text:
    STATE v. ED. M. WEST.
    No. A-2388.
    Opinion Filed April 20, 1918.
    (171 Pac. 1127.)
    OFFICERS — Misappropriation of Public Funds — Sufficiency of Information. An information charging a county treasurer with receiving interest and profit arising from the use of public funds in his hands as such treasurer held sufficient, and that the court below erred in sustaining the defendant’s demurrer thereto.

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

    Ed. M. West was informed against for receiving money and profits arising from use of public funds in his hands as county treasurer. From a judgment sustaining a demurrer to the information, the State appeals.
    Reversed and remanded.

      S. P. Freeling, Atty. Gen., R. McMillan, Asst. Atty. Gen., and G. C. Wamsley, Co. Atty., for the State.

      A. J. Morris, for defendant in error.
   DOYLE, P. J.

In this case the state appeals from a judgment of the district court of Comanche county sustaining a demurrer to an information which, omitting formal parts, is as follows:

“That on the 7th day of May, in the year of our Lord one thousand nine hundred and thirteen, at and within said county and state, and within the. jurisdiction of said court, one Ed. M. West, then and there being, did then and there commit the crime of receiving interest and profit arising from the use of public money, and did then and there intentionally, unlawfully, willfully, feloniously, and corruptly, he, the said Ed. M. West, then and there being the duly elected, acting, and qualified county treasurer of Caddo county, State of Oklahoma, and having prior to the first day of April, 1918, received into his hands as such county treasurer the sum of twenty-five thousand dollars, public money belonging to the said Caddo county, and the said sum of money prior to the first day of April, 1913, having been by him, the said Ed. M. West, as such county treasurer, duly deposited in the Anadarko State Bank, a banking corporation located at Anadarko, Caddo county, State of Oklahoma, to his credit as such county treasurer, and the said Anadarko State Bank being then and there one of the duly appointed and chosen and qualified county depositories of said Caddo county in which money belonging to the said county could be deposited up to the sum of twenty-five thousand dollars, received directly from the said bank, by way of a credit to his, the said Ed. M. West’s, personal account in the said bank the sum of fifty-two and 08/100 dollars as interest and profit for the use of the said sum of twenty-five thousand dollars, public money as aforesaid, by the said Anadarko State Bank for the month of April, 1913, which said sum of fifty-two and 08/100 dollars was kept and retained by him, the said Ed. M. West, and appropriated to his own use, contrary to,” etc.

It appears from the record that said information was duly filed by the county attorney of Caddo county in the district court of Caddo county, and that upon the application of the defendant for change of venue said cause was by the court duly transferred to Comanche county. It further appears that the defendant filed an application in the district court of Comanche county for leave of court to withdraw his plea of not guilty for the purpose of filing a demurrer to the information, and that the same was granted. The defendant then filed a demurrer on the ground that “said information fails to state facts to constitute a public offense,” which demurrer was heard, and was by the court sustained, “upon the ground that said information does not show on its face that the laws of the State of Oklahoma have been violated,” to which ruling of the court the state at the time excepted.

The prosecution in this case was based upon section 11, art. 10, of the State Constitution, providing as follows:

“The receiving, directly or indirectly, by any officer of the state, or of any county, city, or town, or member or officer of the Legislature, of any interest, profit, or perquisites, arising from the use or loan of public funds in his hands, or moneys to be raised through his agency for state, city, town, district, or county purposes shall be deemed a felony. Said offense shall be punished as may be prescribed by law, a part of which punishment shall be disqualification to hold office.”

And upon Penal Code, sec. 2581, Rev. Laws 1910, which provides that:

“Every public officer of the state or any county, city, town, or member or officer of the Legislature, and every-deputy or clerk of any such officer, and every other person receiving any money or other thing of value on behalf of or for account of this state or any department of the government of this state or any bureau or fund created by iaw and in which this state or the people thereof are directly or indirectly interested, who either:
“First. Appropriates to his own use, or to the use of any person not entitled thereto, without authority of law, any money or anything of value received by him as such officer, clerk or deputy, or otherwise, on behalf of this state, or any subdivision of this state, or the people thereof, or in which they are interested; or
“Second. Receives, directly or indirectly, any interest, profit or perquisites, arising 'from the use or loan of public funds in his hands or money to be raised through his agency for state, city, town, district or county purposes; or, * * *
“Fifth. Willfully omits or refuses to pay over to the state, city, town, district or county, or their officers or agents authorized by law to receive the same, any money or interest, profit or perquisites arising therefrom, received by him under any duty imposed by law so to pay-over the same, shall, upon conviction thereof, be deemed guilty of a felony, and shall be punished by a fine of not to exceed five hundred dollars, and by imprisonment in the penitentiary for a term of not less than one nor more than twenty years, and in addition thereto shall be disqualified to hold office in this state, and the court shall issue an order of such forfeiture, and should appeal be taken from the judgment of the court, the defendant may, in the discretion of the court, stand suspended from such office until such cause is finally determined.”

Counsel for the state insist that the court erred in sustaining the demurrer, because the information charges all the essential elements of the crime as defined by the foregoing provisions.

The argument urged by counsel for the defendant in error is as follows:

“From the foregoing provisions of the Constitution and statutes the conclusion is inevitable that if the money for the use of which the defendant received the interest was not the property of Caddo county, and therefore not public-funds, it was not a crime to receive the interest; and even if the funds did belong to the county, they must also be in the hands of the officer, in order that it be a crime to receive the interest. This is the express language of the Constitution and statute,' by which the condition is specifically attached that, to constitute a crime, the funds for the use of which interest is received by an officer must be public funds and must be in the hands of the officer at the time he receives the interest”—

and that the information is insufficient because:

“The defendant is not charged with having received more than is allowed him by law as his salary, including the interest he is alleged to have received,- nor is he charged with having taken one penny of the interest the county was entitled to under the law and the bond of the bank, or that the county was deprived of oné cent of its 21/2 per cent, interest on the daily balances in the bank during the time mentioned in the indictment. And it is not charged that there was any agreement between the bank and defendant that he should leave the money on deposit therein and as compensation therefor he should receive the amount alleged as interest.”

In our opinion the argument made is not well founded. Under the provisions of article 5, e. 16, Rev. Laws 1910, entitled “County Depositories,” the legal title to the deposits of the county treasurer is at all times in the county, and the same are public funds in his hands as such officer. Section 1540 provides that the county treasurer should deposit daily all the funds and money of whatsoever kind that shall come into his hands by virtue of his officé as such county treasurer, in his name as such county treasurer, in one or more responsible banks located in the county and designated by the board of county commissioners as the county depositories; that such bank shall pay interest on the average daily balances at the rate of 2V2 per cent, per annum, and shall credit the same monthly to the account of such treasurer; that the county commissioners shall take from each such bank a bond in the sum equal to the largest approximate amount that may be deposited in each, respectively, at any one time, the conditions of said bonds to be that such deposit shall be promptly paid on the check or draft of the treasurer of such county, and the bondsmen of said treasurer shall not be liable for such deposit. It is alleged in the information that the defendant, as county treasurer, made the deposit in his name and in his official capacity as such treasurer, and that he intentionally, unlawfully, willfully, feloniously, and corruptly received directly from said bank the sum of $52.08 as interest and profit for the use of said deposit.

In our opinion, the information contains every material allegation required by the rules of pleading, and by its allegations the defendant was clearly informed of the nature and the character of the offense charged against him, and we think the objections made aré destitute of merit.

For the reasons stated, the judgment of the district court of Comanche county, sustaining the demurrer to the information, is reversed.

ARMSTRONG and MATSON, JJ., concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    STATE v. ED. M. WEST.
    No. 2389.
    Opinion Filed April 20, 1918.
    (171 Pac. 1128.)
    OFFICERS — Misappropriation of Public Moneys — Sufficiency of Indictment. An indictment charging a county treasurer with receiving interest and profit arising from the use of public funds in his hands as such treasurer held sufficient, and that the court below erred in sustaining the defendant’s demurrer thereto.

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

    Ed. M. West was indicted for receiving interest and profits arising from the use of public funds in his hands as county treasurer, and, from a judgment sustaining a demurrer to the indictment, the State appeals.
    Reversed and remanded.

      S. P. Freeling, Atty. Gen., R. McMillan, Asst. Atty. Gen., and G. C. Wamsley, Co. Atty., for, the State. .

      A. J. Morris, for defendant in error.
   DOYLE, P. J.

In this case the state appeals from a judgment of the. district court of Comanche county sustaining a demurrer to an indictment, which, omitting merely formal parts, is as follows:

“That on the 6th day of December, in the year of our Lord one thousand nine hundred and eleven, at and within said county and state, and within the jurisdiction of said court, one Ed. M. West, then and there being, did then and there commit the crime of receiving interest and profit arising from the use of public money, and did then and there unlawfully, willfully, feloniously, and corruptly, he, the said Ed. M. West, then and there being the duly elected, acting, and qualified' county treasurer of the county of Caddo, State of Oklahoma, and having at all times during the month of October, 1911, and November, 1911, in his hands as such county treasurer, more than the sum of eleven thousand ($11,000.00) dollars, public money belonging to said Caddo county, and he, the said Ed. M. West, as such county treasurer, having kept on deposit of the said public money in the Andarko State Bank, a banking corporation located at Anadarko, Caddo county, Okla., for and during the month of October, 1911, money' to his credit as such county treasurer of the said public money belonging to Caddo county, the average daily balances of which amounted to the sum of $10,500.00, and for the month of November, 1911, the sum of $10,000.00, the said Anadarko State Bank then and there being one of the duly appointed, chosen, and qualified county depositories of said Caddo county in which money belonging to said Caddo county could be legally deposited by the said county treas,.urer, up to the sum of $25,000.00, received directly from the Anadarko State Bank by way of a credit placed to the personal account of him; the said Ed. M. West, the sum of $42.72, as interest, pay and profit for the use of the said moneys as aforesaid deposited in and used by the said bank as aforesaid and public money as aforesaid, for the months of October and November, 1911, which said sum of $42.72 received as aforesaid by him, the said Ed. ■M. West, was kept and retained by him, the said Ed. M. West, and appropriated to his own use and benefit, contrary .to,” etc.

It appears from the record that said indictment was duly presented by the grand jury in the district court of Caddo county, and that upon the application of the defendant for a change of venue said cause was by the court .duly transferred to Comanche county. It further appears that the defendant filed an application in the district court of Comanche county for leave of court to withdraw his plea of not guilty for the purpose of filing a demurrer to the indictment, and that the same was granted. Defendant then filed a demurrer, on the ground that “said indictment fails to state facts sufficient to constitute a public offense,” which demurrer was heard, and was by the court sustained, “upon the ground that said indictment does not show on its face that the laws of the State of Oklahoma have been violated,” to which ruling of the court the state at the time excepted, and to reverse the judgment the state appeals.

The question presented in this case is the same as in the case of State v. West, ante, p. 405, 171 Pac. 1127, this day handed down. For the reasons given in the opinion in that case; we are of the opinion that the indictment is sufficient in every way, and that the court erred in sustaining the defendant’s demurrer thereto.

The judgment of the district court of Comanche •county, sustaining the demurrer to the indictment, is ^therefore reversed.

ARMSTRONG and MATSON, JJ., concur.


author: MATSON, J.

text:
    A. G. PARKS v. STATE.
    No. A-2840.
    Opinion Filed April 20, 1918.
    (171 Pac. 1129.)

      1. ASSAULT AND BATTERY — Information—Variance—Acquittal. Where the information attempts to charge an assault with a dangerous weapon as provided in section 2344, Rev. Laws 1910, and the proof both on the part of the state and the defendant shows the commission of the felonious degree of assault and battery as defined by section 2336, 'or some lesser grade of assault and battery, there is a fatal variance between the allegations and the proof, and upon proper motion the court should advise the jury ■ to acquit upon the ground of variance, and direct a prosecution to be commenced for the higher grade of offense.
    2. INDICTMENT AND INFORMATION — Included Offenses. Where the information charges any grade of assault and battery, there may be a conviction of the same or any lesser grade of assault which is necessarily included in such a charge. But where the information merely charges a certain grade of assault, there may not be a conviction of that grade of assault and battery or of any lesser grade of assault and battery, because a charge of assault does not necessarily include a battery also.

      Appeal from. District Court, Lincoln County; Tom, D. McKeown, Assigned Judge..

    A. G. Parks was convicted of the crime of assault with a dangerous weapon and his punishment fixed at imprisonment in the penitentiary for a term of one year and one day, and he appeals.
    Reversed and remanded.

      Erwin & Erwin, for plaintiff in error. •

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

The defendant, Parks, was prosecuted in the district court of Lincoln county under an information charging (omitting the formal parts) as follows:

“That A. G. Parks * * * did then and there willfully, unlawfully, and feloniously and with force and violence and without justifiable or excusable cause make an assault in and upon the person of one Wm. Gearhart with a dangerous weapon, to wit, a revolving pistol, with the intent then and there of him, the said A. G. Parks, to do him, the said Wm. Gearhart, bodily harm.”

This information evidently attempted to charge the crime of assault with intent to do bodily harm with a dángerous weapon, as defined by the first part of section 2344, Rev. Laws 1910, which provides as follows:

“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.”

But as a charge under said section, we believe said information to have been defective, in that it failed to-allege the manner in which the saW “revolving pistol” was used upon prosecuting witness. Clark v. State, 6 Okla. Cr. 100, 116 Pac. 200.

But in view of the disposition herein made of this-case, it is not necessary to pass upon the question of whether or not the ■ information is sufficient to sustain a ■conviction under section 2344, supra. It will be noted that the offense defined by this section is limited to various kinds of assaults. The language of said section is not broad enough to include an assault and battery. In construing a statute, the terms of which are identical with section 2344, supra, the Supreme Court of North Dakota, in State v. Marcks, 3 N. D. 532, 58 N. W. 25, said the following:

“But it also clearly appears that the information embodies a charge against defendants of committing'another offense, i. e., the common-law offense of assault and battery. The last named offense is one which is independent of the statutory felony defined in section 6510, and does not constitute an element of that offense. ‘ It is true that the information charges, in' effect, that the assault and battery was committed with dangerous weapons, and with the .felonious intent- stated in the statute;-but, after striking out such averments as surplusage — and they are surplusage — there is still left a sufficient charge of the independent crime of assault and battery. It follows that the demurrer to the information, upon the ground that it stated more than one offense, was well taken, and it was therefore error to overrule the same. For this error the judgment of conviction must be reversed. The information being fatally defective, no conviction under it can be sustained. The question presented upon this branch of the demurrer arises upon section 7244, Comp. Laws, which reads: ‘The indictment must charge but one offense.’ We have quite recently had occasion to construe this statute. See State v. Smith, 2 N. D. 515, 52 N. W. 320. The case we are now considering is ruled by that cited. As prosecutions under the statute in question are frequent, we will, as a guide for future cases arising under it, dispose of one other assignment of error. As has been seen, the trial court instructed the jury, in effect, that if the evidence satisfied them beyond a reasonable doubt that the defendants were not guilty of the felonious charge, but were guilty of assault and battery, they could find defendants guilty of the offense of assault and battery. The jury returned a verdict for assault and battery. An exception to the instruction was saved, and a motion for a new trial was made. We think, however, that the point could have been as well presented on a motion- in arrest of judgment, which was also made. Code: Cr. Proc. sec. 425; Comp. Laws, sec. 7452. 'We are of the opinion that it was error to overrule the motion in arrest of judgment, not simply alone, and because the information was invalid, in that it charged two offenses, but upon, the further ground that no conviction for assault and. battery can be had under an information charging the particular felony created by section 6510 of the statute. We are clear that assault and battery is not a lower degree of the statutory crime, and that it is not an essential element in the greater offense. A simple assault is necessarily a part of the aggravated assault, but an assault and battery is not.. Under the statute of this state (section 7429, Comp. Laws), ‘the jury may find the defendant guilty of any offense the commission of which is necessarily included in that upon which he is charged in the indictment.’ State v. Johnson, 3 N. D. 150, 54 N. W. 547. Under the rule of exclusion, this section must be so construed as to exclude all offenses which are not necessarily-included in the commission of the higher offense charged! in the information or indictment. The offense described in section 6510 is one which can be, and often is, consummated without a • battery, and hence assault' and battery is an offense not necessarily included in the commission of the statutory felony. It matters not that in this case the information charges an assault and battery, when armed with dangerous weapons, and with intent to do bodily harm. These averments charge no offense other than simple assault and battery, which offense, as has been seen, is not an essential element, of the felony charged in the information. Turner v. Muskegon Circuit Judge, 88 Mich. 359, 50 N. W. 310; Territory v. Dooley, 4 Mont. 295, 1 Pac. 747; People v. Keefer, 18 Cal. 637; State v. White, 45 Iowa, 325.”

See, also, State v. Barnes, 29 N. D. 164, 150 N. W. 557, Ann. Cas. 1917C, 762; State v. Cotton, 36 S. D. 396, 155 N. W. 8.

It follows, a fortiori, that if simple assault and battery is not necessarily included within the terms of section 2344, supra, assaults and batteries of the higher grade defined by section 2336 are not included therein.

The first part of section 2344 makes it a. felony to commit an assault upon a person with any sharp or dangerous weapon with intent to do bodily harm, and without justifiable or excusable cause; the second part makes-it an offense to shoot at another, or to attempt to shoot ¿t another, with any kind of a firearm or air gun or other means whatever, with the same intent and without intent to kill and without justifiable or excusable cause. The language of said section, therefore, cannot with reason be construed as broad enough to include assaults and batteries made with sharp and dangerous weapons, or by firearms, but such offenses would be included within section 2336, Eev. Laws 1910, which provides as follows:

“Any person who intentionally and wrongfully * * * shoots at, or attempts to shoot at another, with any kind of firearm, air gun or other means whatever, with intent to kill any person, or . who commits any assault and battery upon another by means of any deadly weapon or by such other means or force as is likely to produce death or in resisting the execution of any legal process, is punishable by imprisonment in the penitentiary not exceeding ten years.”

The proof both on the part of the state and that of the defendant showed conclusively that the defendant shot at and hit the prosecuting witness with a bullet discharged from the revolving pistol which he then and there had and held .in his hands. The evidence in our opinion, therefore, discloses the commission of an offense of a higher grade than that attempted to be charged in the information, to wit, the offense defined in section 2336, supra. It is apparent, therefore, that the pleader should have charged the higher grade of offense defined by section 2336. See Russell v. State, 9 Okla. Cr. 692, 133 Pac. 475.

Section 2340, Rev. Laws 1910, defines simple assault as follows:

“An assault is any willful and unlawful attempt or offer with force or violence to do a corporal hurt to another.”

A battery is defined by section 2341, Rev. Laws 1910, as follows:

“A battery is any willful and unlawful use of force or violence upon the person of another.”

From such definitions, it is apparent that the assault ofttimes culminates in the battery. The attempt to injure is completed when the proof shows a battery. It follows, therefore, that. the crime of assault and battery necessarily includes the assault leading up to the battery, and if assault and battery is charged in the information and the proof shows that there was only an unlawful attempt to injure, then there may be a conviction of simple assault; but not so where the charge ih the information is merely that of an assault, because there can be no conviction of assault and battery where assault merely is charged, because' the battery is not necessarily included within such charge.

It is advisable and necessary, therefore, for the pleader, where there is evidence to sustain the battery charge, to plead same in the information. If such be done, then no difficulty will be experienced if the proof merely shows any lesser degree of assault, and where it is evident that one person shoots another with a revolving pistol, as in this case, the county attorney should draw his information in the first instance under section 2336, Rev. Laws 1910, and if that be done, then a conviction may be upheld under said section for any lesser and necessarily included assault, or assault and battery, as indicated in the opinion of this court in Russell v. State, supra.

At the close of the introduction of evidence on the part of the state, the defendant interposed what was styled a “demurrer to the evidence” on the grounds: “(1) That the evidence did not warrant the court in submitting the case to the jury for any offense charged in the information; and (2) for the reason that there was a fatal variance between the information and the proof on the part of the state.” We are of the opinion that the trial court, upon the presentation of said motion or demurrer, should have instructed the jury to return a verdict of “not guilty by reason of variance between charge and proof,” as provided in section 5921, Rev. Laws 1910, and should have ordered defendant held for trial under a new information, as provided by section 5930, Rev. Laws 1910.

The judgment of conviction is accordingly reversed, and the cause remanded for further proceedings in accordance with this opinion.

Mandate forthwith.

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


author: ARMSTRONG, J.

text:
    C. R. ESTES v. STATE.
    No. A-2863.
    Opinion Filed April 20, 1918.
    (171 Pac. 1131.)
    1. APPEAL AND ERROR — Weight and Sufficiency of Evidence-Accomplice’s Testimony — Corroboration. A verdict of conviction, based upon the testimony of accomplices, detailing at length the circumstances of the crime charged and supported by the testimony of numerous witnesses, clearly connecting the accused with the offense, is not contrary to the law and the evidence.
    2. TRIAL — Directed Acquittal. It is not error for the trial court to refuse to advise the jury to return a verdict of not guilty when there is any competent evidence tending reasonably to establish the crime charged.

      Appeal from District Court, Custer County; Thomas A. Edwards, Judge.

    C. R. Estes was convicted of burglary, and he appeals.
    Affirmed.

      M. L. Holcombe, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error was convicted at the April, 1916, term of the district court of Custer county on a charge of burglary, and his punishment fixed at imprisonment in the state penitentiary for a term of two years.

The only assignment of error is based upon the contention that the verdict is contrary to the law and the evidence.

The information charged the plaintiff in error with burglarizing a Chicago, Rock Island & Pacific box car at Clinton in Custer county, on the 17th day of March, 1916, and taking therefrom certain merchandise, including a considerable quantity of Cascade whisky.

An examination of the record discloses the fact that the three accomplices, one of whom is serving a term in the state penitentiary for his connection with this transaction, testified against this plaintiff in error and disclosed the facts and acts constituting the crime. In addition to the testimony given by the accomplices, there were a number of other witnesses who testified to incriminating facts amply sufficient to corroborate the accomplices’ testimony and to prove beyond a reasonable doubt the guilt of the defendant. The court correctly refused to sustain the demurrer to the evidence and to. advise the jury to return a verdict of not guilty, and was equally correct in refusing to set aside the verdict on the ground that the same was contrary to the law and the evidence. There is no law question raised.

The judgment of conviction is therefore in all things affirmed.

DOYLE, P. J., and MATSON, J., concur.


text:
    WILL HUGGINS v. STATE.
    No. 3167.
    Opinion Filed April 20, 1918.
    (171 Pac. 1126.)
    APPEAL AND ERROR — Abatement—Death of Party, In a criminal prosecution, the purpose of the proceeding being to punish the accused, the action must necessarily abate upon his death, and where it is made to appear that plaintiff in error has died, pending the determination of his appeal, the cause will be abated.

      Appeal from County Court, Wagoner County; . J. C. Pinson, Judge.

      Will Huggins was convicted of a violation • of the prohibitory law, and he appeals.
    Judgment abated bé-cause of the death of the plaintiff in error.

      Watts & Summers, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and C. A. Summers, Co. Atty., for the State.
   DOYLE, P. J.

The plaintiff in error, Will Huggins, was convicted in the county court of Wagoner county of a violation of the prohibitory law, and his punishment fixed at a fine of $250, and confinement for 60 days fn the county jail. From the judgment rendered on the verdict of the jury an appeal was perfected by filing in this court on October 11, 1917, a petition in error, with case-made.

Since the appeal was taken, and before the final submission of the cause, to wit, on April 15th, his counsel of record have filed a motion to abate the proceedings on the ground that the plaintiff in error, Will Huggins, has died; also an affidavit showing that the same was duly served on the Attorney General and county attorney of Wagoner county. In a criminal action the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death.

It is therefore considered and adjudged that the proceeding in the above-entitled cause, and especially under the judgment therein rendered, has abated, and that the county court of Wagoner county enter its appropriate order to that effect.

ARMSTRONG and MATSON, JJ., concur.


text:
    ROSWELL WESTBROOK v. STATE.
    No. A-2756.
    Opinion Filed April 30, 1918.
    (172 Pac. 464.)
    1. DEPOSITIONS — Nonresident Witnesses — Criminal Case. The right to take and use depositions of nonresident witnesses in behalf of the defendant in a criminal ease is statutory. Penal Code, art. 17. The statute regulates the practice in such cases, and its provisions must be substantially complied with.
    2. APPEAL AND ERROR — Depositions—Application for Commission — Continuance—Modification on Appeal. The information charged two defendants with the crime of murder. On the day they entered their pleas of not guilty, defendants served the statutory notice on the prosecuting attorney, and on the day named in the notice filed application for a commission to take' the deposition of a nonresident witness, which application was overruled. They also filed motion for continuance by reason of the absence of material witnesses, which motion was denied, and the case was called for trial the seventh day after their arraignment. A severance was demanded and granted. Held, that the court erred in overruling the application for a commission to take the deposition, and erred in denying the motion for continuance.
    Held, further, that the plaintiff in error upon his separate trial having failed to renew the application and motion, and his guilt having been established by facts admitted or so clearly established as to be beyond controversy, this court will not consider .the erroneous rulings such as demand a reversal of the conviction, but, in the exercise of its power to modify any judgment appealécl from by' reducing the sentence, the judgment and sentence of death is modified to that of imprisonment in the state penitentiary at hard labor for life, and as thus modified the judgment is affirmed.

      Appeal from District ■ Court, Latimer County; W. H. Brown, Judge.

    Roswell Westbrook was convicted of murder and adjudged to suffer death, and he appeals.
    Modified and affirmed.
    The plaintiff in error, Roswell Westbrook, and Jack McKennon were jointly informed against for the murder of Calvin Tomlinson, alleged to have been committed in Latimer county on the 7th day of February, 1916, by-shooting him with a pistol. When the cause was called for trial, a severance was demanded. The state elected to try Westbrook first. The jury returned a verdict finding the defendarit, Roswell Westbrook, guilty of murder, and fixing his punishment at death. From the judgment and sentence pronounced and entered in pursuance of the verdict, the defendant appeals.
    The evidence shows that Calvin Tomlinson, the deceased, 21 years of age, resided with his aged parents on a rented farm in the northeastern part of Latimer county; the place being about 14 miles southwest of the town of Sutter, sometimes called Calhoun, in Le Flore county. The family lived in a single-room house with a shed kitchen. On the night of the tragedy they went to bed about 7 o’clock; the old folks occupying a bed on one side of the fireplace, and the young man a bed on the other side. Shortly after they retired the front door was forced open by two men, who fired three or four shots at the young man, two of which struck him, from the effects of which he died the next evening. They then forced his father to give them his money, amounting to $60.
    Mary Tomlinson testified: That she was 69 years old. That when she went to bed that evening she threw a pine knot in the fireplace and it gave a good light. That two men forced the door and broke the latch. As they came in her son raised up, and they shot him. One of the men had a scarf around his face,, and the other one had a cape over his face. That she lit the lamp and grabbed her son’s shoe and hit the robber that shot him over the head' with it and knocked his mask off. He then hit her with his six-shooter and knocked her down, and her son said: “Come on, Mama! He will kill you, for he has shot me.” And she went out the back door with him. That the other robber held a six-shooter in the old man’s face, and said, “Give up your money.” That she with her son went to the smokehouse, and he said: “Mama, they have killed me. That was Jack McKennon. I saw him in Sutter Christmas.” That she knew McKennon and recognized him. When the robbers left, she took her son back into the house and put him in bed, and then knocked on the plow with a hammer and halloed.
    W. S. Tomlinson testified: That they went to bed about 7 o’clock, and shortly after the door of his house was forced open and two men came in. Their faces were covered, and they fired three or four shots. One of them held a pistol in his face and said, “Give up your-money!” and he gave them $60. That his son and his wife had left the room, and he ran out while the robbers were counting the money.
    The undisputed facts are that the defendant,. West-brook, lived at Sutter, and on the 7th day of February he borrowed a horse from Finis Herron, commonly called “Skin Herron,” and a saddle from W. J. Sterling, saying that he wanted to ride out to a sawmill. He was then carrying a big pistol stuck in the waistband of his pants. About the same time Jack McKennon went to Johnson & Embrey’s livery barn in Sutter and hired a sorrel blaze face pony to ride out into the country, saying that he preferred to ride his own saddle. He went to John Green's, about 300 yards from the livery bam, for his saddle. They met in the street in the west part of Sutter, near the home of Ben Priest, and from there rode out of town in a westerly direction. Westbrook had a package tied to the horn of his saddle.
    Jesse Johnson testified: That about noon, February 7th, Jack McKennon came into his livery barn and hired a sorrel bald-face pony to ride out into the country. He said he would use his own saddle. That McKennon’s saddle was in the bam the next morning. That the pony had crooked ankles, and his shoe tracks were deeper in the ground on the outside than on the inside.
    Frank Harris testified: That he lived about seven miles from Sutter, and about six miles from old man Tomlinson. That he was making rails the afternoon of the 7th of February, and saw 'two men on horses passing along the road at the foot of the mountain. That one was riding a sorrel blaze-face pony, and the other was riding a large dark brown horse, and they were going in the direction of old man Tomlinson’s. That it was then about 3 o’clock. That the next day he examined the tracks of the horses, which showed that not far from where he saw them they left the road and .turned off through a buckbush and brier thicket, and he found the same tracks in the road on the other side of his place, going the other way toward Sutter.
    Seven or eight farmer neighbors of Tomlinson testified : That they were at the Tomlinson place shortly after the shooting, and the next morning they made an examination of the surrounding country, and found .where the fence had been cut in a pasture near Tomlinson’s home, and they found tracks of a large horse and a pony. That they followed these tracks to within a mile or two of Sut-ter. When they reached Sutter that day, they took the blaze-face pony that was ridden by McKennon and Her-ron’s horse that was ridden by Westbrook out to the trail, and there compared the tracks they had followed and those made by the horse and pony, and found them to be identical.
    Charity Covey and her mother, Mrs. Bertha Priest, testified that on Sunday evening, February 6th, at their home in Sutter, Roswell Westbrook said that he was going to rob an old man of his money.
    Mrs. Bertha Priest testified: That about 1 o’clock bn February 7th Westbrook came to her house and asked, “Where is Charity?” and she told him over at McClain’s. “That he looked like he had been drinking,” and she said, “What i!s the matter with you?” and he said: “Oh, hush, kid. We have got to make some money. We are going to have $900, and if we can’t get $900 we will take $300, or kill somebody.” And she said, “You will get into trouble,” and he said, “Ybu don’t know what you are talking about.” That her husband was working at the wood pile, and about that time Jack McKennon rode along on a sorrel blaze face pony, and as he passed the house West-brook got on his horse and they rode off together.
    Ben Priest testified that he noticed Westbrook had a pistol stuck in the waistband of hite pants. Frank Taylor testified: That he boarded at Bidwell’s boarding house in Sutter; and Westbrook had been boarding there about three weeks before the homicide, and they slept in the same room; that there were three beds in the room, George Williams and Bidwell’s deaf and dumb boy occupied one of the beds, and Roswell Westbrook, another, and witness the other; that he went to bed on the night of February 7th about 8 o’clock and was up during the night between 2 and 3 o’clock, and Westbrook did not occupy hi's bed that night.
    G. B. Kimbrough testified that he lived near Norris, a town near the old Walls post office in Le Flore county; that his home was about two miles from old man Tomlin-son’s place; that he was there about midnight after Calvin Tomlinson was shot, and he heard the boy say, “I am killed,” and he asked him if he knew who did it, and he said, “There was two men in the house, and one of them was Jack McKennon”; that the doctors were there at the time.
    Several other witnesses testified that they heard him say before he died that one of the men was Jack Mc-Kennon.
    It appears that Westbrook was arrested the next day, and Jack McKennon was arrested at Ft. Smith on February 9th. That on the night of February 10th they were placed in the same cell where a dictaphone had been adjusted between the cots on which the prisoners were to sleep. The wires from the dictaphone connected with the sheriff’s office, about a hundred feet away from the cell. The prisoners’ conversation was taken by the operators, and their testimony shows that the prisoners talked about the way the homicide was committed, and that the officers said the neighbors tracked their horses to the Tomlinson place and from there back to the town of Sutter. That Westbrook said to McKennon:
    “One of them got killed; maybe both of them. I shot through that wall. These people didn’t have any money in the house. I hit the old lady. I got him the first shot, I think, maybe, if I didn’t the second. If we don’t stay together we are all in. I promise you one thing, the old man won’t recognize anybody. I heard the old lady would swear that one of us shot at the old man too. You acted too damn fast. When they said, What do you want?’ I said, We want your money, that’s all.’ ”
    For the Defense.
    Owen Herron. testified that he lived at Calhoun and had known Roswell Westbrook for about two years, during which tiim.e he lived in Sutter; that Ben Priest lived about a half mile west of Sutter, and on Sunday • evening, February 6th, he went there with Westbrook, and they stayed there about an hour; that he did not hear Westbrook say anything there that night about robbing, anybody. On cross-examination he stated that Jack McKennon often stayed at his brother Finis Herron’s house.
    Finis Herron testified that about 1 o’clock on the 7th day of February he loaned Roswell Westbrook a large dark brown horse; that the next time he saw the horse was that night about 8 o’clock, at which time the horse was loose i'n his yard. On cross-examination he stated that he was commonly called “Skinny Herron”; that West-brook told him that he.wanted the horse to go out in the country and get something to drink; that Jack McKennon had been staying at his place for some time before that; and that he himself had worked in a sawmill for Jack McKennon off and on for five or six years.
    Henry Kennedy testified that he saw Jack McKennon on the 7th day of February, about 4 o’clock in the afternoon, and another fellow with him, on the road about three miles from Sutter, and they were going towards Sutter.
    Mrs. Molly Bidwell testified that with her husband, George Bidwell, she ran a boarding house in Sutter; that Frank Taylor was a boarder, but he did not stay in the house on the night of the 7th day of February; that Roswell Westbrook boarded with, them, but she could not say whether or not he stayed at her place that night. On cross-examination she stated that Roswell Westbrook’s wife lived in the same neighborhood, but they had separated ; that there were three beds in the room where Frank Taylor slept, one for George Williams and her son Johnny, one for Roswell Westbrook, and the other for Frank Taylor; that she did not see Roswell Westbrook from dinner time on the 7th until he came to breakfast on the morning of February 8th.
    Johnny Bidwell, the deaf and dumb boy, testified he slept with George Williams the night of February 7th in one bed, and that Roswell Westbrook went to bed about 9 o’clock; and that he saw him in the room the next morning about 5 o’clock and Roswell Westbrook slept there that night.
    George Williams testified that he worked at the Bid- ' well boarding house and slept with Johnny Bidwell the night of February 7th, but did not see Frank Taylor in the room there that night; that when he woke up the next morning Roswell Westbrook was lying there on his bed, but he did not hear Westbrook come into the room that night.
    Sim Hamlin testified that he lived at Calhoun and saw Jack MeKennon on the street near Brown’s drug store about 4 o’clock in the evening of February 7th, and spoke to him.
    The defendant, Westbrook, did not testify as a witness, neither did his codefendant, Jack MeKennon, who it appears entered a plea of guilty and was sentenced to life imprisonment in the penitentiary.

      Neal <& Fleming and J. W. Calahan, for plaintiff in error.

      S. P. Freeling, Atty. Gen., R. McMillan, Asst. Atty. Gen., Jones & Lester, and H. T. Church, Co. Atty., for the State.
   DOYLE, P. J.

(after stating the facts as above). The plaintiff in error, Roswell Westbrook, and Jack Mc-Kennon were jointly charged by information duly filed in the district court of Latimer county on February 28, 1916, with the murder of Calyin Tomlinson, alleged to have been committed in said county on the 7th day of February, 1916, by shooting him with a pistol. Upon their arraignment on the 6th day of March, they took 24 hours to plead. On the 7th day of March, they filed a general demurrer to the information, which was overruled. Thereupon the defendants entered pleas of not guilty, and at that time the court fixed the time for trial for March 14, 1916. On the 13th day of March, the defendants filed in open court their application for a commission to take the deposition of one Bill Cole, a nonresident of the átate of Oklahoma. Their joint affidavit filed in support of said application contained all the formal allegations required by law, and concludes as follows:

“That Bill Cole is a material witness in their defense, without whom they cannot safely go to trial; that said witness, Bill Cole, saw this petitioner in the town of Calhoun, Le Flore county, about 16 miles from the place of the alleged killing, about 7 o’clock on the 7th day of February, 1916, and remained with the defendant, Jack Mc-Kennon, from about 7 o’clock p. m., on said day, all night in Calhoun. And further defendants say that the testimony of said witness is true and material in this cause, since it is alleged in the information that the defendants acting conjointly and together committed the crime of murder upon the person of Calvin Tomlinson in Latimer county, Okla., on said date, and the state relies upon proving that said crime was committed between 7 and 8 o’clock that evening. Affiants further say that said witness is a resident of the State of Arkansas and resides at No. IOO8V2 on Gar. Ave. Street, in the city of Ft. Smith, Ark.
“[Signed] JACK McKennon,
“Roswell Westbrook.”

The record shows, on the same day, the following proceedings:

“The Court. I understand from you, Mr. Church, that last Tuesday, which was the 7th day of this month, after Mr. Neal had served notice on you of his intention to make application for a commission to take depositions, that you at that time told him that you would waive the statutory notice to take the depositions, and that you would go with him at any time to take the depositions of this .witness.
“Mr. Church (Prosecuting Attorney) : Yes, sir; your honor. I told him that after he served the notice on me.
“The Court: Wasn’t it understood between you and Mr. Neal that all process was to be taken out for tomorrow, and every witness in this case was subpoenaed to be here tomorrow by the state and the defense?
“Mr. Neal: Now, after this notice had been served upon Mr. Church, he came , to me and said, ‘Neal, I will waive that notice,’ and I says: T don’t ask you to waive anything. We want those depositions taken, and we want it done legally.’-
“The Court: Application is denied.
“Mr. Neal: I would like for the court to state the ground of his denial in the order.
“The Court: I have a number of reasons for denying the application, and I don’t think it is necessary to state them.
“Mr. Neal. We save an exception to the ruling of the court.”

Thereafter, on the 15th day of March, the case was called for trial, and the defendants filed their motion for continuance. Their joint affidavit for continuance contained all the formal allegations required by law, and among others the following statements:

That T. L. Herron is a resident of Calhoun, Le Flore county. That on the 6th day of March, 1916, these defendants by their attorneys of record, Neal & Fleming,' filed with the clerk of the district court of Latimer county a praecipe that a subpoena issue for said witness, and on the same day procured such subpoena, indorsed by the judge of the district court for service in Le Flore county to be issued. That the sheriff of Le Flore county made return of said subpoena that said T. L. Herron was not found “in my county.”- That the defendants further- exercised diligence by procuring Owen Herron, a son of T. L. Herron, to go to Ft. Smith, Ark., where the said T. L. Herron was temporarily residing on account of his health and undertook to have the said T. L. Herron to come to Wilburton to attend the trial of this case. That said T. L. Herron is not present, but is confined to his room in the city of Ft: Smith, suffering from inflammation of the bowels, as is shown by the certificate-of T. E. Jeffery, a regular practicing physician of the city of Ft. Smith, which certificate is attached hereto and made a part hereof. That said witness would testify, if present, as follows: That on the evening and night of February 7, 1916, he was in the town of Calhoun, Okla., and saw the defendants Jack McKennon and Roswell Westbrook about 7 o’clock p. m., on said day, and remained with the defendant Jack McKennon from about 7 p. m. in the evening until some time the next morning, sleeping in the same bed with him the night of the 7th, and knows and will testify that the defendants were not at the home of W. S. Tomlinson in Latimer county between 7 and 8 o’clock on the night of the- 7th day of February, 1918.

That there is absent from attendance of the court one-Mrs. Covey, who is a resident of Calhoun, and for whose attendance a subpoena duly issued indorsed by the district judge, commanding the attendance of said witness, and. the sheriff of Le Flore county served said subpoena upon the said Mrs. Covey by delivering a copy thereof to her in Calhoun on the 7th day-of March, 1916, a copy of which subpoena and the return thereto is hereto attached. That said witness, if present, would testify: That she was present all the time during the conversation as is claimed by the state between Charity Covey and Roswell West-brook, and that Roswell Westbrook at no time in her presence told Charity Covey that he (Westbrook) and the defendant Jack McKennon intended to rob any person. That said witness is sick and unable to attend the trial of this case, as is shown by certificate of physician hereto attached. That the testimony of said witness is true, and that defendants can prove these facts by no other witness in their power to procure, and that there is every reason to believe that the testimony of said witness may be procured by the next term of this court if this case is continued.

On the same day witnesses were called and testified in support of and against said motion for continuance.

The court in overruling the motion in part said:

“It seems, from the undisputed evidence in this case, that this woman (Mrs. Covey) has been suffering from pellagra for several months; and that it was known at least to one of the defendants that she was confined to her bed. When he was arraigned in this case, he must have known at that time that it was unreasonable to think that she would be here; that is, he couldn’t reasonably expect that she would be here at this trial. If he was inter•ested in getting her testimony before this court, it was his duty at that time to make an application for a commission to take depositions, and try to secure this woman’s deposition, if she was able to give her testimony. There is no diligence shown to get this woman’s testimony before this court at this time. Taking all things into consideration in this case and all of the evidence that has been introduced before me in the hearing, I will overrule the motion for continuance.” (Exceptions allowed.)

Thereupon the defendants each demanded a severance, which is by the court granted, and the state elects to try the defendant Westbrook at this time.

On March 23, 1916, the jury returned their verdict finding the defendant Roswell Westbrook guilty of murder and assessing his punishment at death.

The petition alleges 54 assignments of error, but the foregoing transcript of the record presents the only errors assigned which we deem of sufficient merit to require discussion.

Counsel for the defendant insist “that the court erred in refusing, to grant to the defendant a commission to take depositions.”

The statutory provisions for the taking of depositions by the defendant in a criminal case are, in part, as follows:

Section 6036, Rev. Laws 1910: “When an issue of fact is joined upon an indictment or -information, the defendant may have any material -Witness residing out of the state examined in his behalf as prescribed in this article and not otherwise.

“Sec. 6037. When a material witness for the defendant resides out of the state the defendant may apply for an order that the witness be examined on a commission to be issued under the seal of the court, and the signature of the clerk, directed to some party designated as commissioner, authorizing him to examine the witness upon oath or interrogatories annexed thereto, and to take and. certify the deposition of the witness and return it acéord-ing to the instructions gi'ven with the commission.

“Sec. 6038. Application must be made upon affidavit-stating: First. The nature of the offense charged. Second. The state of the proceedings in the action and that an issue of the fact has been joined therein. Third, The name of. the witness and that his testimony i's material to the defense of the action. Fourth. That the witness resides out of the state.

“Sec. 6039. The application may be made to the court or judge himself, and must be upon five days’ notice to the county attorney.

“Sec. 6040. If the court or the judge to whom the application is made, is satisfied of the truth of the facts-stated and that the examination of the witness is necessary to the attainment of justice, an order must be made that a commission be issued to take his testimony, and the court or judge may insert in the order a direction that the trial be stayed for a specified time reasonably sufficient for the execution of the commission and return' thereof, or the case may be continued.”

Counsel for the state contend that under section 6040, above quoted, the issuance of a commission to take the deposition of a nonresident witness rests in the discretion of the trial court or judge, and that no abuse of discretion appears .in this case.

From the record it appears that the defendants, on the day they .entered their pleas, served notice on the county attorney that they would make application to take the deposition of a nonresident witness, which application was supported by their affidavits, averring the facts required to be shown under the statute. The county attorney offered to waive notice and the issuance of a commission, and offered to appear at any time to take the deposition of said witness. Counsel for the defendants, very properly we think, refused to accept this proposition. There is no inherent power in a court of record, to issue commissions • to take depositions to be read in behalf of a defendant in a criminal case. The right to take and use the deposition of a nonresident witness in behalf of a defendant in a criminal case is statutory, and the procedure prescribed for taking and returning the same must be substantially complied with in order to make such deposition competent and admissible. We think the record shows a manifest abuse of judicial discretion in overruling the application of the defendants for a commission to take the deposition. In cases of this kind, where the defendant is on trial for his life, he should have the advantage of every right which the law secures to him upon his trial, and in a capital case, when notice is given and a proper affidavit for the taking of a deposition is made by the defendant and filed as soon as issue is joined by entering plea, it would be an abuse of discretion to deny an application properly made.

However, we think it is apparent from the record in this case that the errors complained of are not such as demand a reversal of the conviction. The application for the commission to take the depositions was made before the severance was demanded, and it appears that the testimony of said nonresident witnesses was material only for the defendant McKennon.

It is also insisted that the court erred in overruling the motion by the defendants for a continuance. We are inclined to think that, if counsel for the state refused to consent to having the facts alleged in the affidavit for a continuance read and considered as the depositions of the absent witnesses, the trial court in the exercise of a sound judicial discretion should have postponed the. trial, until a later day in the term in order to give the defendants the necessary time to take the depositions of the absent witnesses. It appears that, after the severance was granted, this defendant did not renew the application and motion made jointly, and there was testimony upon the hearing tending to show that the witnesses were absent by the procurement and consent of the defendants. However, technical objections should not ordinarily prevent the granting of a motion for a continuance in a capital case, if necessary to a proper presentation of the defendant’s case. It is the right of every person accused of crime to have a fair trial and compulsory process to compel the attendance of his witnesses, and this involves as a matter of course the time reasonably necessary to prepare for trial. The statute prescribes that civil cases in the district court shall not stand for trial until ten days after the issues are made up and no felony case should be set over the objection of the defendant within ten days after his plea is entered. Under the provisions of our Procedure Criminal (section 6003, Rev. Laws 1910), this court, in the furtherance of justice, has the power and authority to modify any judgment appealed from by reducing the sentence. However, that power should not be exercised unless it is apparent that an injustice has been done. Owen v. State, 13 Okla. Cr. 195, 163 Pac. 548; Fritz v. State, 8 Okla. Cr. 342, 128 Pac. 170.

To reverse the judgment of conviction in this case on the facts which are either admitted or so clearly established as to be beyond controversy would be not only to delay justice, but to give no force to the statute which prescribes that such judgments may be reversed only when upon the whole record the court is satisfied that the substantial rights of the defendant have been prejudiced. However, if the guilt of the defendant was in any way left in doubt, or if we could believe that the defendant was prejudiced, we should feel it our duty to give him a new trial.

For the reasons stated, and taking into consideration the fact that the defendant McKennon, who it appears was the arch-conspirator, was, upon the recommendation of the prosecuting attorney, sentenced to life imprisonment upon his plea of guilty, we are of the opinion that in the furtherance of justice the judgment and sentence in this case should be modified to imprisonment for life at hard labor.

The judgment of the district court of Latimer county herein will be modified to the extent that the sentence will be changed from the infliction of the penalty of death to that of imprisonment in the state penitentiary at hard labor for life, and as thus modified the judgment is affirmed.

ARMSTRONG and MATSON, JJ., concur.


text:
    C. L. HARKINS v. STATE.
    No. A-2792.
    Opinion Filed May 4, 1918.
    (172 Pac. 469.)
    1. TRIAL — Discretion of Trial Court — Physical Examination. In a case of statutory rape in the first degree, where the trial court made an order that the prosecutrix submit to a physical examination to be made by two physicians selected by the defendant and at his expense, it is not a manifest abuse of discretion to refuse to modify said order to provide that said examination should be made at the expense of the county; it being shown that a physical examination of the prosecutrix had already been made by two reputable physicians at the expense of the county at the request of the county attorney, the necessity of a second examination at the expense of the county not having been made apparent. Walker v. State, 12 Okla. Or. 179, 153 Pac. 209, distinguished.
    2. APPEAL AND ERROR — Improper Cross-Examination — Prejudicial Error. The-fact that the county attorney, on cross-examination of the defendant, asked a few questions which called for incompetent answers, does not of itself establish prejudicial error.
    .3. SAME — Motion for New Trial — Denial—Reversa!. A motion for a new trial on the ground that the county attorney asked the defendant questions calling for incompétent answers was properly overruled, where it is not clear that prejudice resulted to the defendant therefrom, and the trial judge-promptly sustained objections to such questions. This court would not be authorized to reverse a judgment of conviction solely on this ground, where evidence of guilt is clear and convincing, and the punishment was not prescribed by the jury.

      Appeal from District Court, Rogers Coutvty '; W. J. Campbell, Judge.

    C. L. Harkins was convicted of rápe ifn the first degree, and sentenced to serve a term of 50 years in the penitentiary, and he appealed.
    Affirmed.
    This alleged offense occurred in Nowata county, Okla., on the 3d day of September, 1915, at a public picnic held near the post office of Childers in that county. The defendant was a married man past 50 years of age. The prosecuting witness was a girl between the ages of 12 and 13 at the time.
    The prosecuting witness had been staying most of the time during the three years immediately preceding this occurrence at the rooming house of the defendant and his wife in the city of Nowata, known as the Valley House. Her mother, a widow, had also been staying at that place until her marriage to a man by the name of Lockhart, which occurred a few months before this picnic. When the mother of the prosecutrix married Lockhart, .they moved to the city of Claremore in Rogers county, adjoining Nowata county, and it had been the practice of the prosecutrix, at the request of the wife of the defendant, after her removal to Claremore, to make visits with defendant’s family at the Valley House in Nowata. The relationship of the defendant and this little girl grew to be intimate. She called him “Uncle Lum,” and he displayed apparent affection toward her, and frequently was seen with her upon his lap.
    A few days before this picnic, Mrs; Harkins wrote to the prosecutrix and asked her to make her a little visit. She came from -Claremore to Nowata on the last Saturday in August,' 1915, and on the Wednesday following was taken by the defendant to the scene of the picnic some ten or twelve miles northeast of Nowata. They rode out on an ordinary farm wagon loaded with coal, and on the way out stopped at a country grocery store to get some provisions. Both prosecutrix and thé defendant got out of the wagon at this store, and the manner in which the defendant handled the prosecutrix when he put her back into the wagon on that occasion was so vulgar as to attract the attention of the storekeeper.
    After their arrival at the picnic grounds on Wednesday afternoon, arrangements were made with a man and his wife by the name of Crockett to let the little girl sleep in their tent, which was some ten or 20 feet away from the tent in which defendant slept. The defendant was operating a merry-go-round, and permitted the prosecutrix to ride on the merry-go-round, and also to help him sell tickets. The prosecutrix was not in very good health at that time, and apparently had been suffering from chills. The defendant took along some medicine to doctor her with, and gave her several doses of this medicine during the time they were at the picnic. Everything seemed to run along all right until the afternoon of Saturday, the 3d day of September, when the prosecutrix was seen to leave the picnic grounds going in a southerly direction, to. go upon the public road running east and west, and to turn east ■ on said road. A short time thereafter the defendant was seen to do the same thing. In about three-quarters of an hour they were seen to return from that direction together. The prosecutrix was walking peculiarly and crying, and the defendant was walking along beside her and apparently trying to get her to quit crying. The state produced five or six witnesses who testified to seeing these parties leave the picnic grounds, and to return thereto. The prosecu-trix testifies tfiat the defendant took her a short distance from the grounds into some underbrush and high weeds, - and there asked her to “be his little girl,” and accomplished an act of sexual intercourse with her. The defendant denies absolutely that he left the grounds with her, or accomplished, any such act.

      The prosecutrix stayed upon the picnic grounds until Sunday evening, when she was taken into the city of Nowata after having complained to certain ladies on the grounds that she was sore and stiff. Her conduct and appearance .aroused the suspicion of these ladies and caused the subsequent investigation by the prosecuting officers of that county. On Monday morning early a physical examination of the condition of the prosecutrix was made by the city physician of the city of Nowata and by the health officer of Nowata county, commonly called the county physician. As a result of such investigation, and from the facts above detailed, this prosecution was lodged. The investigation disclosed that there was swelling in the private parts of the prose-cutrix, abrasions of the skin at the opening of the vagina, and that the hymen was completely ruptured, and that there was some indication of recent deposits of blood in the private parts; that the prosecutrix was very sore, and that her abdomen was considerably distended; that it was such a condition as would occur after the perpetration of an act of sexual intercourse.
    After absolutely denying any unlawful relationship between himself and the prosecutrix, the defendant introduced several witnesses who testified that the prosecu-trix was seen frequently in the company of two boys about 13 or 14 years of age during the time she wad out at the picnic. Both prosecutrix and each of these boys denied their ever having any illicit relationship with prose-cutrix. Defendant also testified that the prosecutrix fell off one of the horses on the merry-go-round in such a manner as likely to injure herself in the region of her private parts, but the prosecutrix testified that while she did slide off the side of the horse, she was not injured or ruptured ‘ in any way by such action, and that the condition she complained of was caused wholly by the illicit relation between herself and the defendant.
    A change of venue was granted defendant from Nowata to Rogers county, and there the trial occurred in January, 1916, resulting in the jury finding the defendant guilty of rape in the first degree, but failing to prescribe the punishment. Whereupon the court sentenced defendant to serve a term of 50 years in the state peni- ■ tentiary, and from this judgment of' conviction he has appealed and asks this court to reverse same upon two grounds of alleged error.

      Charlton & Farrell and E. P. Hill, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

(after stating the facts as above.) The first ground of error relied upon is the alleged refusal of the court" to appoint two physicians at the expense of Nowata county to make a physical examination of the prosecuting witness. The entire record upon this matter is as follows:

“By the Court: In this case the defendant asks the court to appoint two physicians to make an examination of the prosecuting witness, Inez Greenleaf, or the person upon whom it is alleged this rape was committed. It appears from the information in this case that the state has indorsed upon the information the names of two physicians, who are reputable physicians, and who, as the record of the preliminary examination discloses made an examination of Inez Greenleaf immediately after the time of the alleged commission of the crime, and that these witnesses are in attendance as witnesses for the ,state. The court now is of the opinion that the defendant .should have the right to have two physicians to make such examination as they may deem necessary in order to qualify themselves properly to give this testimony. In this •case, on behalf of the defendant, the court now asks the •defendant to name the two physicians whom he desires to have.
“By Counsel for the State: We would like to have •our physicians present at the same time.
“By the Court: All right; the examination to be made by the two physicians in the presence of the physicians in attendance upon court as witnesses for the .state; and at such examination, the county attorney or some one representing the county attorney and the defendant's counsel may have and are given by the court the right to be present at such examination. (Counsel for defendant now indicate to the court whom they desire to have appointed.)
“By the Court: At the request of the defendant and upon his selection the court appoints Drs. J. F. Means and W. F. Hayes. * * - *
“Inez Greenleaf, of lawful age, being first duly sworn, the truth to testify, the whole truth, and nothing but the truth, on examination testified as follows:
“Direct Examination: Q. What is your name?”
“By Counsel for the Defendant: Now, if the court please, the defendant objects to the testimony offered by this witness until after the examination has been had by the physicians as ordered yesterday.
“By the County Attorney: If this is going to be argued we ask that (interrupted by counsel for defendant)—
“By Counsel for the Defendant: It is not going to be argued.
“By the Court: The court, in its discretion, now rules that the examination which was asked for yesterday may be had as ordered, but not until after the direct examination of the witness in question. Immediately after the direct examination, if counsel for defendant desires,, the examination asked for may be had, or the defendant may cross-examine the witness in question, and then the examination may be had which was ordered yesterday, and after the examination any further cross-examination which may be deemed necessary may be had by the defendant, but the examination ordered yesterday is by the court not allowed until after the direct examination of the witness now on the stand and the objection of the defendant is overruled. .
“By counsel for the Defendant: To which we except. * * *
“By the Court: Any further testimony on behalf of the state.
“By the County Attorney: If the court please, at this-time the state rests.
“By Counsel for the Defendant. The court please, before making the opening statement, there is one matter I desire to take up — that is, concerning the order that was made for the appointment of two physicians to make this examination. Your honor made that (interrupted by the county attorney) —
“By the County Attorney: We would like the jury excused if you are going to take that up at all.
“By the Court: There is nothing in this matter that the jury cannot hear.
“By - Counsel for the Defendant: Nothing in the world. Everything that has been done has been done in the presence of the jury.
“By the Court: Go ahead.
“By Counsel for the Defendant: Here is the situation. That order was made that this examination be made at the expense of the defendant. Now I have talked with the defendant and with the physicians that were put in the order, and it is impossible for Mr. Harkins to raise the money to pay for this examination. He simply cannot •do it, and we would like to ask, in view of that fact, and I will file an affidavit and put it in the record if the court wants me to, that this examination be made at the expense of Nowata county. Of course I know you want to keep expenses down all you can, but at the same time the defendant would have been entitled to file an affidavit and ask attendance of three witnesses at the expense of the county. We did not do that. This would not be a great expense to the county, and yet an expense of $40 or *$50 is something the defendant cannot pay at this time, and we will make an affidavit to 'that effect. We would -like to have the order made, ‘at the expense of the county,’ and we feel as though we would be entitled to it and ought to have it. Unless you do, it will be impossible for us to have this examination.
“By the Court: The court cannot modify that order. There is no provision of law for the state paying for an examination of this kind. The court has given the defendant permission and has made an order that the defendant may have the right to have two physicians make an examination of the girl, and that order would be made in favor of the state as well as the defendant. If the state didn’t have a witness who had already made an examination, the court could not change the order to require this examination to be paid for by the state.
“By Counsel for the Defendant: Well, of course I do not mean to argue the point with the court, but it seems to me in a case of this kind it might be amended. Of course, I leave the matter with the court. Does the court overrule (interrupted by the court) —
“By the Court: I overrule the request for a modification of the order.
' “By counsel for Defendant: Give us an exception.
“Thereupon counsel for the defendant starts his ■opening statement to the jury on behalf of the defendant:
“By Counsel for the Defendant: May it please the court, and you gentlemen of the jury:
“By the Court: Just a minute. Let the record further show the defendant is now offered an opportunity to have any reputable physician that he may desire to make an examination of the prosecuting witness, Inez Greenleaf, with a view of preparing himself to testify' in this case.
“By Counsel for the Defendant: Let the record' .show, if the court has no objection, that the defendant, does not accept .that opportunity because of the fact that, he is unable to pay the expenses of the examination.”

In Walker v. State, 12 Okla. Cr. 179, 153 Pac. 209,. in an opinion rendered by this court on the 11th day of December, 1915, it was held to be manifest abuse of discretion on the part of the trial court to refuse to make; an order for a physical examination of the prosecutrix by a competent physician upon proper demand by the defendant in a case of rape of this character. The de-1 cisión of the court in that case was based upon the peculiar circumstances of the case, and the fact that the proof' of the corpus delicti in that case was of a very doubtful and inconclusive character. However, it was established' to be a matter within the discretion of the trial court, and' a reversal, therefore, upon this ground can only be had' where there is shown to be a manifest abuse of discretion. The facts upon which the court reversed the Walker Case-are as follows:

“It appears from the record that when the case was-called for trial- the defendant demanded that a physical examination of the prosecutrix by a competent physician should be made, which demand was denied by the court,, and exception allowed. It will be seen from this statement of the testimony that the evidence adduced to establish the corpus delicti is of a very doubtful and inconclusive character; it consists exclusively of monosyllable answers by the child to leading and suggestive questions propounded by the county attorney, and on her cross-examination she unhesitatingly states that her uncle Oliver Walker promised to buy her some new shoes and her uncle Billy Brady promised to buy her a new dress if she would tell this story to the grand jury, and that before the trial they told her again they would get her a new dress and shoes if she would tell this story. In view of the unsatisfactory character of the testimony of the child witness and the fact that there is a direct conflict in her testimony and that of the only other witness produced by the state we think that the .court erred in refusing the defendant’s demand that a physical examination of the child be made by a competent physician. While ‘any sexual penetration, however slight, is sufficient to complete the crime’ (section 2416, Rev. Laws 1910), there must be proof of some degree of entrance of the fema’e organ, and the practice seems to be not to permit a conviction in those cases in which it is alleged violence was done, without medical proof of the fact, whenever such proof is attainable. If the private parts of the defendant entered those of the child, then only-seven years of age, as the testimony of the state tends to show, the marks of penetration would be permanent and would be the best evidence of tlie actual- commission of the crime charged.”

How different are the facts of that case from the facts in this. In that case the state produced no physician who had made a physical examination of the prose-cutrix. • In this case a physical examination was had within 48 hours of the time of the commission of the alleged offense by two reputable physicians of Nowata county in the presence of three women, and the examination thus had .clearly and convincingly corroborated the testimony of the prosecutrix as to the commission of the offense.

The prosecutrix in this case is a girl 12 years of age, and her answers show her to be of unusual intelligence for that age, while in the Walker Case the prosecutrix was at the time of testifying some three years younger and of a lesser dfegree of intelligence. In this case there was no refusal to make an order that the prosecutrix be examined, although two reputable physicians had theretofore examined her, but the error complained of is that the court refused to allow such an examination to be made at the expense of Nowata county. In this ruling we think the trial court did not abuse its discretion. It was known to the court at that time that an examination had already been made by two reputable physicians at 'the expense of Nowata county, and even admitting that the defendant was unable to pay for another examination, there are no facts shown in this record indicating any such examination was necessary, or that the result of such an examination would be in any way different from that obtained by the 'two physicians who had already testified. It is our opinion, therefore, that this assignment of error is without merit.

Among other grounds assigned for a new trial by the defendant was the misconduct of the county attorney in asking defendant improper questions which tended to bring to the attention of the juiy matters which were collateral and not proper for their consideration. An examination of the record discloses that the trial court very promptly sustained objections to the questions asked, but it is no doubt true that persistence of the county attorney or other prosecuting officer in asking improper questions, where it is clear that the purpose is to prejudice the minds of the jury by suggesting improper matter for their consideration, may amount to such misconduct as to require the granting of a new trial, and in some cases judgments of conviction have been reversed by this court solely on account of such misconduct. Pickrell v. State, 5 Okla. Cr. 391, 116 Pac. 957; Watson v. State, 7 Okla. Cr. 590, 124 Pac. 1101; Rogers v. State, 8 Okla. Cr. 226, 127 Pac. 365; Scott et ux. v. State, 13 Okla. Cr. 225, 163 Pac. 553, and others.

But it is equally true that the control of examination of witnesses is under the direction of the trial court, and before this court would be authorized to reverse a judgment of conviction solely upon the ground that there had been alleged misconduct on the part of the prosecuting attorney in examining witnesses, where the evidence is as ' clear and convincing as in this case, there must have been such a flagrant abuse of discretion on the part of the trial judge in overruling motion for a new trial on that ground as to have amounted clearly to the prejudice of the substantial rights of the defendant. We are not satisfied or convinced after an examination of the record in this case that any such prejudice resulted to the defend? ant. The trial judge ruled promptly and correctly when objections were made, and instructed the prosecuting attorney to abandon the objectionable line of examination. The county attorney did not persist in repeating the objectionable questions after the court sustained the objections. A question or two was asked the defendant which called for manifestly incompetent answers, but this court would not be authorized to reverse this judgment of conviction merely on this ground, where the evidence of guilt is so convincing and the punishment was not prescribed by the jury. We are firmly of the opinion that the record does not establish that the defendant was prejudiced by any ruling of the trial court in this respect, or that the misconduct complained of was so persistent or malicious as to require a reversal of the judgment.

After a careful examination and consideration of this entire record, we find no error therein sufficient to authorize a reversal of this judgment. The judgment is affirmed.

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


text:
    ELMER ALBERT DUNN v. STATE.
    No. A-2500.
    Opinion Filed November 7, 1917.
    Rehearing Denied May 9, 1918.
    (172 Pac. 463.)
    1. INDICTMENT AND INFORMATION — Larceny—Sufficiency of Information — Surplusage. An information charging the larceny of live stock, which alleges an unlawful and felonious taking and asportation of the property without the consent of the owner, and . with the felonious intent to deprive the owner thereof and to convert the said property to the use and benefit of the taker, contains all the essential elements of said crime. Matters of sur-plusage not misleading nor contradictory of the material elements as pleaded will not vitiate an information.
    2. CONTINUANCE' — Absence of Witness — Diligence. It was not error on the part of the trial court to refuse to grant a continuance, or to permit the defendant to_read the testimony of a witness given in his behalf on a former trial, where the record shows that by the exercise of reasonable diligence the attendance-of the witness, who at the time of the trial was within the jurisdiction of the court, could have been obtained.
    3. APPEAL AND ERROR — Examination of Witnesses — Argumentative Questions. Where objection is made to certain questions asked of the defendant by the prosecuting officer, and the court sustains such objection because said questions are argumentative, this court will not reverse a judgment of conviction merely because several argumentative questions were asked of the defend- • ant, where the matters inquired about were proper subjects of inquiry had the question been put in the proper form.
    ' Appeal from District Court, Blaine County; Thomas A. Edwards, Judge.

    Elmer Albert Dunn was convicted of larceny of live stock, and he appeals.
    Judgment affirmed.

      Woolman & Wishard, for plaintiff in error.

      S. P. Freezing, Atty. Gen., and ' R-. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

Elmer Albert Dunn was convicted in the district court of Blaine county of the larceny of two black mares, the property of one Wm. Fletcher, and sentenced to serve a term of eight, years’ imprisonment' in the state penitentiary. From this, judgment he has perfected an appeal to thi's court, and sets out three ah leged errors, on account of which it is contended that the judgment should' be reversed:

First. It is contended that the information upon which defendant was tried is insufficient and defective and indefinité, and does not inform the defendant with sufficient certainty of the crime charged against him. The information is subject to criticism on account of its prolixity. In order to make the allegations exceedingly specific the county attorney pleaded matters which were unnecessary surplusage, but all the necessary elements of the offense are pleaded with certainty and sufficient definiteness to make the information good under the decisions of this court and of the territorial Supreme Court in the following cases: Hughes v. Territory, 8 Okla. 28, 56 Pac. 708; Sullivan v. Territory, 8 Okla. 499, 58 Pac. 650; Shires v. State, 2 Okla. Cr. 89, 99 Pac. 1100; Crowell v. State, 6 Okla. Cr. 148, 117 Pac. 883.

It is next contended.that the trial court erred in not permitting the defendant to introduce in evidence in this case the testimony of his brother-in-law, Erman Riley, given on a former trial of this case. The record discloses that the witness Riley was a resident at that time of Hughes county, Okla. His whereabouts had been known to the defendant long before the trial, and on the former trial he was able to obtain his attendance merely by telegraphing him to come. On this occasion, however, about six days before the trial he had a subpoena issued directed to the sheriff of Hughes county to obtain the attendance of said witness on the day set. The witness, however, failed to appear, and an application for a continuance based on his absence was presented to the court and overruled. The case then proceeded to trial, and as a part of his defense the defendant requested the court to permit him to introduce the testimony of the said Riley given on a former trial. The request was properly overruled. There is no showing made that the witness was without the jurisdiction- of the court, that his whereabouts were unknown, or that he was dead, or any showing such as is required before the testimony of such witness given at a former hearing or trial is permitted to be used on a subsequent trial. On the contrary the showing is positive that the witness was alive and within the jurisdiction of the court; that by proper proceedings compulsory process would have obtained his attendance had proper diligence been used. Neither the ruling of the court in refusing the continuance, nor in permitting the testimony given by the witness on a former trial to be introduced in this case, was erroneous.

Lastly,' it is contended that certain alleged conduct on the part of counsel who assisted in the prosecution was prejudicial to the substantial rights of this defendant. Upon, cross-examination of the defendant counsel for the state asked several questions which were largely argumentative, but the rulings of the court relative to these questions were at all times favorable to the defendant. It was the form of the questions rather than the substance thereof that was objectionable. No question was asked or answer. permitted which was of itself prejudicial according to the previous rulings of this court. The case was hotly contested, vigorously prosecuted, and ably defended. The rulings of the trial court were fair and impartial, and after a careful examination of the record it is the unanimous opinion of this court that the-defendant received a fair and impartial trial, and that the evidence is amply sufficient to sustain the conviction.

The judgment of the district court of Blaine county ife therefore affirmed.

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


author: MATSON; J.

text:
    E. R. BRYCE v. STATE.
    No. A-2344.
    Opinion Filed May 18, 1918.
    (172 Pac. 976.)
    1. APPEAL AND ERROR — Supersedeas Bond — Breach. Where a person is convicted of crime, and perfects an appeal to the Criminal Court of Appeals, he is not entitled to give a supersedeas . bond, and leave the jurisdiction without proper orders permitting him to ,do so..
    2. SAME — Disposition of Case. When a person who has been convicted of a crime appeals and gives bond to stay the execution of the sentence during the pendency of the appeal, and violates the conditions of his bond by leaving the state, without leave of court, it is within the discretion of the court whether it will proceed to a decision of the cause, or dismiss the appeal.

      Appeal from District Court, Cleveland County; K. McMillan, Judge.

    E. R. Bryce (Brice) was convicted of the crime of obtaining property .under false pretenses, and he appeals.
    Appeal dismissed.

      Pruiett & Sniggs, for plaintiff in error.

      S. P. Freeling, Atty. Gen., for the State.
   MATSON; J.

Plaintiff in error was convicted in the district court of Cleveland county of the crime of .obtaining property under false pretenses, and was sentenced to serve a term of three years in the state penitentiary. Appeal was taken from said judgment of conviction to this court, which was lodged in this court on the 1st day of October, 1914, and subsequently submitted .for decision. After the submission of said cause, and while same was ■pending for decision, the Attorney General filed a motion to dismiss the appeal, which is as follows:

“Comes S. P. Freeling, Attorney General for the State of Oklahoma, and moves the court to dismiss the appeal in the above styled and mentioned case, and for reason for so doing says: Said E. R. Brice was convicted in the district court of Cleveland county, Okla., and the verdict and judgment was appealed to this court October. I, 1914. Since that time said Brice has beén out of the custody of the sheriff of that county, and on bond. Your ■Attorney General has learned that the said Brice (who sometimes spells his name Bryce and sometimes Brice), during the existence of said bond,- and during November, and February of 1917, and 1918, has left the jurisdiction of the State of Oklahoma, and put himself under the jurisdiction of the courts of Texas, another and a different state. More than that, on both dates he was engaged in the violation of the law of each of said states. Thus, this court lost jurisdiction over said Brice, and his bondsmen in this state lost jurisdiction of his person, and he himself voluntarily changed the whole relation of all said parties by going out of the State of Oklahoma into another state. As evidence of this change, your Attorney General files the affidavit of J. D. Key, sheriff of Wilbarger county, Texas, marked and filed as Exhibit A hereto, and the affidavit of J. M. Edwards, a constable of said county in Texas, showing the absence of said Brice from the State of Oklahoma, and of his presence in Texas, in open violation of the laws of both states, during the pendency of said bond. Wherefore, your Attorney General prays that said cause be dismissed. The affidavit of said Edwards is marked as Exhibit B hereto, and both said exhibits are made a part of this petition.
“S. P. Freeling, Atty. Gen”

This motion is supported by the affidavits of one J. D. Key, the sheriff of Wilbarger county, Tex., and one J. M. Edwards, constable of precinct No. 5 of Wilbarger county, Tex., which fully sustain all of the allegations contained in the motion to dismiss, and in addition show that this plaintiff in error has left the State of Oklahoma without leave of this court 'during the pendency of this appeal; that he has repeatedly since the pending of this appeal not only left the jurisdiction of this court in violation of his supersedeas bond, but that he has done so for the purpose of enabling him to violate the prohibitory liquor laws of this state. The conditions of his appeal bond are provided by section 5995, Rev. Laws 1910, as follows:

“If an appeal is taken and the appeal bond given as provided in the preceding section, said bond shall be conditioned that the defendant will appear, submit to and perform any judgment rendered by the Criminal Court of Appeals or the court in which the original judgment was rendered in the further progress of the cause, and will not depart without leave of the court. If no bond be given the appeal shall not stay execution of the judgment, except in capital cases or where otherwise specifically provided by law. If pending the appeal the bond be given a further execution of the judgment shall be stayed and the defendant released pending the determination of the appeal. In all cases where the sentence is for a crime not bailable the defendant shall be confined in the penitentiary pending the appeal.”

The motion to dismiss the appeal was set for hearing on the 11th day of April, 1918, at which time counsel for plaintiff in error filed a reply to said motion, but counsel admits therein that since the taking of the appeal defendant has left the jurisdiction of this court without obtaining any proper order permitting him to do so, but says that his absence was only- temporary and for business reasons.

• In the case of Lot Ravenscraft v. State, 12 Okla. Cr. 283, 155 Pac. 198, this court held:

“When a person is convicted of crime and perfects an appeal to this court, he is not entitled to give a super-sedeas bond and leave the jurisdiction without proper orders permitting him to do so.”

Under section 5995, supra,, and as held in Ravenscraft v. State, supra, it is a condition of plaintiff in error’s right to appeal that a bond be given as provided in said section, and that the judgment of conviction shall not be superseded except upon the conditions named therein. Therefore, where a supersedeas bond is given, it is strictly upon the condition that the plaintiff in error shall fully observe the conditions named in said bond, and where it is shown, as in this case, that the plaintiff in error, after perfecting his appeal, without permission or proper order of the court first obtained, left the jurisdiction of the court, thus voluntarily violating one of the conditions of his supersedeas bond, he thereby waived the right that was given him to-have the judgment of conviction superseded, and it then became discretionary with this court to proceed to a determination of the cause on its merits or to dismiss said appeal’ for that reason.

If persons who are convicted of crime within this state leave the jurisdiction of this court after taking an appeal without its permission or order, even for a short period of time, they may, with equal right and propriety, leave the court’s jurisdiction during the entire pendency of the appeal, and the court, under such circumstances, would be practically helpless to enforce its judgment against them. Persons convicted of crime in courts of record within this state have a right to appeal to this court, but such appeals must be taken in the manner and under the conditions provided by law. The right to supersede a judgment of conviction by the giving of an appeal bond cannot be considered by appellants as a license to roam at' large pending such appeal, continually violating the criminal statutes of this state.

Where, on motion to dismiss the appeal, a showing is made by the state such as in this case, this court, in the exercise of its discretion, may dismiss the same.

For the reasons above stated, the appeal is dismissed. Mandate forthwith.

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