled the application for a continuance and the request to bring the witness Archie Horn into court.

After a jury was impaneled, counsel renewed the demurrer to the information and renewed his application for an order of court to the sheriff tO' bring the witness Archie Horn into court, stating that although Horn was jointly charged with defendant in the commission of the offense, the state had dismissed the case against Horn and he was therefore available and eligible to testify for the defendant, and offered in evidence a letter from Horn to defendant, in which Horn stated that he had stolen the car; that defendant knew nothing about it; and that if he was brought into court he would plead guilty to the charge.

Under this assignment, defendant has two specifications of error:

1. Abuse of discretion of the court in refusing to have the witness Archie Horn brought in to testify for defendant.

The fact that defendant was arraigned on the 13th day of November and forced to go to trial on the 17th, and the failure of the court to keep his promise to have the witness Archie Horn brought into court at the time of trial, discloses a disposition on the part of the court to arbitrarily force defendant into a speedy trial without sufficient time to prepare his defense.

The overruling of defendant’s application to bring the witness Horn into court was, under these circumstances, an abuse of discretion.

2. Error of the court in refusing defendant permission to have the stenographer take and make a record of the proceedings covering the dispute over the rebuke of counsel in the presence of the jury.

Section 3065, C. O. S. 1921, gives this right in criminal as well as civil cases. Corliss v. State, 12 Okla. Cr. 526, 159 Pac. 1015.

In Lamm v. State, 4 Okla. Cr. 641, 111 Pac. 1002, this court said:

“Any party to a cause has the right to demand that the court stenographer shall be required to take down any matter which may transpire at the trial, when such matter, if objected to, is such that it may properly be made a part of a case-made for appeal or proceeding in error.”

In Walker v. State, 6 Okla. Cr. 370, 118 Pac. 1005, this court said:

“If the attorney for a defendant requests the trial court to direct the court stenographer to take down and transcribe any statement of attorneys, or other proceedings occurring in the presence of the court which constitute a part of the trial, for the purpose of incorporating such statement in the case-made, and the court refuses to comply with this request, this may be shown by affidavits or other competent evidence; and such refusal, when so shown, will be held to> be prejudicial, without regard to the merits of the question, because it involves the right of a defendant to prepare and present a fair statement of what occurred in the trial court for review upon appeal.” Miller v. State, 9 Okla. Cr. 255, 131 Pac. 717, L. R. A. 1915A, 1088; Corliss v. State, supra; Tudor v. State, 14 Okla. Cr. 67, 167 Pac. 341; Wiswell v. State, 14 Okla. Cr. 517, 173 Pac. 662; Ewing v. State, 17 Okla. Cr. 690, 190 Pac. 274.

In Hodo v. State, 42 Okla. Cr. 65, 274 Pac. 688, this court held that it was not always error for a trial court to refuse to have the entire record taken, but that it was error for a court to arbitrarily refuse to have objections of counsel and proper parts of the record taken by the reporter.

In the case at bar, the court refused to have the stenographer brought into court to take the record objected to by counsel, although proper demand for the same was made, stating at that time, “All that counsel says is true,” and promising a bill of exceptions. When the time came to sign the bill of exceptions, the court refused to sign the same without eliminating that which defendant’s counsel contended was the heart of the error.

Counsel had the right to request the court to have the stenographer take the matter in dispute, and it was prejudicial error for the court to refuse such request.

“Courts should scrupulously maintain the right of every litigant to an impartial and disinterested tribunal for determination of his rights; and the judges presiding over such courts should be unbiased, impartial, and disinterested in the subject-matter in litigation, and all doubt and suspicion to the contrary must be jealously guarded against, and, if possible, eliminated.” Dennison v. Christopher, 19 Okla. Cr. 467, 200 Pac. 783; Tucker v. State, 9 Okla. Cr. 555, 132 Pac. 689.

Every person charged with crime, whether guilty or innocent, is entitled to a fair and impartial trial according to due and orderly course of law. It is a duty resting upon the courts to see that the guaranty of such trial shall he upheld and sustained. Bramble v. State, 37 Okla. Cr. 35, 255 Pac. 1104.

When the record shows that defendant did not have a fair trial, the cause will be reversed. Green v. State, 6 Okla. Cr. 585, 120 Pac. 667; Watson v. State, 7 Okla. Cr. 590, 124 Pac. 1101; Dupree v. State, 10 Okla. Cr. 65, 134 Pac. 86; Bramble v. State, 37 Okla. Cr. 35, 255 Pac. 1104.

When the whole record is considered in the case at bar, it is apparent that defendant did not have that fair and impartial trial guaranteed to him by the Constitution and the laws of the state.

There are other assignments, but as the case must be reversed by reason of the errors complained of, we deem it unnecessary to pursue the matter further.

The judgment is therefore reversed.

EDWARDS, J., concurs. DAVENPORT, P. J., not participating.


author: EDWARDS, J.

text:
    JESSE POWELL v. STATE.
    No. A-8319.
    June 4, 1932.
    (12 Pac. [2d] 247.)

      N. E. McNeill, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and C. E. Mitchell, Co. Atty., of Pawnee (Pren-tiss RoAve, of counsel), for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pawnee county of manslaughter in the first degree, and his punishment fixed at. imprisonment in the state penitentiary for a term of four years.

At the time of the homicide, defendant was about 70 years of age, resided alone on a farm. The deceased, Floyd Bell, was a young man about 20 years of age.' From the evidence, we gather defendant was eccentric, and had been annoyed by persons entering his farm and not securely closing the gate and probably by other trespassers. On the day of the homicide, young Bell and some other boys left Bell’s home on horseback and were driving some horses near defendant’s farm, and as a pastime were jumping their horses across a ditch along the road. While doing this, one of Bell’s horses fell into a ditch so that it could not extricate itself. Two- of the boys went to a neighboring house to get a chain for use in getting the horse out of the ditch. Not being able to secure one, Bell and a young man named Davis went to defendant’s house. Defendant was not at home, but was down in the field. The boys found a chain on a water barrel, took it, and, after getting the horse out of the ditch, Bell and a young man named Kendall went to defendant’s house to return the chain. On arriving there, Bell began replacing the chain where he had procured it, and Kendall was at the pump getting a drink of water. In the meantime defendant came to his house and went down to the gate which the boys had used and found it partly open. He returned to his house, got an automatic pistol, and went to his field, and returned to> his house as the boys were at the well replacing the chain. As he came to the bam, about 150 or 200 feet from the barrel and pump, he saw the boys there and demanded to know what they were doing. Upon this point defendant testified in part:

“'*• * * A. When he was over there I asked him, after he had told me he had just gotten back over the fence when he told me what he was doing. Q. Yes. A. He said, ‘I had a horse get in the ditch and I came here to get this chain to pull him out.’ I says, ‘Well, that is all right, but why didn’t you close my gate when you went out, so- I could keep my hogs in there?’ He said, ‘I was in a hurry and the fellow that was with me I thought was going to shut the gate.’ * * * A. After that I turned to the other boy and I said, ‘Were you the one that was with him, that left it open?’ He said, ‘No.’ I said, ‘Well, now, if it wasn’t you, who was it?’ He said, ‘I don’t know.’ ‘Now,’ I said, ‘you needn’t tell me that you don’t know, when you have been playing with him all afternoon.’ And then that made him mad and he just says, ‘Now here’ and just stepped off of the platform, just like he was coming to me, you know, and I had my hand — both hands in my pockets at the time, and I had the gun in my hand and when he started off, when he got off of the platform I shot him. * * * Q. Did you say that he stepped off the well platform and in what direction was he coming? A. He was coming right east off of the platform. A. All right. A. And he was just looking right at me, and I thought, you know, that he was aiming, that he was aiming to keep his eyes on me. He wasn’t going like he was going to get away, and so I just shot him, just aimed to shoot him in the leg. * * * Q. After he ran between the houses, did you look for the Bell boy? A. He had not gotten to the building until I looked for the Bell boy, and when I looked for the Bell boy he was on the south side of the well, coming over the fence. He just threw this foot over and then followed it up with this, and as he got on top of the fence, I was out that way, and I shot him right across there. * * *”

On cross-examination defendant testified:

“* * * A. I said, ‘Now, you needn’t tell me that you don’t know because you have been playing with him all evening.’ Q. That is when he stepped down off the —A. Off the platform. Q. Which way was he facing? Which way was his body facing at that time? A. Toward me. Q. But he stepped east off of the step? A. Yes, sir. He couldn’t step over the pump. Q. He was standing right there when you pulled down on him? A. He came off the platform and stepped on the ground and I shot him. Q. He was standing stock still? A. No, sir, I couldn’t say that he was because it was not but an instant before. * * * Q. He wasn’t coming toward you, Mr. Powell, was he, when you shot him? A. He couldn’t come to me without going over the pump, and he couldn’t do that. * * * Q. He did not have anything in his hands, did he? A. I did not see anything. Q. You know that he did not have anything in his hands? A. I did not see anything. He did not see anything in my hands or he would have stopped. *. * *”

The contention made is that the court erred in refusing defendant’s requested instruction defining and setting out the right of a person to defend his domicile. Subdivision 3, § 1762, Comp. St. 1921. These requested instructions follow the law as announced in the cases of Dickinson v. State, 3 Okla. Cr. 151, 104 Pac. 923; Collegenia v. State, 9 Okla. Cr. 425, 132 Pac. 375; Marshall v. State, 11 Okla. Cr. 52, 142 Pac. 1046; Arm-Garrison v. State, 19 Okla. Cr. 3, 197 Pac. 517; Garrison v. State, 9 Okla. Cr. 3, 197 Pac. 517; Nelson v. State, 34 Okla. Cr. 187, 245 Pac. 1009.

It is well settled that in a criminal case the accused is entitled to an instruction defining the law applicable to his theory and covering his defense if there is competent evidence tending reasonably to support his theory. But is there here from defendant’s own testimony any defense of domicile? The two boys who were shot may possibly have been guilty of a technical trespass on defendant’s premises, but when questioned by defendant they informed him of their purpose, to his satisfaction. Defendant evidently was angered by reason of his gate having been left open, and shot these boys without any substantial provocation. The law does not justify the use of a deadly weapon or the endangering of the life because of a mere trespass on or the invasion of real estate in the possession of another. In its most favorable light, defendant’s testimony does not make out a case of defense of domicile, but from his standpoint tends to prove self-defense. The law applicable is fully covered by the charge of the court. Under all the evidence, the jury was fully justified in finding the plea of self-defense was not well founded and that the killing, was not done under any actual or reasonably apparent danger to defendant from deceased and his companion. Under his own testimony, defendant is guilty of manslaughter, and the jury was extremely lenient in fixing the punishment at a term of four years in the penitentiary. There is no substantial error in the record.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


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    STATE v. L. C. FORCE.
    No. A-8363.
    June 4, 1932.
    (12 Pac. [2d] 246.)
    J. Berry King, Atty Gen., and Gerald Spencer, Co. Atty., and Owen Vaughn, Asst. Co. Atty., for the State.
   CHAPPELL, J.

On October 19, 1931, the state filed an information in the district court of Grady county against L. C. Force, the defendant, charging an assault with a dangerous weapon.

The case came on for trial on the 27th day of January, 1932, pursuant to regular assignment, the state be* ing represented by Gerald Spencer, county attorney of Grady county, and the defendant appearing in person and by his attorneys, Melton & Melton. The state and the defendant announced ready for trial, and a jury was impaneled. The information was read and' the opening statement for the state was made. Thereupon the court, upon its own volition and own motion, discharged the jury, and dismissed the case, because the information failed to state any offense against the laws of the state of Oklahoma, to which the state objected and excepted and which exceptions were by the court allowed.

Thereupon, the state filed a motion for a new trial, which was overruled, to which the state excepted and gave notice in open court of its intention to appeal to this court. Notice of appeal was duly served on the court clerk and the defendant and the appeal lodged in this court on the 16th day of March, 1932.

The state contends the court erred in setting aside, upon its own volition and motion, the information, and in holding as a matter of law that the information failed to state an offense against the laws of the state of Oklahoma.

The state was prosecuting defendant on a charge of assault with a dangerous weapon, as defined by section 1761, C. O. S. 1921, which reads:

“Any person who, with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or airgun, or other means whatever, with intent to injure any person, although without intent to kill such person gr to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding one year.”

The charging part of the information alleges:

“That on or about said day and date and in said county and state, the said L. C. Force, then and there being, did then and there willfully and unlawfully, intentionally and feloniously, without justification or excusable cause, make an assault in and upon one M. W. Powell, with a certain pistol, said pistol being then and there a dangerous weapon and then and there had and held in the hands of him, the said L. C. Force, and that the said L. C. Force did then and there with said pistol so had and held as aforesaid, strike, wound and injure then and there the said W. M. Powell in and upon the body of him, the said W. M. Powell, with the unlawful, wrongful and felonious intent, then and there, on the part of him, the said L. C. Force, to do bodily harm and injury to him, the said W. M. Powell, contrary to the form of the statute” etc.

In Clark v. State, 11 Okla. Cr. 494, 148 Pac. 676, 678; Fields v. State, 13 Okla. Cr. 731, 167 Pac. 344; Cotton v. State, 22 Okla. Cr. 252, 210 Pac. 739; Gidens v. State, 31 Okla. Cr. 137, 236 Pac. 912, and Kinter v. State, 40 Okla, Cr. 201, 267 Pac. 680, this court held similar informations charging assault with a dangerous weapon to be sufficient.

In the recent case of Cooke v. State, 53 Okla. Cr. 348, 12 Pac. (2d) 244, this court discusses the necessary allegations in an information for assault with a dangerous weapon, citing not only the Oklahoma cases, but also cases from Arkansas, California, and New York.

The defendant not having filed any demurrer nor otherwise raised the question of the sufficiency of the information, the court should have measured it by another and more liberal rule than if defendant had questioned its sufficiency as provided by law.

This court has repeatedly held that, if a defendant malíes no objection to the form or sufficiency of an indictment or information until after the jury has been impaneled, the objection should be overruled if, by any reasonable construction or intendment, the information can be sustained. White v. State, 4 Okla. Cr. 143, 111 Pac. 1010; Edwards v. State, 5 Okla. Cr. 20, 113 Pac. 214; Hoyl v. State, 7 Okla. Cr. 342, 123 Pac. 700; Wilsford v. State, 8 Okla. Cr. 535, 129 Pac. 80; Harrison v. State, 12 Okla. Cr. 398, 157 Pac. 707; Seay v. State, 29 Okla. Cr. 189, 233 Pac. 766; Brown v. State, 33 Okla. Cr. 217, 242 Pac. 1065; Brashears v. State, 38 Okla. Cr. 175, 259 Pac. 665.

In Chamberlain v. State, 42 Okla. Cr. 410, 276 Pac. 507, this court had under consideration an information which charged defendant with committing an assault by pointing a shotgun at several persons assembled in a room, and held the information sufficient where objection was raised for the first time to the introduction of any evidence, and also said in addition thereto:

“An information is sufficient if it charges an offense in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended, and with such a degree of certainty as to enable the court to pronounce judgment upon a conviction according to the right of the case.”

Measured by the authorities above cited, the information was sufficient to charge the offense, and much more would this be so since the defendant himself had at no time, either before or after the jury was impaneled, raised any question of its sufficiency.

The cause is therefore reversed.

EDWARDS, J., concurs. DAVENPORT, P. J., absent, not participating.


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    I. J. ALDER v. STATE.
    No. A-8311.
    June 11, 1932.
    (12 Pac. [2d] 545.)

      A. G. Morrison & Sons, for plaintiff in error.
    J. Berry King, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Blaine county of the crime of murder and his punishment fixed at death.

The record discloses that, at the time charged, the defendant shot and killed his brother-in-law, Tom McDonald, the wife of his brother-in-law, Nora McDonald, and also attempted to kill his own wife, but the gun failed to fire. The wife of defendant, the only eyewitness to the shooting, called by defendant, testified in part:

“* * * Q. He shot Tom? A. He shot Tom when Tom reached for the gun. Q. When Mr. Alder shot Tom McDonald, was McDonald fighting him or anything? A. No, sir, he was not. Q. Was there any argument going on? A. There was no argument whatever. There was none whatever, and he never even drew the gun on Tom. He drew the gun on me and when Tom reached for the gun he shot right then and Tom fell. Well, his Avife screamed and says, ‘He has shot Tom, — My God, Tom is dead/ and I says, ‘Nora, let’s run/ and I run out the front door and she came out behind me. Well, now, we was 20 or 30 feet I suspect from the house and, she said to me, ‘My God, Ad, I am shot’ — that’s my name ‘Adeline’ and when I turned and looked back — that’s when I looked back and she fell. * * *”

Counsel for defendant does not seek a reversal and presents only a plea for a modification of the sentence, basing this entirely upon the contention that defendant was insane, stating:

“* * The writer of this brief * * * after due consideration and consultation with relatives of the defendant, is going to' plead merely for a modification of the sentence imposed upon the defendant from death to life imprisonment. * * *”

The charge in this case is for the murder of Nora McDonald. The homicide was without any provocation. The only defense was insanity. Defendant did not testify. Prior to this trial an affidavit suggesting the present insanity of the defendant was filed under the provisions of sections 2866-2875, Comp. St. 1921, a trial had before a jury which returned its verdict finding defendant sane. Following that verdict, the trial was had from which this appeal is prosecuted. The evidence of insanity ivas again introduced, and the court instructed fully on the law of insanity. The evidence of insanity is substantial in character, and the evidence for the state contesting this issue is likewise substantial. A clearcut question of fact on this issue was presented.

It is settled by many authorities that insanity is a question of fact for the jury to determine under proper instructions. Adair v. State, 6 Okla. Cr. 285, 118 Pac. 416, 44 L. R. A. (N. S.) 119; Baker v. State, 9 Okla. Cr. 47, 130 Pac. 524; Reed v. State, 23 Okla. Cr. 56, 212 Pac. 441; Fray v. State, 46 Okla. Cr. 260, 285 Pac. 142; Carrick v. State, 49 Okla. Cr. 65, 292 Pac. 1053.

Since the only question urged upon this court by this appeal, is a modification of the sentence, and this, not by reason of any error occurring at the trial, but solely upon a question of fact, i. e., the insanity of the defendant a.t the time of the homicide, it is incumbent upon us to determine the power of this court to modify a judgment in a case where no error is asserted nor made to appear.

Under the provisions of section 2820, Comp. St. 1921, there is conferred on this court power to reverse, affirm, or modify the judgment appealed from. The right of modification, however, is not unlimited. It must as a matter o>f law be within the limits of the punishment fixed by the statute for the offense for which the accused was convicted. It must further be the exercise of a judicial power, as distinguished from the executive power of commutation, reprieve, pardon, or parole. These latter powers are by the Constitution, art. 6, § 10, vested in the Governor as the chief executive officer in the state, as was said by this court in the case of Fritz v. State, 8 Okla. Cr. 342, 128 Pac. 170, 177:

“The power of this court to modify a judgment inflicting the death penalty for murder to imprisonment for life at hard labor when deemed proper in the furtherance of justice is in no sense the power of commutation of the sentence of the lower court. Commutation can be granted only by the chief executive of the state, and is granted as a matter of clemency. The judicial power to modify a judgment and sentence and the executive power to pardon, parol, or commute are wholly distinct in their nature. The one is an award of justice and the other is an act of grace. Commutation is a matter of discretion and may be refused. Justice is imperative, and must not be denied. The fact that the Governor has the power to commute does not abridge the defendant’s right to appeal to this court for relief. In other words, this provision of our criminal procedure act makes it the duty of this court to review the record, and in a proper case, if necessary in the furtherance of justice, modify the judgment so as to prevent the imposition of punishment which the evidence will not warrant.”

The power conferred on this court to modify a sentence as a judicial act makes it the duty of this court in a capital case to examine the entire record and to carefully weigh and consider the evidence, including the evidence as to defendant’s sanity at the time of the homicide, to ascertain if, in the furtherance of justice, the judgment and sentence of death should be reduced to life imprisonment. In reviewing a capital conviction, this court will not hold an accused to strict rules of procedure, but will endeavor to determine if a carrying out of the judgment would be excessive punishment under all the facts and circumstances. Anthony v. State, 12 Okla. Cr. 494, 159 Pac. 934. In this case, if from the record we entertained a doubt of defendant’s sanity and, as a consequence, a doubt of his criminal responsibility, it would be the duty of this court, and we should not hesitate, to reduce the judgment and sentence.

Upon a consideration of the entire record, it is evident that, if the defendant was sane and criminally responsible for Ms acts, the homicide is murder and the death penalty fully justified. The question of the present sanity of defendant having been submitted to a jury in a trial to determine that single question, and his sanity at the time of the homicide submitted in the final trial to determine defendant’s guilt, and in each instance the verdict being adverse to defendant, this court cannot say the juries erred in their findings of fact or that we doubt the correctness of their findings. Upon what consideration then shall this court modify the judgment? Having regard for the law, we cannot do so for reasons of sentiment or sympathy; we can do so only if we can say judicially that under the entire record the punishment is too severe and that justice requires it to be modified to life imprisonment. So long as the death penalty as punishment for murder is a part of our law, and we are not arguing for an abolition of the death penalty, the deliberate unprovoked killing of another, as shown by the record, unquestionably warrants the extreme penalty.

There are ample safeguards in the law to fully protect from punishment one accused of crime who is not criminally responsible by reason of insanity. In this case a further inquisition may be had as to the mental condition of defendant upon a belief by the warden of the penitentiary of his insanity. Section 2788, Comp. St. 1921. The Governor, for his information, has the power to have an inquisition by alienists appointed by him to determine the sanity of the defendant. Finding no reason for a modification of the judgment and sentence as prayed, the case is affirmed.

The original time for the execution having passed, owing to the pendency of this appeal, it is considered, ordered, and adjudged by this court that the judgment and sentence of the district court of Blaine county be carried out by the electrocution of the defendant on Friday, August 19, 1932.

DAVENPORT, P. J., and CHAPPELL, J., concur.


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    KELLER COOPER v. STATE.
    No. A-8286.
    April 9, 1932.
    Rehearing Denied June 11, 1932.
    (12 Pac. [2d] 703.)
    L. S. Reed and R. Place Montgomery, for plaintiff in error.
    J. Berry King, 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 Kiowa county of burglary in the second degree, and his punishment fixed at a term of two years in the state penitentiary.

The record discloses that at the time, charged the smokehouse or meathouse of one Floyd May was burglarized on the night before ■ Christmas, and a quantity of meat stolen. The evidence for the state is that defendant lived about two miles from May’s residence. May testified that he and his brother butchered the meat a week before the burglary, that he trimmed the hams closely and sawed the bone near the joint in a particular slanting manner, and a bole was punched at the joint and saltpeter inserted to preserve it. While there is some little confusion as to the exact date, the evidence for the state tends to show that on the day after Christmas defendant was in the neighborhood of Tipton, Tillman county, with a quantity of meat similar to that stolen from May, attempting to sell it, and did sell a ham, with the bone sawed in a slanting manner and with saltpeter in the joint, to one Abell. This ham was recovered, and was identified by May as one of the hams stolen from his place. Defendant admits the sale of the ham, but claims the sale was on December 28, and that he had traded for the ham across the line in Texas. He also made the defense of alibi.

The principal contention made is that the evidence, being wholly circumstantial, is insufficient to sustain the judgment; that the testimony of May that he identified the ham recovered is not reasonable; and that the testimony of alibi conclusively accounts for the presence of defendant at the time of the burglary. The circumstances are all that might reasonably be expected in the case of a burglary or a larceny where committed in the nighttime, and where the proof in the nature of things must be circumstantial. To' say the least, it would be a remarkable coincidence that, on the day following the burglary, defendant should sell in a community, considerably removed from the place where he resided, a ham cut in the particular way and with saltpeter inserted in the joint in the same particular way as those stolen, and at the time attempt to sell other similar meat. The testimony of alibi is not at all conclusive. We are convinced the jury did not err in arriving at a verdict of guilty. The evidence abundantly sustains the verdict.

There is some argument that the information is insufficient. We deem it unnecessary to set out the information. It certainly apprises defendant of the offense charged with such particularity as to enable him to prepare his defense, and, if convicted or acquitted, to plead such fact against any further prosecution. Martin v. State, 35 Okla. Cr. 248, 250 Pac. 552; Scott v. State, 40 Okla. Cr. 296, 268 Pac. 312; section 2564, Comp. St. 1921.

Complaint is also made that the court erred in instructions 5, 6, and 7 of his charge. Instruction 5 is the usual instruction on circumstantial evidence, except that the court used the word “should” in one instance instead of the word “must.” Instruction 6 is a charge on the recent possession of stolen property. The contention is this instruction assumes defendant was in possession of the property stolen at the burglary, and is not predicated on this state of facts in case the jury shall so find. The instruction appears to have been intended as an abstract statement of the law, but is defective in that, toward the latter part, it appears to contain language making it concrete. However, the jury are clearly told by another instruction that they must find beyond a reasonable doubt that defendant did break and enter the building with the intent to steal, and, in the event of their failure to so find, they must acquit. These instructions are not so contradictory as to be misleading. Instruction 7 is the usual charge of alibi, except that the court has fallen into the error of telling the jury that if they “* * * entertain a reasonable doubt as to whether the defendant was in such other place, * * *” then they should give the defendant the benefit of the doubt and acquit him. This instruction was criticised in the cases of Stuart v. State, 35 Okla. Cr. 103, 249 Pac. 159, and Beck v. State, 50 Okla. Cr. 325, 297 Pac. 820. Under the evidence, there has been no miscarriage of justice. The errors complained of are within the harmless error doctrine. Section 2822, Comp. St. 1921.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


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    JOHNNIE GEE v. STATE.
    No. A-8317.
    June 11, 1932.
    (12 Pac. [2d] 547.)
    W. A. Ratterree and J. Hugh Nolen (F. E. Sides, on the brief), for plaintiff in error.
    J. Berry King, Atty. Gen., and Gus Rinehart, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Okfuskee county of the crime of robbery with firearms, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of five years.

It is first contended that the defendant is entitled to a new trial on account of misconduct of the county attorney in the cross-examination of defendant and his alibi witnesses.

Defendant had testified that he had never carried a gun in his life. On cross-examination, the county attorney asked him if he was ever arrested for carrying a gun. He answered that he was arrested with a gun once. He was then asked if at the time he was arrested he was not pointing this gun at policeman Gaines. Defendant said he Avas carrying a pistol, but not aiming it at anybody. When the county attorney sought to follow the subject further, the court sustained defendant’s objection.

The county attorney did submit the alibi witnesses to searching cross-examination, some of them particularly with reference to their associations and to prior convictions. This court has held that the state has a right to ask this kind of questions. Musgraves. v. State, 3 Okla. Cr. 421, 106 Pac. 544; Terry et al. v. State, 7 Okla. Cr. 430, 122 Pac. 559; Fowler v. State, 8 Okla. Cr. 130, 126 Pac. 831; Irvine v. State, 10 Okla. Cr. 4, 133 Pac. 259; Phillips v. State, 20 Okla. Cr. 415, 203 Pac. 902; Greenwood v. State, 51 Okla. Cr. 74, 299 Pac. 248.

This court will not reverse a case for the asking of improper questions, either of the defendant or his witnesses, unless the impropriety indulged in may have wrongfully influenced the verdict. Relf v. State, 44 Okla. Cr. 239, 280 Pac. 851; Hager v. State, 47 Okla. Cr. 132, 286 Pac. 815.

It is next contended that the county attorney was guilty of misconduct in his argument to the jury. An examination of the record discloses that the matters complained of in the argument were not such as could have in any wise influenced the verdict of the jury.

In Thacker v. State, 3 Okla. Cr. 485, 106 Pac. 986, this court said:

“Remarks of the prosecuting attorney in his argument before the jury, objected to as improper, will be considered and construed in reference to the evidence, and in order to constitute reversible error the impropriety indulged in must have been such as may have influenced the verdict.”

To the same effect are: Morgan v. State, 9 Okla. Cr. 22, 130 Pac. 522; Lewis v. State, 39 Okla. Cr. 119, 263 Pac. 473; Crowell v. State, 42 Okla. Cr. 392, 276 Pac. 518; Yeager v. State, 43 Okla. Cr. 318, 278 Pac. 665; Robinson v. State, 44 Okla. Cr. 189, 280 Pac. 1112.

Some complaint is also made as to the argument of the county attorney on the effect of fear on the human mind, and as to the nonappearance of the witness McEl-vaney. The fact that the jury assessed the minimum punishment in the case at bar is an a'nswer to the argument of defendant’s counsel that the misconduct of the county attorney produced a prejudicial effect upon the minds of the jury. At a former trial, another jury gave J. B. Payne, an accomplice of defendant and the man who drove the car up to the bank when the robbery was committed, 25 years in the penitentiary, while the jury in the case at bar, under stronger evidence, only gave the defendant, wild' held the gun and actively participated in the robbery, five years in the penitentiary.

Contention is also made that the trial court committed reversible error in not dismissing the jury at the time they reported and stated they had not reached a verdict.

The only reference to this proceeding is found at page 313 of the record, and reads as follows:

“Mr. Ratterree: The defendant excepts. Comes now the defendant and moves the court to declare a mistrial in the above case for the reason that on yesterday when the jury came in to make a report and being asked by the court how they stood as to numbers, the foreman, in the presence of the court in open court, stated that they stood nine for conviction and three for acquittal, and that the secrecy of the jury having been thus publicly made, defendant asks the court to discharge the jury for said reason and to declare a mis-trial and set this matter for trial at some future term of court” — which objection and motion was overruled by the court.

There is nothing in the record, aside from the statement of defendant’s counsel that the jury was brought into court, polled by the court, or made any such statement as claimed by counsel in his motion.

In order for this court to inquire into alleged errors, they must be affirmatively shown in the record. Every presumption must be indulged in favor of the regularity of the proceedings in courts of record. Price v. State, 5 Okla. Cr. 147, 113 Pac. 1061; Killough v. State, 6 Okla. Cr. 311, 118 Pac. 620; Bird v. State, 40 Okla. Cr. 80, 267 Pac. 281.

No contention is made that the evidence is insufficient to support the verdict of the jury, but a reversal is sought solely upon matters which in themselves are not sufficient to require a reversal of the case.

The cause is therefore affirmed.

EDWARDS, J., concurs. DAVENPORT, P. J., not participating.


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    MILT DUNAWAY v. STATE.
    No. A-8334.
    June 11, 1932.
    (12 Pac. [2d] 549.)
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Dewey county of selling whisky, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The sufficiency of the evidence is not questioned. The only contention is that the court erred in his instructions to the jury. On this point the case-made sets out the instruction No. 2. Following this is an exception. Then follows a motion to amend case-made alleging that instruction 2 as it appears in the case-made is not correct, but that as read to the jury' it contained the word “not,” shifting the burden to defendant and bringing it within the rule announced by this court in Weber v. State, 2 Okla. Cr. 329, 101 Pac. 355, Vaughn v. State, 9 Okla. Cr. 121, 130 Pac. 1100, and Brennon v. State, 27 Okla. Cr. 286, 226 Pac. 1062. The case-made then recites that the court overruled the application to amend. This is followed by affidavits that the instruction of the court was in this language:

“On the other hand, if upon consideration of all the evidence in this case, you entertain a reasonable doubt as to whether the defendant Milt Dunaway, in this county and state, on or about the date mentioned did Not’ sell said liquor and whisky you will find the defendant not guilty.”

An appeal is a new case in which the petition in error is the petition and the case-made or the transcript of the record is the proof. A matter assigned as error in the petition in error not supported by the case-made or transcript of the record cannot be considered in the appellate court. Saunders v. State, 4 Okla. Cr. 265, 111 Pac. 965, Ann. Cas. 1912B, 766, Cochran v. State, 4 Okla. Cr. 379, 111 Pac. 974.

Since the instruction claimed to- be erroneous is shown by the case-made to be correct in form, and since the trial court overruled an application to amend the case-made by showing the instruction to be in a different form, the assignment of error is not supported by the case-made. Proof by affidavit contradicting the record cannot be considered by this court.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


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    JOHN SHAW v. STATE.
    No. A-8320.
    June 11, 1932.
    (12 Pac. [2d] 550.)
    Ellmore Pinnick, for plaintiff in error.
    J. Berry King, Atty. Gen., and Gus Rinehart, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of robbery and was sentenced to serve a term of 15 years in the state penitentiary.

The record discloses that at the time charged defendant assaulted and robbed one R. T. Chapman, taking from the person of Chapman some $60 in money. In this robbery defendant was assisted by Willard Shaw and Ed Bos-ford. We deem it unnecessary to recite the facts proven, but under the testimony there appears to be no reason to doubt the guilt of defendant.

The only assignment of error argued is that the court erred in permitting certain witnesses to testify, the name of one of whom had been indorsed on the information by leave of court the day preceding the trial; the names of the other two had been indorsed a few days prior to the trial, and without notice to defendant or his counsel. Defendant announced ready for trial, and, after the jury had been impaneled, counsel objected to these witnesses testifying for the reason their names were not indorsed on the copy of the information furnished defendant, and that he had no knowledge that they would be called. These witnesses testified in chief and were material.

Sections 2511 and 2550, Comp. St. 1921, provide for the indorsing, of the names of witnesses on information in cases less than capital. This court has held many times in such cases that the names of additional witnesses may be indorsed at any time within the discretion of the court. Such indorsement is not error unless there is an abuse of this discretion. Nelson v. State, 5 Okla. Cr. 368, 114 Pac. 1121; Bigfeather v. State, 7 Okla. Cr. 364, 123 Pac. 1026; Star v. State, 9 Okla. Cr. 210, 131 Pac. 542; Montgomery v. State, 19 Okla. Cr. 224, 199 Pac. 222.

At the time the court overruled defendant’s objection to the witnesses testifying, counsel noted an exception. He did not state to the court he was surprised at the appearance of these witnesses. He made no application to withdraw his announcement of ready, made no application for a postponement or continuance on account of the appearance of these witnesses, nor asked time to procure witnesses to rebut their testimony. If we consider his position similar to that of a defendant where the court permits the indorsement of the names of additional witnesses after a defendant has announced ready for trial or a trial has begun, defendant may not rest upon a bare exception to the ruling of the court, but must withdraw his announcement of ready for trial and must file a motion for a postponement or continuance in which he should set up the facts constituting such surprise and what evidence, if any, he could produce if the case were postponed or continued, to rebut the testimony of such witnesses. To do otherwise is to permit a defendant to speculate upon the verdict of the jury, and, if it results in a conviction, to then claim a new trial on account of an abuse of discretion. Star v. State, supra.

This being the only contention made, the case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


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    ALTHEA REED v. STATE.
    No. A-8312.
    June 11, 1932.
    (12 Pac. [2d] 551.)
    Warren B. Phillips, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Seminole county of the unlawful possession of intoxicating liquor, and her punishment fixed by the jury at a fine of $50 and imprisonment in the county jail for a period of 30 days.

It appears from the record that defendant applied to the county court for an order to have a transcript of the evidence and record made at the expense of the state, which was denied. Thereupon defendant’s counsel prepared what purported to be a transcript of the evidence, together with the record required by law, and presented the same to the court clerk, who certified that the same contained a full, true, and complete transcript of the record in said cause. On the 8th day of December, 1931, when the record was presented to the trial judge, he refused to certify the same, but certified that the same was not a true and correct case-made and transcript. On the 9th day of December, 1931, petition in error was filed in this court with the aforementioned record attached.

Where application is made to the trial court to have the evidence taken at the trial transcribed and a record made at the expense of the state, the proper proceeding, where the trial judge refuses the application, is to file a petition in error in this court with transcript attached, and apply for an order requiring the record to be made at the expense of the state. Ex parte Wigger, 39 Okla. Cr. 108, 263 Pac. 1112.

When a defendant presents what purports to be a case-made to the trial judge, it is his duty to examine the same, and he must either sign and certify the case-made as presented, or correct the same until it speaks the truth. Where the judge refuses to perform his duty, upon application this court will compel him to act in the matter and to approve the case-made as finally corrected by him. State ex rel. Wigal et al. v. Wilson, 43 Okla. 112, 141 Pac. 426; State ex rel. Collins et al. v. Parks, 34 Okla. 335, 126 Pac. 242; State ex rel. Freeling v. Sullivan, 80 Okla. 81, 194 Pac. 446; Eubanks v. Cole, 4 Okla. Cr. 25, 109 Pac. 736; McLeod v. Graham, 6 Okla. Cr. 197, 118 Pac. 160; Allen v. State, 13 Okla. Cr. 522, 165 Pac. 742; Moore v. Taylor, 24 Okla. Cr. 80, 215 Pac. 965.

In the case at bar, the trial court arbitrarily refused to- perform his duty in settling and certifying the case-made. On application of defendant, this court would have compelled the performance of such duty.

Since the trial court refused to sign and certify the record as a case-made and since the certificate of the court clerk is sufficient to make such record a transcript, the case is before the court as an appeal by transcript and the court will examine the record for such error as may be predicated upon the transcript.

An examination of the record disclosing no substantial error, the cause is affirmed.

EDWARDS, J., concurs. DAVENPORT, P. J., not participating.


text:
    RAYMOND RIDER v. STATE.
    No. A-8251.
    June 11, 1932.
    (12 Pac. [2d] 552.)

      Hughes & Dickson and Rizley & Sweet, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Texas county of the crime of larceny of domestic animals, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of two years.

Defendant argues numerous errors, but to dispose of the case it will only b& necessary to consider two of them:

(1) That the court erred in overruling defendant’s demurrer to the evidence and in overruling defendant’s request for an instructed verdict.

Defendant was convicted upon the testimony of Bob Carter, an accomplice, a confessed thief and former convict, and Lonnie Garrett, who was employed by the prosecuting witness. Garrett testified, in substance, that he and Bob Carter were employed by Frank Lindsay to take care of some cattle and sheep; that he was invited by Carter to join him in stealing some of Lindsay’s cattle; that he told Lindsay of this proposition, and that Lindsay told him to go back and join in with these boys, and that “I wouldn’t get into no trouble in no way and try to catch this boy and try to find out how it was.” On cross-examination, referring to his arrangement with the prosecuting witness, Lindsay, he said: “He told me to go back down there and take those boys up and join in with them.” Garrett was thus commissioned to join in with the supposed thieves in their enterprise. No doubt this is what both Garrett and the prosecuting witness understood at the time. If Garrett was only commissioned to watch and take note of what happened, without being a party to it, why did Lindsay, after telling him to join in with the thieves in the enterprise, see fit to promise Garrett that he would get into' no trouble of any kind? The ordinary, obvious, and common-sense construction of the arrangement between Garrett and Lindsay is that Lindsay directed Garrett to become one of the thieves, for the time being and assured him that he would not be prosecuted therefor. And this is borne out by the conduct of the parties afterward. Garrett made the arrangement for the theft of this calf on the 18th day of March, 1931, kept the prosecuting witness and the officers posted as to the progress of the enterprise, and at the time the calf was stolen, the officers, together with the son-in-law of the prosecuting witness, were at the ranch watching these boys and followed them from the ranch in Texas to Hardesty, in Texas county

Garrett left Carter at the ranch and went to Har-desty, made the arrangements with defendant, if any were made, on the evening the calf was stolen, and not only assisted in catching and loading the calf, but actually drove the truck which conveyed it into Texas county and into the town of Hardesty, and was in possession of the calf and driving the truck at the time he and Carter were arrested.

According to Carter’s testimony, there was never anything except a general understanding between him and the defendant as to stealing any cattle. Carter testified he had once stolen a calf and tried to deliver it to defendant, but he had refused to receive it. Carter had invited defendant to visit the ranch on three different occasions and defendant had promised, but never came. Finally, Carter sent Garrett to see defendant and Garrett claims to have made an arrangement to steal the calf and to have received a pistol in payment therefor; claims that defendant instructed him to deliver the calf at his brother’s premises, some distance from Hardesty. Garrett claims that Carter went to the house and talked to defendant when they got there with the calf in the truck, but the officers who watched the house on both trips testified that they did not see defendant nor hear any conversation from him. The strange thing about the case is that defendant is nowhere in any manner connected with the larceny of the calf, except by the statements of Carter and Garrett. While the truck was taken to' defendant’s home with the calf in it, there is nothing in the record to show — aside from the testimony of Carter and Garrett —that defendant knew the truck was there or knew that the calf had been stolen.

Garrett did all these things with the knowledge and consent of the owner and after giving notice to the sheriff’s force that the crime would be committed at this particular time.

This statement of fact brings the case within the rule laid down in 18 Am. L. R. 174:

“Where the owner, in person or by his duly authorized agent, suggests to the accused the criminal design, and actively urges, co-operates with, and assists the accused in the taking of the goods, such conduct amounts to a consent to the taking, and the criminal quality of the act is wanting.”

In Roberts v. Territory, 8 Okla. 326, 57 Pac. 840, the Supreme Court of the territory said:

“Under an indictment for burglary, if it appeared from the evidence that the entry was instigated by the occupant of the building which was burglarized, or that it was done with the knowledge and assent of the occupant, and that one of the persons engaged in the breaking and entry of the building was a detective and decoy acting with the authority of the occupant, the defendant would not be criminally liable.”

To the same effect are: State v. Hull, 33 Cr. 56, 54 Pac. 159, 72 Am. St. Rep. 694; McGee v. State (Tex. Cr. App.) 66 S. W. 562.

The undisputed facts that Garrett left Carter in bed at the ranch and drove to the home of defendant, in Texas county, and claimed he made a deal to sell him the stolen calf, used Lindsay’s truck to transport it from the ranch into Texas county, helped load it, and was in possession of and driving the truck containing the calf when arrested with Carter, made him an active and official instigator and participant in every essential element of the alleged crime.

The court in the case of Shouquette v. State, 25 Okla. Cr. 169, 219 Pac. 727, said:

“Where one acts as a detective to entrap others in the commission of a contemplated robbery, and where he urges and induces others to join with him, and the detective himself proposes and plans the robbery, and is the chief actor in the forcible taking of the property, which would not have been taken without such inducements, to make one so induced to participate with him criminally responsible, the person so aiding such principal actor must have participated in every ingredient of the offense charged, making as to him a complete offense, independent of the acts of the procuring detective.”
“Where a private detective, in conjunction with officers of the court, acts as a decoy, and is himself the chief instigator of and performs the major part of the offense, such scheme will be deemed to be against public policy, constituting a good defense against the conviction of any who were induced to participate, and who would not have participated without such inducements.”

In Warren v. State, 35 Okla. Cr. 430, 251 Pac. 101, this court said:

“Where one is charged with a crime and defends on the theory that the acts constituting an essential element of the alleged offense were instigated by officials or persons acting under their direction, the test of criminality is, Did the officers or those acting under them first suggest the commission of the criminal act or lure the accused into the commission of such acts or perform any of the essential acts constituting the offense? If so, a sound public policy will not uphold a conviction. But, if the first suggestion for the commission of the crime came from the defendant, and all of the essential acts constituting the crime were done by him, then the fact that the officers or those acting under them, for the purpose of entrapment, furnished an opportunity and lent aid in the commission of the offense less than the performing of some essential act constituting the offense, or were present with and apparently assisting in the commission of the crime, constitutes no defense.”

In the body of the opinion, the court said:

“The turning point in this class of cases is that a decoy may be used to detect or entrap a criminal, and as such may afford an opportunity for a criminal to commit a crime, and may be present apparently assisting in the commission of a crime, and such action on the part of the decoy will not constitute a defense. But, when the decoy first suggests, initiates, or induces the commission of the crime, or, as it is sometimes said, ‘artificially propagates’ the crime, and thereby lures an otherwise innocent person to aid and abet him, or where the decoy himself does some act essential to the crime charged, a sound public policy will not uphold a conviction” — citing numerous authorities to support the rule.

It was error, therefore, for the court to overrule defendant’s request to advise the jury to acquit defendant.

(2) Defendant nest contends that the court erred in ■refusing to give his requested instruction No. 1, which reads ,as follows: “Gentlemen of the Jury, you are instructed that the owner of personal property cannot, either by himself or his agent, actually participate in the commission of a crime and hold any of the parties thereto criminally liable, no matter how morally guilty they may be; therefore, in this case, if you find and believe from all the evidence, facts and circumstances, or have a reasonable doubt thereof, that Frank Lindsay, the owner of the domestic animal described in the information, did authorize one Lon Garrett to join in the theft of said domestic animal and that said Lon Garrett, in pursuance of said authorization, did actively aid in the catching, loading and transporting the animal, with the .knowledge and consent of the owner thereof, then, and in that event you are instructed that the defendant, Raymond Rider, cannot be guilty of the crime of larceny as charged in the information, no matter how morally guilty he might be, and without regard as to whether or not he actually intended to engage in the commission of a crime.”

The instruction requested by the defendant and refused by the court was based upon the testimony of Garrett and merely told the jury that, if Lindsay, the owner, authorized Garrett to join in the theft, and, in pursuance of such authority, Garrett, the agent and decoy of the owner, did actively aid in the stealing of the animal, with the knowledge and consent of the owner, then they could not convict defendant, regardless of his moral guilt.

It appears from the record that, when the court overruled defendant’s demurrer to the evidence and his motion for an instructed verdict, he did so upon the theory that the plan to commit the crime had been formulated between Carter and defendant prior to the entry of Garrett into the transaction. A careful examination of the record reveals no evidence, other than that of Carter, an accomplice, that in any wise tends to connect the defendant with the commission of the offense, and Carter himself says that he never, at any time, made any arrangement with defendant to sell him any particular stolen cattle, and had not agreed with him to steal the calf in question.

In Shouquette v. State, supra, the defendant requested an instruction embodying the same principle of law as in the case at bar, which was refused by the court. This court held that it was error to refuse to give such instruction.

It is elementary that a defendant has a right to have a clear and affirmative instruction given to the jury, applicable to the testimony, based on the hypothesis that it is true, when such testimony affects a material issue in the case. Shears v. State, 20 Okla. Cr. 193, 201 Pac. 816; Moore v. State, 35 Okla. Cr. 257, 250 Pac. 538; Davis v. State, 20 Okla. Cr. 204, 201 Pac. 1001.

The practice of employing one thief to catch another, by participating with him in the commission of the crime, is of doubtful propriety. It is a bad investment financially, and as a matter of public policy a conviction ought not to be upheld in a case like the one at bar, where the witness against defendant is not only the instigator of the offense, but actively participates in the commission thereof.

The instruction ashed for set forth the law of the case upon defendant’s theory, and the court erred in refusing to give it.

Under the evidence of the state and the authorities cited, the evidence was insufficient to establish the guilt of the defendant.

For the reasons stated, the cause is reversed.

EDWARDS, J., concurs. DAVENPORT, P. J., absent.


text:
    NOAH LANGLEY v. STATE.
    No. A-8242.
    April 23, 1932.
    Rehearing Denied June 18, 1932.
    (12 Pac. [2d] 254.)

      Jno. L. Ward, Preston S. Davis, and Roy S. Sherry, for plaintiff in error.
    J. Berry King, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of manslaughter in the first degree, and his punishment fixed at 25 years in the state penitentiary.

On the early morning of December 27,1930, defendant shot and killed one T. D. Wright. Just before daylight on that morning, defendant, a police officer of several years’ experience, who also carried a commission as a deputy sheriff, with two other officers, Stubblefield and Burrows, went to the residence of Wright, about a mile outside the Tulsa city limits. Wright and his wife occupied one room, a brother-in-law Thompson and his wife another room, and one Bayne was sleeping on a divan in still another room. Defendant and his fellow officers knocked and were admitted by Bayne, who informed them Wright was in the adjoining bedroom. They went in where Wright was, and one of them said they wanted a drink. Wright got up, dressed, and they told Mrs. Wright they wanted her to prepare the drinks, and went into the kitchen. Wright procured a bottle of whisky, and his wife prepared three drinks each for the defendant and his companions. Soon Burrows, Bayne, Mrs. Wright, and Mrs. Thompson left the premises. There is some conflict as to just what was done after that, but the evidence for the state shows that Stubblefield became intoxicated and laid d.own upon the divan. Defendant was either sick or intoxicated and was put to bed in the room lately occupied by Wright. Soon afterwards Bayne returned and shortly after the shooting followed. The killing is admitted, but there is a wide divergence in the testimony for the state and for the defendant. In substance, the state contends that defendant conceived the notion that some money had been taken from him and accused deceased of taking it, demanded its return; that deceased protested that he had. not taken any money from him, and that thereupon defendant shot and killed him while he was wholly unarmed and protesting his innocence. Defendant contends he went to the Wright premises for the purpose of attempting to locate some fugitive criminals he had been informed would be at this place early in the morning. He admitted he and his fellow officers went into the house as shown by the testimony; that they went into the Wright bedroom, thence to the kitchen; that the toddies were made by Mrs. Wright; that Stubble-field did become intoxicated, but that defendant did not drink the toddies prepared for him, but merely touched them to his lips. Defendant denies he was put to bed, but testified he was seated in a chair, with his hat and overcoat on as if asleep. That deceased came where he was, reached inside of defendant’s vest, and was taking the money when defendant seized him. That deceased jerked loose, drew a pistol, and snapped it at him, and he then fired in self-defense. That deceased again snapped the pistol, and defendant continued to fire until deceased fell to the floor. That defendant then took the pistol of deceased and kept it in his possession until Sunday, although he was placed in jail on Saturday.

It is argued at length that the evidence is insufficient. An examination of this contention discloses it is directed to the credibility of the witnesses and the weight and value of the testimony rather than to a lack of evidence. The testimony of Bayne, Thompson and of Raus, who lived nearby, who testified he came into the back door of the house just as the shooting began, fully sustains the state’s theory. The decisions of this court, while stated in different language, are practically uniform that the credibility of the witnesses and the weight and value of the testimony is peculiarly within the province of the jury, and, when there is a direct contradiction between witnesses, it is for the jury to determine which they will believe. They may believe the testimony of one witness upon a state of facts as against several testifying to a contrary state of facts. In this case, although defendant was a peace officer of many years’ standing, the jury evidently believed the testimony of witnesses for the state and not the defendant. Ordinarily the determination of the jury upon a question of fact supported by evidence will be sustained. Remillard v. State, 10 Okla. Cr. 438, 133 Pac. 1132, 137 Pac. 370; Flowers v. State, 12 Okla. Cr. 320, 155 Pac. 904; Queen v. State, 35 Okla. Cr. 414, 250 Pac. 935; Sanders v. State, 46 Okla. Cr. 293, 287 Pac. 846.

This does not conflict with the further holding of this court, in substance, that the evidence is insufficient, if there is no substantial testimony tending to show guilt or where the evidence is so weak and inconclusive that a conclusion of guilt may not reasonably be drawn from it, or that it indicates the jury must have acted from partiality, passion, or prejudice. Brown v. State, 3 Okla. Cr. 42, 104 Pac. 78; Jefferson v. State, 31 Okla. Cr. 44, 236 Pac. 914; Underwood v. State, 36 Okla. Cr. 21, 251 Pac. 507.

Complaint is next made that the court erred in admitting incompetent testimony for the state and in rejecting competent testimony offered by defendant. This assignment is directed to various items of testimony in the record. In one instance, defendant’s witness, Chief of Police Marrs, had testified he saw defendant in jail soon after the homicide, and that he was not intoxicated. He was asked on cross-examination if his purpose in going to the jail was not to take up defendant’s commission as an officer. This was objected to, and the question was not answered. Defendant contends the asking of this question indicated to the jury the opinion of the chief of police. As another item, defendant on cross-examination was asked if, when Chief Marrs came to the jail and asked him about the case, he did not refuse to tell him. Defendant answered: “I didn’t tell him anything to amount to anything.” Then defendant was asked if Marrs, in substance, did not say to him, if he would tell him what happened, he would assist him, and if defendant did not answer he had nothing to say and would not talk until he had talked to his lawyer. The court sustained an objection to this and instructed the jury to disregard it. The county attorney then said: “* * * That is competent as it can be.” No exception was taken to this statement. The point is made that a defendant in a criminal case is not called upon to contradict statements prejudicial to him, but has the right to remain silent, and the fact that he did not contradict statements implying guilt is not admissible in evidence against him. This is a sound rule fully supported by the authorities. Ellis v. State, 8 Okla. Cr. 522, 128 Pac. 1095, 43 L. R. A. (N. S.) 811; Cumpton v. City of Muskogee, 23 Okla. Cr. 412, 225 Pac. 562; Mackey v. State, 30 Okla. Cr. 31, 234 Pac. 782.

An examination of the record as to the various items convinces us that they are without substantial merit. In most instances, no objections to the questions were made, or, if made, were generally sustained. There may be errors in a few instances, but they are not material.

Argument is also directed to the admission of certain acts and statements of Stubblefield who was jointly charged with defendant. Under the testimony, Stubble-field and Burrows were acting in conjunction with defendant, and while so acting their acts and statements would be admissible. With few exceptions the testimony shows all the acts or statements of Stubblefield were in the presence of defendant.

Under the third assignment, we are pressed with the argument that there is error in the court’s instruction No. 8. This instruction is a definition of premeditated design and malice aforethought. The substance of this charge has been approved in several cases. See 13 R. C. L. p. 763, § 73 f. This charge relates to the crime of murder. Defendant was convicted of manslaughter. The error, if any, is harmless. Byars v. State, 7 Okla. Cr. 650, 126 Pac. 252; Duncan v. State, 11 Okla. Cr. 217, 144 Pac. 629; Littleton v. State, 19 Okla. Cr. 461, 200 Pac. 716.

Some argument is made that the court erred in failing to sustain a challenge for cause to the juror Kerr. No authorities are cited, and an examination of the record convinces us that it is without merit. Complaint is also made of a statement of the court during the impaneling of the jury in saying: “I am saying that because I want to- give you a fair chance to get the jury, and then if you cannot get it, I will get the jury. Go ahead.” The court at the time stated this remark was directed to both counsel for the state and counsel for defendant; no exception was taken.

It is urged that the court erred in not admonishing the jury in full at each recess of the court, as required by section 2717, Comp. St. 1921, not to form or express any opinion until the case should finally be submitted. There was no- request for any additional admonition, nor any objection or exception at the time. Having, acquiesced in the admonition given by the court by failure to object, defendant will not now be heard to complain. Yarbrough v. State, 13 Okla. Cr. 140, 162 Pac. 678; Sanders v. State, 46 Okla. Cr. 298, 287 Pac. 842.

In the reply brief, plaintiff in error seeks to- present an additional claim of error not before raised either by a motion for a new trial, in the petition in error, nor in the brief. This claim is that the jury by lot arrived at that part of the verdict by which they reported a disagreement as to the punishment and left the same to the court. Defendant asserts:

“* * * That shortly after the verdict was returned in this case and the jury discharged, that a persistent rumor was afloat to the effect that the jury had arrived at the verdict returned by a gamble and a chance, by the flipping or tossing of a coin. * *

Counsel follow this up by stating they were unable to get any definite information upon this until April 6, 1932, when they procured two affidavits from jurors. The originals of these affidavits are attached to the reply brief. These affidavits state that:

“* * * The jury arrived by ballot in the usual way at the guilt of defendant of manslaughter in the first degree. * *

Then it is stated that they were unable to- agree upon the punishment and finally did agree that they would toss a coin and in this manner would determine if the punishment would be left to the court or would be fixed at a minimum of four years. We must determine if this question can be raised for the first time in this court. The Criminal Court of Appeals is, as its name implies, with a few exceptions a court of review, with appellate jurisdiction only. Article 7, § 2, Const.; chapter 10 (sections 3037-3055) and section 423, Comp. St. 1921; Crump v. State, 7 Okla. Cr. 535, 124 Pac. 632; In re Talley, 4 Okla. Cr. 398, 112 Pac. 36, 31 L. R. A. (N. S.) 805. In cases appealed invoking the appellate jurisdiction of this court and raising questions other than those going to the jurisdiction of the court, it does not have the power to hear additional evidence or to consider questions unless decided adversely to the appellant and presented to the lower court by motion for a new trial and assigned as error in this court. Ledgerwood v. State, 6 Okla. Cr. 105, 116 Pac. 202; Mitchell v. State, 7 Okla. Cr. 563, 124 Pac. 1112; Dew v. State, 11 Okla. Cr. 581, 149 Pac. 917; Brashears et al. v. State, 38 Okla. Cr. 175, 259 Pac. 665; Whittington v. State, 51 Okla. Cr. 333, 1 Pac. (2d) 840.

A jurisdictional question may be raised at any time, before or after trial, in a motion in arrest of judgment, or even for the first time in this court. Gibbons v. Territory, 5 Okla. Cr. 212, 115 Pac. 129, 130; Crump v. State, supra; Morrison v. State, 37 Okla. Cr. 359, 258 Pac. 1050. The matter sought to be presented in the reply brief is not jurisdictional. It does not challenge the validity of the verdict finding defendant guilty of manslaughter, but only that part of the verdict reporting a disagreement on the punishment. It discloses the jury had in fact disagreed as to the punishment. It also discloses that defendant knew of the rumor and did not in his motion for a new trial or by supplemental motion set up this ground in the trial and summon the jurors before the court to ascertain the truth of the rumor. This court is without power to entertain the objection raised in this manner.

We have examined the record of this case with care. The case was closely tried both by counsel for the state and counsel for defendant. The. trial judge was uniformly fair in his rulings; the record is clean and free from any substantial error. No reason why this court should disturb the judgment is made to appear.

The case is affirmed.

CHAPPELL, J., concurs. DAVENPORT, P. J., not participating.


text:
    WILLIE ROBERTS et al. v. STATE.
    No. A-8339.
    May 28, 1932.
    Rehearing Denied June 18, 1932.
    (12 Pac. [2d] 253.)

      F. A. Greene, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of McIntosh county of having the illegal possession of intoxicating liquor and were each sentenced to a term of 30 days in the county jail and to pay a fine of $50.

At the time charged, the sheriff and deputies went to the premises of Le Roy Roberts with a search warrant to search for intoxicating liquors. Defendant Le Roy Roberts and his family were absent; the only person present was defendant Willie Roberts, who when advised by the sheriff he had a search warrant for the premises immediately fled to' the back of the house and partially submerged a pitcher containing whisky in a large slop can, but about this time the officers seized the pitcher and testified it contained about a half gallon of whisky with some water in it. The copy of the search warrant was not served on him until after the whisky had been seized.

The principal complaint is that the search was invalid for the reason it was made before the search warrant was served. There is nothing in this contention. Section 7009, Comp. St. 1921, in part provides:

“* * * A copy of said warrant shall be served upon the person or persons found in possession of any such liquor, * * * and if no person be found in the possession thereof, a copy of said warrant shall be posted on the door of the building or room wherein the same are found.”

Defendant Willie Roberts, under the undisputed evidence, had possession of the pitcher containing whisky at the time it was seized, and, as stated, was attempting to mix it with the kitchen slop. Neither law nor common sense requires an officer under such circumstances to serve the search warrant before seizing the whisky. Thigpen v. State, 51 Okla. Cr. 28, 299 Pac. 230; U. S. v. Camarota et al. (D. C.) 278 F. 388.

The evidence is not sufficient to sustain the judgment as to defendant Willie Roberts. He lived some two blocks away and had gone to the premises of his brother about ten minutes before the officers arrived. It is not shown that he had any connection with the whisky except temporary possession for the purpose of destroying it, and certainly not with any intent to sell, give away, or otherwise furnish the same. As to defendant Le Roy Roberts, the evidence is weak, but we are not prepared to say that it is insufficient. The case is, therefore, reversed as to Willie Roberts, and affirmed as to Le Roy Roberts.

DAVENPORT, P. J., and CHAPPELL, J., concur.