text:
    RAYBURN MORRIS v. STATE.
    No. A-9566.
    Nov. 16, 1939.
    (96 P. 2d 88.)

      J. H. Warren and B. D. Jordan, both of Hugo, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

By information appellant, Rayburn Morris, Malcolm Keene and “Smoky” Bill Horne were jointly charged in the district court of Choctaw county with the murder of John Hammock, alleged to have been committed in said county on or about the 5th day of October, 1933, and further charged substantially that said defendants, acting conjointly and together, did then and there willfully, and feloniously conspire to rob one John Hammock, and acting together in pursuance of said con-, spiracy, and by the use of a pistol, had and held in the hands of said defendants, did place the said John Hammock in great bodily fear, and did then and there take from his person and against his will, the sum of $42, and five cases of whisky, and while engaged in the commission of said felony, they, the said defendants, then and there and acting together, did, willfully, unlawfully and feloniously, and with a premeditated design to effect the death of the said John Hammock, then and there shoot said John Hammock, inflicting certain mortal wounds upon him from the effect of which said wounds said John Hammock did linger and die, as was intended by said defendants.

Upon his separate trial the jury found him guilty of murder and assessed the punishment at imprisonment in the penitentiary for life at hard labor.

His motion for a new trial was denied on April 18, 1938. From the judgment rendered in pursuance of the verdict, he appeals.

We shall first consider the assignment of error, that the verdict of the jury is contrary to law and' is not supported by the evidence, in that there is no evidence to corroborate the testimony of the witness, Malcolm Keene, co-defendant, who had previously been tried and convicted of murder, as charged in the information.

As this is the only substantial question raised on this appeal, we will state the evidence in some detail.

The record shows that the testimony of Malcolm Keene, the first witness called, was relied upon by the state to show the circumstances of the killing. His testimony was substantially as follows:

“I have known Rayburn Morris for 20 years. On the 4th day of October, 1933, I was working at Dennis Gibbs’ blacksmith shop at Bonham, Tex.; Rayburn Morris came there to see me; Bill Horne was Avith him. He said that they were going after a load of Avhisky, and the way they were going to get the whisky was to come over here and buy a load of Avhisky, and while he was in the house paying for it, I was to drive away with the load of whisky. I was to steal his car with the whisky in it. I saw him on the streets a few days before that, and that was what he was talking about, coming over here and getting the whisky. I was to come in Bill Horne’s car by Arthur City and Bill Horne and Rayburn were coming by Paris in Rayburn’s car. I told them I would meet them on the square at 6 o’clock and I met them there. They said: ‘Are you ready to go, there is ‘Smoky’s’ car, full of gas and oil.’ I told them I was going home, and I came down by Telephone, Tex., and met them at Hugo. On my way I stopped at Nell Owen’s house and ate supper. I told her I was going after a load of whisky. She asked whose car I was in and I told her Bill Horne’s, she asked me about Rayburn and Bill and I told her they were in Rayburn’s car, going by Honey Grove. I left her place a little after 8 o’clock and arrived in Hugo a little after 9. I met Bill and Rayburn on the street in Hugo at the fire house, and stopped and talked to them, and we went back to the river to hunt some whisky, did not find anything that night. Bill Horne went up to see Hammock and he did not have any whisky that night. We came back to the tourist camp about midnight, rented a cabin and went to bed. Rayburn and Bill put up the money. I did not have a penny myself. I was to drive the car off after they got it loaded, and I was to get one-third of the whisky. The next morning we left the tourist camp and had breakfast at Norton’s cafe, then went to the mountains, trying to find some whisky, we took Bill’s car to the mountains, and we went to John O’Keefe’s house, the first house east of Ft. Townson on the hill. About the middle of the afternoon we came back to Norton’s cafe and had dinner; then Ave went to the tourist camp. Bill went back to toAvn and came back that night with a woman in the car, just as Rayburn and I were fixing to leave. Bill went back to toAvn with the woman. About sundown Rayburn and I Avent to the river, we were waiting for Bill. We waited for him by Grant, under the railroad pass. Bill came and we went to the river, to a beer joint. After we got to the filling station and could not find whis-ky, old man Hammock had five cases, and Bill went up there, he knew the people, but hé did not think that was enough to fool Avith. We went on down to' the river, trying to find some. We talked there and decided we would come up and take that Avhiskv off Mr. Hammock. Rayburn said he was not going back without some, and was going up and take that five gallons of whisky. He said for Bill to go up and buy the whisky, and Rayburn to stay in the road and keep other cars away. The whisky was to be put in ‘Smoky’ Bill’s car, and I was to come up and hi-jack ‘Smoky’, take the money and drive off with the whisky. Rayburn was to stay in the road with his car, so if we got into a jam he was to keep the other cars out of the way. 1 was to walk up while ‘Smoky’ was fixing to pay Mr. Hammock, and when ‘Smoky’ started to pay him I walked up and held him up and took the money off him, the whisky was already in the car, I made ‘Smoky’ and John Hammock get in the car and I drove down to' the bridge a ways. I was to put ‘Smoky’ out first,. Rayburn said to, and Ray-bum was to pick him up. Rayburn was behind me. I was to come on down the road and put Mr. Hammock out. I put ‘Smoky’ out and drove down the road a ways and started to put Mr. Hammock out, but he jumped me up, and then hit me with a flash light. I could not get him to stop, and I shot him. I shot myself when I shot him. The bullet went through there and came out here (indicating his leg), he was still on me, but quit hitting me. The car went in the ditch. I backed out the car and had the gun, and he was holding on to the end of the gun, I told him to turn it loose, and he said, ‘No, you will shoot me’. I said, ‘No, I ain’t going to shoot you, turn loose’. He said, you promise not to shoot me any more, I will turn it loose.’ I said, ‘I won’t shoot.’ and he turned loose. I told him to get out, and I backed the car out of the ditch and went on. I drove to Arthur City. I passed Bill and Rayburn the other side of Arthur City. When I was in the ditch they went by. After I passed them at Arthur City I turned west and went to a school house. That was where I was to leave the car. I was to get in with Rayburn and ‘Smoky’ and leave the car there and pretend somebody had stolen ‘Smoky’s’ car. That was all of our plans. I drove the car behind the school house, they transferred the whisky to Rayburn’s car, and Rayburn asked me why I did not get the old man’s money. I told him I got all I wanted and more too. They went by and I got out at Nell Owen’s house. They took all the whisky but half a gallon. Rayburn said he was going to Sherman that night and send a doctor back to Nell Owen’s to dress my leg. Rayburn came back to Nell Owen’s, once, I think it was Saturday. We had a talk, Baybum and I. All the family was in the room. He told me to ask them to go out in the other room, that’ he wanted to talk to me. I asked them to go out and they did. Bayburn said 'Smoky’ had gotten in jail, and said they were looking for me; he wanted me to get out of the way before the law got me. He said he could not get a doctor to come, or did not get him, and he told me about Bill Horne being in jail. That was a Ford roadster belonging to Bill Horne that I was driving. John Hammock was shot Thursday night, and the following Sunday night Baybum came to see me while I was up in the woods. Martin Keene, his brother and Bill Anderson were with him. They all talked with Bayburn about my being shot. I tried to get him to take me somewhere and he would not do it, said he was afraid of being seen with me, knowing I was shot and knowing he was involved, and after he would; not take me, I Avent across the field to a neighbor’s house and stayed all night. The next day I got a boy to take me to Honey Grove to Ann Smith’s house. I do not know what day it was, but on Friday the 13th, my brother brought me over here to Hugo and I gave up.”

Orland Stephens testified:

"I have known Baybum Morris nearly all my life, Smoky Bill Home three or four years, and I know Malcolm Keene. A few days before John Hammock was shot T talked with Baybum Morris, in Bonham, right by the First National Bank, Bill Home and Malcolm Keene were with him, they talked about coming after a load of whisky and getting it without paying for it, Baybum wanted me to come with him.”

Bill Kilough testified:

"I saw Baybum Morris and Bill Horne come there the day Malcolm Keene was working on a truck, they came there twice that day and talked to Malcolm Keene, I think the day was 'October 4, 1933, it was the last day I worked there. It was before John Hammock was killed.”

John O’Keefe testified:

“I live a mile and three quarters northeast of Corinne. I know Rayburn Morris and he with two other fellows came to my house, Rayburn Moms said that they were hunting for whisky, that night John Hammock was shot.”

Mrs. Mantooth, formerly Mrs. John Hammock, testified that on the night of the 5th of October, 1933, Smokey Bill Horne came to her house to get whisky from her husband, and he and her husband took four or five cases of whisky out of the house and put them in a car.

“The first time I saw my husband after that was in the Pañis Sanitarium. He had a gunshot wound in the left side, and he died from the effects of the bullet wounds. My son-in-law, Joe Pettijohn, and his wife and Andy, one of my boys, were at home there that night. Mr. Pettijohn was asleep and my daughter, Mrs. Pettijohn, was up attending her baby, she now lives in Arizona, and my son Andy lives in Arizona, I have been getting letters from them there.”

Thereupon the transcript of the testimony of Mrs. Joe Pettijohn, given at the preliminary examination, was offered in evidence. She testified:

“John Hammock was my father, I was at my father’s place the night my father was shot, when these men came after the whisky I was up with my baby. Bill Home came in, I knew him, and they took away five or six cases of whisky.”

The state then offered in evidence the transcript of the testimony of Andy Hammock, given on the examining trial. He testified :

“I am 18 years old, I was about 14 when my father was killed, at that time I had known Bill Home for a year or two, he came to the house that night, and got some whisky.”

Lige Hammock testified:

“I am the son of John Hammock. I remember the time my father was shot. I went to the hospital with him, he was shot over the hip, coming ont right side of the spine. He lived five days and died from the effects of that wound in the Paris Sanitarium. I was not at home that night.”

Nell Irvin testified:

“I know the defendant, Rayburn Morris, when I see him; I was acquainted with Malcolm Keene and Bill Horne. At the time John Hammock was shot I was living on the Gross farm, six or seven miles from Telephone, Tex. I now live at Tishomingo, Okla.; I heard about John Hammock being shot. I saw Malcolm Keene two nights before he was shot. He came by the house. He said he was going to the river bridge to meet Rayburn Morris and Smoky Bill at Arthur City. He was traveling in a Ford Model A roadster. He said he was coming over here after liquor. He had a pistol in the car seat. I asked him what he was going to do with it. He said he might use it before he got back. He said they were going to hi-jack somebody out of it. That night he had supper with me and left, going towards the river. One or two nights after that he came back, and he was shot. He had a half gallon of whisky. That was Thursday night and he stayed until Saturday night. Rayburn Morris came to the house, when he came in he asked Malcolm to tell mother and I to leave the room, and we left the room. I heard a car when he came there; that was what woke me up. When we started out of the room I heard Rayburn say something had to be done, that they were after him and had Smoky in jail and he wanted Malcolm to leave.”

W. Y. Anderson testified:

“I live at Ivanhoe, Fannin Co., Tex. I am a brother-in-law of Malcolm Keene. I saw Rayburn Morris in Ivanhoe after Malcolm Keene was shot, Saturday October 7th. The next time I saw him was in Sherman, on Sunday, the 8th. That Sunday night he came to my house. I got in his car and we went south from Ivanhoe about three quarters of a mile, turned up the road east a half a mile, and stopped to talk. I told Mm Malcolm Keene wanted him to get a doctor, and wanted him to come and see him. He said, ‘What is the matter?’ I said, ‘Yon know what is the matter.’ He said, ‘Well, I will come down there.’ He said, ‘You may walk hack to Ivanhoe.’ I said, ‘Why not gO' back to Ivanhoe?’ He said, ‘I don’t want them to- see me going north.’ I said, ‘Take me back to the good road.’ He took me back to the good road then went east. I didn’t know but what he was going to where Malcolm was. At Sherman, Martin Keene was with us and Bay-burn said, ‘I will be there tonight’, and that was about all that was said there, when I came back home that Sunday night the law had been there. My wife told me they were hunting Malcolm. In a few minutes Martin Keene and Bayburn came walking up, I said: ‘Where is Malcolm?’ He said, ‘He is coming.’ They came in and Malcolm wanted him to take him to a doctor. Bayburn said, ‘I am afraid to take you, the law is here and I am afraid will catch us both.’ I said: ‘You can’t stay here; if you do you are liable to get me in trouble for harboring.’ They said, ‘Well, let’s go’, and they left my house and went east to where Bayburn said his car was. That was Sunday night the 8th.”

Martin Keene testified:

“I am a brother of Malcolm Keene. The first time I saw Bayburn Morris I went to his place in Sherman. Tt was .Sunday. Bill Anderson was with me. My brother sent me over there. Bill Anderson and I were going down the street and heard some one whistle. I turned and saw Bayburn across the street. He motioned for us to come over. I walked over and started to tell him about my brother wanting him to come down and see him. Bayburn said : ‘Well, don’t say any more about it, my father and mother are in the house; I don’t want them to know about it. I will be there tonight’. Bill Anderson and I got in the car and went home. He came to my house where my brother was supposed to be, but the laws from Oklahoma and Bon-ham came to my house while Bill and I were gone, and he was not there when I got back. Bayburn Morris came to my house that Mght, and said, ‘Where is Malcolm?’ I said, ‘Don’t ask me, he is gone. He was here when I left. My wife said he went up through the woods.’ He was shot through the leg. He Avas in bad shape and I was afraid got unconscious. I made two or three rounds but could not find him. When Eayburn came to my house he hid his car east of the graveyard. Eayburn and I walked around through the woods. I whistled and my brother answered and we walked down and talked to him. My brother Avanted a doctor to' have his leg treated. Eayburn said: ‘It won’t do to get out, they are watching every move I make. The best thing to do is to lay close for a few days.’ That was the last time I saw Eayburn and Malcolm together.”

Ernest Steen testified:

“I have known Eayburn Morris four or five years. I remember the night that John Hammock was shot. At that time I was selling beer on the river. I saw Eayburn Morris, Smoky Bill and another fellow together, down there about 8 o’clock that night. They came to my place in Eayburn’s car. Smoky Bill got out of the car, came in, got a bottle of beer and asked me if Mr. Hammock was my friend. I told him ‘No, not in particular’. He said, ‘Well, we are going to make him for a load of whisky tonight.”

Charlie Waddington testified:

“I was sheriff when John Hammock was killed. I made some investigation and went over into Texas and at the Belk schoolhouse I found a Ford car. It was a roadster, parked back of the building. I found broken pieces of glass and a cap in the car, and there was blood in the car.”

Cap Duncan testified:

“I am now sheriff of Choctaw county, at the time John Hammock was shot I was a deputy sheriff for Mr. Waddington, and went with him to the Belk schoolhouse, in Texas; there we found a Ford Model A Eoadster, there was some blood in the car, and dried blood on the seat.”

Malcolm Keene, recalled, testified as follows:

“Q. Malcolm, yesterday I don’t think I asked: How much money did you get in that holdup? A. $42. Q. To whom did you give that money? A. Rayburn Morris. Q. How many cases of whisky did you get? A. Five eases.”

When the state rested its case defendant interposed a demurrer to the evidence, on the ground that there is no testimony to corroborate the witness, Malcolm Keene.

Appellant did not elect to testify as a witness in his own behalf and there was no evidence offered on the part of the defense.

The evidence for the state is undisputed that the robbery and homicide were both committed as charged in the information.

Homicide is murder: “When perpetrated without any design to effect death by a person engaged in the commission of any felony.” Penal Code, sec. 2216, 3d subd., 21 Okla. St. Ann. § 701, subd. 3.

The intent of the Legislature in enacting this subdivision was doubtless to class certain homicides as murder, without containing the ingredient of premeditated design or intention, which otherwise could not possibly be of a higher degree than manslaughter.

In Allen v. State, 16 Okla. Cr. 136, 180 P. 564, the court held:

“A homicide perpetrated without any design to effect ¡death by a person engaged in the commission of a robbery, is * * * 'murder,’ [within subdivision three of this section], although the robber did not intend to kill when he fired the fatal shot.”

' Where defendant’s coconspirator killed decedent in perpetration of robbery, both are guilty of murder as provided by the third subdivision of the section, although neither had design to effect death. McDonald v. State, 54 Okla. Cr. 161, 15 P. 2d 1092.

A careful consideration of all the evidence in the case shows that not only was the evidence of the convicted codefendant, Malcolm Keene, abundantly corroborated, but if the testimony of said accomplice be eliminated there remains undisputed evidence sufficient to support the verdict of the jury. There was independent evidence showing the conspiracy to commit the robbery, and facts and circumstances showing that the defendants were acting in concert with a common purpose and intent in the commission of the robbery, and showing statements made by appellant, connecting him with the commission of the robbery, and that he became a fugitive from justice following the commission of the homicide by his coconspirator in the commission of the robbery. And that while he was a fugitive from justice he made admissions of inculpatory facts showing that he participated in the robbery in the commission of which the homicide was committed.

The proposition of whether or not a witness has been convicted goes only to his credibility.

The fact that one is jointly charged with the person on trial could have no greater effect. A codefendant is competent as a witness only at his own request.

The established rule in this jurisdiction is that when two or more persons are jointly charged with the commission of ¡a felony and separately tried, each is a competent witness for or against his codefendant when he voluntarily elects to become such. Bryan v. State, 11 Okla. Cr. 180, 144 P. 392, 393.

Another assignment is that the court erred in permitting the transcript of the testimony of two witnesses not present, taken at the preliminary examination, without fixing by competent evidence a proper predicate, why they are not present to testify.

The rule is well settled in this state that, where the testimony of a witness was given at a preliminary examination and his testimony taken by the reporter in the presence of the defendant and his counsel, who had opportunity to cross-examine, and such testimony is transcribed and filed with the court clerk, and if such witness is not present at the final trial, and the state shows such witness cannot with due diligence be found within the jurisdiction of the court, or is absent from the state, the testimony of the witness may be read to the jury. Clark v. State, 28 Okla. Cr. 31, 228 P. 791.

Without a detailed explanation, we hold that the showing made that both witnesses were out of the state constituted a sufficient predicate for the introduction of their testimony in this manner.

Another assignment is that the court erred in permitting witnesses to testify to conversations had with appellant and in admitting declarations and statements made by codefendants.

The testimony objected to was admitted by the court under the theory of the state that defendant, Morris, had conspired with his codefendants, Keene and Horne, to go across Red river into Oklahoma and there commit the alleged robbery.

Upon the theory of the state we are of the opinion that the testimony objected to was properly admitted.

In the case of Starr v. State, 5 Okla. Cr. 440, 115 P. 356, 364, it is said:

“The rule of law applicable to questions of this kind is well settled. In a trial for murder any evidence which fairly tends to prove a conspiracy between persons to commit the murder and the motive for the murder is admissible, although not tending directly to prove the murder charged in all cases, Avhere such testimony tends to corroborate the testimony tending, directly to prove the murder charged. It is not necessary that the prosecution establish beyond peradventure that the acts, declarations, or conduct of the alleged conspirators were based upon the conspiracy or in reference to the crime charged. It is sufficient if they harmonize with and tend to confirm the charge of conspiracy or show motive for the crime. If such acts, declarations, or conduct of the alleged conspirators could not be shown, unless the motive therefor, or the connection between the same and the crime, were made undisputably clear, the range of inquiry would be very limited. It is sufficient that such acts, declarations and conduct have an apparent or probable connection with the crime. The general rule is that where there is evidence of conspiracy to commit a crime, and of its subsequent commission, the prosecution may in support and corroboration thereof show acts, declarations, or conduct of the alleged conspirators intermediate of the conspiracy and the crime which apparently recognizes the existence of the conspiracy or reasonably indicates preparation or motive to commit the crime.
“ ‘Where a conspiracy is shown to exist, which is usually inductively from circumstances, then the declarations of one conspirator in furtherance of the common design, as long as the conspiracy continues, are admissible against his associates, though made in the absence of the latter. The least degree of concert or collusion between the parties to1 an illegal transaction makes the act of one the act of all.’ 2 Wharton’s Law of Evd. par. 1205.
“ ‘Slight evidence of collusion is all that is required.’ 2 Rice on Evd. 865, § 833; 1 Greenleaf on Evd. (13th Ed.) § 111; Anarchist’s Case [Spies v. People], 122 Ill. 1, 12 N. E. 865, 17 N. E. 898, 3 Am. St. Rep. 320.”

In the case of Irvin v. State, 11 Okla. Cr. 301, 146 P. 453, 463, we said:

“Where there is evidence tending to show community of design between two or more persons for the performance of an unlawful act, the actions, and conduct, and statements of one of them are admissible in evidence in a prosecution against another of the conspirators for homicide alleged to have resulted from the conspiracy, and this is the rule though such acts were not done, or though such statements or declarations were not made, in the presence of the person against whom they were used.

“See note and cases collated People v. Lawrence, 68 L. R. A. 220.

“A conspiracy can seldom be established by direct and positive evidence. It is from the nature of the case, only evidence of circumstances tending to show conspiracy which ordinarily can be adduced. If there is testimony tending to show that the defendants pursued by their acts the same unlawful object, one performing one part and another another part of the same so as to complete it, with a view to the attainment of that same object, a sufficient and proper foundation has been laid for the admission of the acts and declarations of other conspirators made and done while the conspiracy was continuing in furtherance of the common design.”

As to other assignments of error, counsel for appellant have cited the court to no authority supporting the contentions made. We consider the assignments wholly without merit.

The instructions of the court to which no objection was made or exception taken, fairly and correctly cover the law of the case.

A careful examination of the entire record leads us to the conclusion that the only debatable question in the case for the jury to consider was whether appellant’s punishment should be death or imprisonment for life.

Our conclusion is that appellant had a fair trial with every right accorded to him that the law justifies or requires.

The judgment of the district court of Choctaw county herein is accordingly affirmed.

BAREFOOT and DAVENPORT, JJ., concur.


source: Caselaw Access Project

author: BABEFOOT, J.

license: Public Domain

text:
    DR. B. R. REEVES v. STATE.
    No. A-9564.
    Nov. 29, 1939.
    (96 P. 2d 536.)

      Mathers & Mathers and Joe Adwon, all of Oklahoma 'City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Lewis B. Morris, Co'. Atty., of Oklahoma City, for the State.
   BABEFOOT, J.

Defendant was charged in the district court of Oklahoma county with the crime of attempting to obtain money by false pretense and false representations ; was tried, convicted and sentenced to serve a term of six months in the county jail, and pay a fine of $50 and costs, and has appealed.

The statutes under which defendant was charged are: Oklahoma Statutes, 1931, section 2087, 21 Okla. St. Ann. § 1542, which is as follows:

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

And also Oklahoma Statutes, 1931, section 1822, 21 Okla. St. Ann. § 42, which is as follows:

“Every person who attempts to commit any crime, and in such attempt does any act toward the commission of such crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made.by law for the punishment of such attempt, as follows:
“1. If the offense so attempted be punishable by imprisonment- in the penitentiary for four years or more, or by imprisonment in a county jail, the person guilty of such attempt is punishable by imprisonment in the penitentiary, or in a connty jail, as the case may be, for a term not exceeding one-half the longest term of imprisonment prescribed upon a conviction for the offense so attempted.
“2. If the offense so attempted be punishable by imprisonment in the penitentiary for any time less than four years, the person guilty of such attempt is punishable by imprisonment in a county jail for not more than one year.
“3. If the offense so attempted be punishable by a fine, the offender convicted of such attempt is punishable by a fine not exceeding one-half the largest fine which may be imposed upon a conviction of the offense so attempted.
“4. If the offense so attempted be punishable by imprisonment and by a fine, the offender convicted of such attempt may be punished by both imprisonment and fine, not exceeding one-half the longest term of imprisonment and one-half the largest fine which may be imposed upon a conviction for the offense so attempted.”

It is contended that the evidence was insufficient to support the judgment and sentence. A jury was waived and the case was tried before the court.

The evidence revealed that Mrs. Bert Adams was operating a place of business in Oklahoma City, which was adapted for “physical therapy”. This seems to be one who practices through the use of “heat, air, light, water, exercise, and medical gymnastics”. Section 19 of the Basic Science Act, Session Laws 1936-1937, article 28, chapter 24, 59 Okla. St. Ann. § 719, only exempts one practicing “physiotherapistics”, within the limits of his respective calling, from taking the preliminary examination, which is required before taking the examination of the statutory iboard of examiners of the various branches of the healing art. On or about April 15, 1937, the defendant, Dr. B. P. Beeves, came to the home and place of business of Mrs. Adams, and asked her if she was running a beauty house, and she told him she was running a “physiotherapy treatment and conditioning place.” He inquired if she desired to sell out, and she informed him she did, and showed him through the place, and he asked her “* * * if I realized that I was operating against a basic science law, and he said it looked very much like I would have to associate myself with some other doctor, also, to operate, that, as I was operating against the basic science law, and I was subject to so many days in jail and so much fine”. Defendant then informed her he was in a position to get her a certificate so she would be protected. That he was working for Dr. J. D. Osborne, whom the record showed was the .Secretary to the Basic Science Board, and Secretary to the Medical Board.

The evidence of Dr. Osborne was that the defendant was not employed or working under him, and never had so worked, and that there were no inspectors working under that department. That his records did not show that defendant had been issued a certificate to' practice medicine as required by law.

The defendant further stated to' the prosecuting witness that he and Dr. Osborne were very close, and anything he did would be perfectly all right with Dr. Osborne. Defendant then went away but called at her place on the following evening about 5:30, and she could not see him because it was too late. He asked if he could come to see her the next day and she told him it was Easter Sunday, and she could not see him until the following Monday. He called Monday and she made an agreement to see him on Tuesday morning, but he did not come until Tuesday afternoon, and she had him come back at 4’ o’clock.

In the meantime the prosecuting witness had talked with the officers, and they came out to her place, and the witness made arrangements for defendant to call on Wednesday. At the time he came the officers came and were concealed in the house where defendant could not see them, but where they could see and hear the conversation between Mrs. Adams and the defendant. The defendant had before Wednesday told her that it would cost $55 to get the certificate, but if anybody asked her about it to say it was $250, as that was the regular price for the certificate. That it would be necessary for her to stand a written examination, but that he would help her. He had her write out an examination consisting of four pages of questions and answers, which were offered in evidence. She gave the defendant a check for $55 on a bank in which she had money deposited. He gave her a certificate. She further testified:

“A. Well, he told me that this was a certificate and would entitle me, I would be free to practice under this basic-science law and I would be entitled to be a doctor and practice under this and I asked him why Dr. Osborne’s name wasn’t on this and he said it wasn’t necessary. Q. You asked him why Dr. Osborne’s name wasn’t on this, do you mean state’s exhibit 4? A. This little business. Q. Yes. A. You see, he was to take this back and was to have this printed on this form. Q. He was to take these two back and have them Avritten like on state’s exhibit 4, printed on state’s exhibit 3? A. Yes, sir, that is right. Q. And that was to be your certificate? A. Yes, sir. Q. To entitle you to practice? A. That is right. Q. Practice any of the arts under the basic-science law, is that right? A. Yes, sir, that is right. Mr. Mathers: Objected to as being leading and suggestive. The Court: Sustained. Q. Tell the court, whether or not, it was upon the representation of this defendant that you would be entitled to practice the healing arts under the basic science law that you gave him that check for $55 marked state’s exhibit 5? A. Yes, sir, I said, Now, if I buy that certificate, will I be protected there under all these laws and I can go ahead and practice without ever being’ registered?’ and he said, Non absolutely will’ Q. What were you supposed to do', at that time, to do anything else after you got this certificate in order to practice? A. No; sir. Q. Did you have to see anyone else? A. No, sir. Q. This entitles you to practice? A. Yes, sir; he told me, that I was going to have that with the statement that other people worked for eight or nine years to get it and I was going to get it after 30 minutes of questioning.”

Defendant, at the time of his negotiations with prosecuting witness, was wearing a deputy sheriff’s badge, and told her, “I have the authority to arrest any person who is practicing under these laws.”

Just after defendant had received the check and delivered the certificate to the witness, he was arrested by the officers who were concealed in the house, and all of the articles were taken into their possession, including the check for $55, which the witness had given to defendant.

The testimony of Mrs. Adams was fully corroborated by the officers.

The defendant testified that he had been practicing ■medicine for a period of 35 or 40 years. He offered in evidence a court record of his license to practice medicine and surgery. This was a certificate issued by the Medical Board of the Choctaw Nation, on the 26th day of June 1899. This certificate had never been filed with the new board, as provided by law. He also testified he was a graduate of the Palmer-Gregore Chiropractic College, and did post-graduate work at the Carver Chiropractic College. That he was president of a corporation of the National Institute and Association of Science and Arts. He claimed that this corporation had authority to issue a certificate to teach physiotherapy, “to teach any science and. art.” This corporation had a department of Theology, and that Dr. A. E. Smith was dean of it.

Dr. Smith testified as a witness in behalf of defendant.

Defendant testified that he was familiar with the basic-science law, and that he knew that it was unnecessary under this law to obtain a certificate or license to practice as a physiotherapist. That there were other schools in this state which issued certificates to people who desire to practice as a physiotherapist.

He admitted having a talk with Mrs. Adams at different times, in which he told her he believed he could help her get a license which would be of great value to her to show to the general public that what she was practicing was very healing, and especially to have the certificate to hang on the wall for people to see. He further testified as to the arrangements made with her to take the examination, procure the certificate, and the payment of the check for $55. He testified in detail as to the conversation with reference to the size of the certificate she would receive, and as to the price being $250, for which she was to give her note. He also testified to the officers coming put and arresting him and taking the different exhibits that were offered in evidence. He claimed that he did not tell Mrs. Adams that the certificate gave her the right to practice medicine or administer drugs, but that she was qualified to give an incandescent light bath, massage, vibration exercises and gymnastics. The minutes of different meetings of the corporation were introduced in evidence.

Dr. A. E. Smith, as a witness for defendant, testified he was a mechanic and a pastor of the National Spiritualist Church, located at 408% West Second street, Oklahoma City. He was one of the organizers of the corporation above named. When asked what was its purpose he said: “To teach classes and to examine persons and see if they are qualified to give them certificates and setting out their qualifications”. When asked what subjects they taught he said: “Only healing. It was incorporated to teach only this physiotherapy”. He testified under the by-laws that the defendant was authorized to give examinations. He further testified:

“Q. What was required of them to be signed when they became a member of your association, if anything? A. Or to take the examination, take the studies and take an examination or take the examination if they were completed fully with the studies.”

The by-laws of the corporation were introduced in evidence. It is unnecessary to quote from them.

The court who tried this case said:

“The Court: Oh, there isn’t any question in the world but what this man attempted to hold this woman up for $55, there isn’t any question about that and I find him guilty of the offense charged in the information and I find the defendant guilty of the offense charged in the information and fix his punishment at imprisonment in the county jail for a period of six months and to pay a fine of $50.”

As to the questions of fact, this judgment and sentence is as binding upon the defendant as a verdict by a jury.

The evidence shows, as stated by the court, that it was the intention of defendant by the means of false and fraudulent intent, to secure from the prosecuting witness the sum of $55. A reading of the evidence convinces anyone of this fact. You cannot tell from the record what the purposes are of the corporation which defendant and others had organized, but it is clear that defendant was attempting to' use it for the purpose of securing money by false pretense from those who were gullible and unsuspecting. His statement that the prosecuting witness was subject to arrest for a violation of the basic-science law, when he himself testified he knew that she did not need a certificate, under that law, to do the things she was doing, shows that defendant was attempting to deceive her. His wearing, a deputy sheriff’s badge at the very time he was negotiating with her, and the signing of a receipt in full for $250, when only paid $55, shows on its face that this defendant had an intention to obtain this check through false and fraudulent intent. The certificate which was introduced in evidence shows upon its face a false and fraudulent representation. In the face of the certificate it says: “Which entitles her to practice her profession without further examination in the State of Oklahoma, in accordance with the Basic Science Act, which was approved by Governor E. W. Marland, April 19th, 1937.” This certificate was left unsigned and when she asked defendant why it was unsigned, he said it was unnecessary. Under this evidence the court was right in finding defendant guilty, and the judgment cannot be set aside.

It is also urged that the court erred in overruling the general demurrer to the information. We have carefully examined the information and are of the opinion it is good as against a general demurrer. In the case of Rhodes v. State, 58 Okla. Cr. 1, 49 P. 2d 226, 231, this court said:

“To' constitute the crime of obtaining, property under false pretenses the essential elements are: A false statement of past or existing facts by one person to another with intent to defraud; such statement must be reasonably Calculated to deceive that other. It must be so designed as to induce such other to part with his property, and such' design must be accomplished by means of the false pretenses made use of for that purpose.
“It follows that the evidence must establish the obtaining of the property alleged in the information, or some part of it, that by such delivery the property passed' out of the title, possession, and control of the accuser and into that of the accused, and proof of obtaining part of the property described will justify conviction.”

In the case at bar the information was for “an attempt to obtain property by false and fraudulent pretense.” We presume this was filed because the check had not been cashed and the money obtained thereon. Under the general authorities, we are of the opinion that the cashing of the check was not necessary to complete the crime, and the evidence was sufficient to have alleged the obtaining of the property by false pretense and not as an attempt. Mathews v. State, 19 Okla. Cr. 153, 198 P. 112; Drake v. State, 2 Okla. Cr. 643, 103 P. 878; Mason v. State, 23 Okla. Cr. 111, 212 P. 1028; Blanck v. State, 14 Okla. Cr. 339, 169 P. 1130; Robinson v. State, 48 Okla. Cr. 87, 289 P. 785.

For the reasons above stated the judgment of the district court of Oklahoma county is affirmed.

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


author: DOYLE, P. J.

text:
    EMMITT NORRIS v. STATE.
    No. A-9581.
    Nov. 29, 1939.
    (96 P. 2d 540.)

      Bishop, Bishop & Seay, of Seminole, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error was convicted in the district court of Seminole county of the crime of kidnap-ing, alleged to have been committed in said county on or about September 8, 1937, and in accordance with the verdict of the jury was sentenced to serve a term of 30 years imprisonment in the penitentiary. The information charges that:

“The defendant, Emmitt Norris, did then and there willfully, unlawfully, forcibly and feloniously and without the authority of law, kidnap one Joe Tye for the purpose of extorting money and property from the said Joe Tye by then and there willfully, unlawfully, forcibly and feloniously, seizing, confining, inveigling and kidnapping the said Joe Tye with the unlawful and felonious intent then and there upon the part of the said defendant to seize, confine, inveigle and kidnap the said Joe Tye at a point on Highway No. 48 North of the city of Seminole, and did then and thereby commit the crime of kidnapping for the purpose of Extortion; Said kidnapping being a second and subsequent offense.
“He, the said Emmitt Norris, having’ prior thereto been convicted in the district court of Mayes county, Oklahoma, on the 11th day of February, 1931 with the crime of robbery with firearms and then and there sentenced and committed to the state penitentiary at McAlester, Oklahoma for a period of twelve (12) years.
“He, Emmitt Norris, the said defendant, having been prior thereto on the 8th day of May, 1925, convicted with the crime of murder in the first degree in Case No. 695 of Smith Wilcox in the Ninth judicial circuit court of Polk county, Arkansas and then and there sentenced and committed to the penitentiary of the state of Arkansas at hard labor for life.
“He, Emmitt Norris, the said defendant, having been prior thereto on the 8th day of May, 1925, convicted with the crime of murder in the first degree in Case No. 696 of Nannie Wilcox in the Ninth judicial circuit court, of Polk county, Arkansas, and then and there sentenced and committed to the penitentiary of the state of Arkansas at hard labor for life.
“Contrary to” etc.

The assignments of error presented, in the brief are: Error of the court in overruling defendant’s plea in abatement ; error of the court in overruling defendant’s demurrer to the information; error of the court in overruling defendant’s demurrer to the evidence, and motion for an instructed verdict of not guilty.

The prosecution is based on section 1, art. 6, ch. 15, Session Laws 1937, 21 Okla. St. Ann. § 745, which in part provides:

“A. Every person who, without lawful authority, forcibly seizes and confines another, or inveigles or kidnaps another, for the purpose of extorting any money, property or thing of value or advantage from the person so seized, confined, inveigled or kidnaped, or from any other person, or in any manner threatens either by written instrument, word of mouth, message, telegraph, telephone, by placing an ad in a newspaper or by messenger, demands money or other thing of value, shall be guilty of a felony, and upon conviction shall suffer death or imprisonment in the penitentiary, not less than ten years.”

Taking up the errors assigned in the order presented, the first question arises on the action of the court in overruling the so styled plea in abatement.

Under tbe Code of Criminal Procedure, a motion to quasb and set aside an information takes tbe place of tbe plea in abatement a,t common law, a plea tbe subject matter of which may be any objection which could not be properly interposed by a plea in bar.

Any plea setting up absence of jurisdiction of tbe court is a plea to the jurisdiction. State v. Barnett, 60 Okla. Cr. 355, 69 P. 2d 77.

Tbe purpose of a plea, no matter what nomenclature is used, is to make an issue.

In tbe instant case tbe so-called plea was submitted to tbe court on the following, stipulation:

“It is hereby stipulated and agreed by and between tbe state of Oklahoma and the defendant, that tbe defendant, Emmitt Norris, was charged by tbe state of Oklahoma, in case No. 501, in .the superior court of Seminole county, with the crime of kidnapping, and that on the 25th day of February, 1938, he was tried on said charge by a jury, the said jury being unable to agree and this jury ■being discharged by the superior court after failing to agree upon a verdict after all evidence of both the state and defendant was submitted to them, and that thereafter on the 25th day of February, 1938, the state moved for a transfer of said action to the district court of Seminole county, Oklahoma, to which motion the defendant then and there objected and the court overruled said objection and ordered said cause No. 501 transferred to the district court of Seminole county, to1 the action of the court the defendant then and there objected, and exceptions were allowed.
“That thereafter, while said cause No. 501 was still pending and undisposed of the state files another action before Hon. Bob Aubrey, sitting as committing magistrate, by preliminary complaint, charging the defendant with the crime of kidnapping; that he was by said committing magistrate bound to the district court of Seminole county for trial, and said action is not action 501 as transferred from the superior court, but cause No. 4792, wherein the defendant is charged with the crime of kidnapping, but in addition thereto is charged under the habitual offender act, said habitual offender clause being omitted from or not included in the charge filed in the superior court.”

The statutes of this state do not forbid- a prosecution in the same court or in a different court of concurrent jurisdiction where jeopardy has not attached.

It is the well settled rule in this state that the penden-cy of an action and holding of the defendant for trial in one court of the state does not preclude the state from instituting another prosecution for the same offense in a court of concurrent jurisdiction. A plea of abatement, or a plea in bar because of the pendency of an action, will not lie in such latter action. Tobin v. State, 49 Okla. Cr. 265, 293 P. 575.

The rule is also- stated in the case of Kerker v. Superior Court, 38 Okla. Cr. 111, 259 P. 146, 147. In the opinion it is said:

“Jeopardy does not attach until a person is put on trial before a court of competent jurisdiction under an information or indictment sufficient in form and substance to sustain a conviction and a jury has been impaneled and sworn. In re McClaskey, 2 Okla. 568, 37 P. 854; Schreiber v. Clapp, 13 Okla. 215, 74 P. 316; Dupree v. State, 14 Okla. Cr. 369, 171 P. 489 [L. R A. 1918D, 365].
“The statutes of some of the states have settled this question by providing that, where different courts have concurrent jurisdiction of an offense, in certain contingencies one or the other shall have exclusive jurisdiction. This is illustrated in the case of State v. Chinault, 55 Kan. 326, 40 P. 662. The question here is not that which arises where the federal court and the state court have concurrent jurisdiction of the same offense. Where that situation arises, a rule of comity is followed by which the court first acquiring jurisdiction retains it until the jurisdiction is exhausted. This was stated by Taft, C. J., in the case of Ponzi v. Fessenden, 258 U. S. 254, 42 S. Ct. 309, 66 L. Ed. 607, 22 A. L. R. 879.”

And see Griffin v. State, 57 Okla. Cr. 176, 46 P. 2d 382; Neff v. State, 39 Okla. Cr. 133, 264 P. 649.

It follows that said plea in abatement, treated as a plea in bar, on the grounds of former jeopardy and want of jurisdiction, was properly overruled.

The defendant interposed a demurrer to the information on the grounds that the facts stated are insufficient to charge the crime of kidnapping or any other public offense; that the allegations therein are wholly insufficient to charge this defendant with the commission of a second or subsequent offense, and is duplicitous, in that it attempts to charge more than one offense.

The brief filed in behalf of defendant contains no citation of authority to support this assignment.

In Davis v. State, 17 Okla. Cr. 604, 191 P. 1044, 1046, we said:

“A defendant is sufficiently informed of the nature and cause of the accusation against him if the information contains such a description of the offense charged as will enable him to make his defense and to plead the judgment in bar of any further prosecution for the same offense.”

While the information in this case may be said not to' be a model, we are of the opinion that it sufficiently charges the offense of which defendant was convicted. It does not charge two different offenses, and it sufficiently informed defendant of the offense he was called upon •to meet so as to enable him to prepare his defense.

It follows that the trial court did not err in overruling the demurrer thereto.

Under the third assignment counsel for defendant insists that the evidence in the case does not establish that defendant committed the crime of kidnapping, but if it tended to establish a crime, it was attempting the kidnap.

In order to present the questions raised as to the sufficiency of the evidence we will briefly state the undisputed evidence in the case.

Joe Tye testified:

“I live in Lincoln county, my business is buying and selling live stock. On September 8, 1937, I bought 59 head of cattle at auction sale in Ada and hauled them to Tulsa. I hauled 16 head in my truck and hired a trailer truck to haul 43, I drove North from Ada on Highway 48, and stopped about midnight at Cotton’s camp, a mile or two south of Seminole. I had my truck serviced at the station outside the cafe, where I had coffee. I went out to the truck, Emmitt Norris was standing there and asked me if I was going to Oklahoma City with the cattle, I said no I am going north, I got in my truck and drove through Seminole. About two miles north of Seminole a taxi drove around in front and tried to flag me, within the next mile the taxi flagged me again, drove slow in front and forced me to stop. Emmitt Norris got out of the taxi, came back and told me that he was in charge. Ted Coberly was with him. Norris said he wanted to- look the cattle over. I said ‘I have paid tickets on all of them’, I supposed it was stolen cattle he was looking for, and told him to turn the taxi around and shine the lights on the cows. Coberly went back to the taxi and it turned around. They sent the taxi back, Coberly got up in the truck, Norris sat beside me and said, ‘Drive her on up the road.’ I drove on and said, ‘Now, boys if there is a little heat under you and it is a little money you need, you don’t have' to hijack me, I will give you what little money I have got and go on my. way with my stock.’ They said ‘No, we don’t want that, we want them all’. ‘You have got 43 head following you and we are going to have them all.’ Norris said to Coberly, ‘Shoot him’ and I told them they were headed for the electric chair with that kind of job, that they coüld not get away with it, and Norris said, ‘Shoot him in two, if you have not got guts enough to shoot him, give me that gun, I have.’ I drove up the road until we got some three or four miles from where they got in the truck. They told me to take a side road east. I let the truck go on by the intersection and stopped. They told me not to try any funny stuff, or they would tear me in two. I said, ‘Well, if I had turned that comer the way I was going, I would have killed all of us and the stock too.’ I put the truck in reverse and backed up to make the side road, and felt for the latch with my left elbow, I turned the switch off, opened the door with my left elbow and tried to fall out. Norris caught me by the throat, Coberly jumped out of the truck on the other side, went around and hit me on the back of the head. I got my feet on the ground, but I could not get my head and shoulders out. I knocked Norris loose from me; there was a little filling station across the pavement, and it was dark, I hollered, ‘There is a hi-jacking going on here.’ Immediately the lights came on at the filling station, and the lights were on us, I ran to1 the man and asked him if he had a gun, he said, ‘Yes, an automatic.’ I asked him to let me have it, and he said, ‘I know there is a hi-jacking going on, but I don’t know who is doing it.’ I identified myself. He told his wife or some one in the house to call the law. Norris and Coberly got in my truck and drove on north. I got in the man’s car at the filling station and we followed them, I found my track -¿wo miles down the road, stopped on the right of the pavement, it had a flat tire and Norris and Coberly were gone, I notified the police department at Seminole and went on to Tulsa. That was on Tuesday night, and I saw the defendants Thursday night after that in front of the city hall in Seminole sitting in a car with two other fellows, who' I later learned were the sheriff and under-sheriff of this county. I did not give the defendants permission to take my track, and they took me and detained me against my will, and this was in Seminole county.” .

Alfred Dillion testified:

“I drive a cab in the city of Seminole, I work from 5 o’clock in the evening until 5 in the morning, I know Emmitt Norris. On the night of' September 8, 1937, I drove him and Ted Ooberly in the taxi two miles north of the city of Seminole. Then as they directed I drove in front of the truck driven by Mr. Tye, and stopped the truck. Norris got out of the taxi cab at that time, Ted Ooberly paid me and told me to go back to town.”

Jack Sims testified that he was chief of police, city of Seminole; that on September 9, 1937, just before 9 o’clock in the morning he arrested Emmitt Norris; that his clothes had mud and grease on nearly up to his hips.

H. A. Kohn testified that he was county attorney of Mayes county in 1931, and produced the information, verdict of the jury and judgment of the court in the case of State of Oklahoma v. Emmitt Norris, showing conviction for the crime of robbery with firearms, judgment and sentence rendered February 11,1931, wherein said Emmitt Norris was sentenced to be confined in the penitentiary at McAlester for the term of 12 years, for said crime by him committed.

The record shows that counsel for defendant admits “that defendant is the same Emmitt Norris who was convicted of the crime of bank robbery as charged in the information.”

Copies, duly authenticated, of two indictments returned by a grand jury of Polk county, Ark. against Emmitt Norris for the crime of murder, and the judgments rendered on convictions where in each case the defendant, Norris, was sentenced tO' imprisonment in the state penitentiary for life, were admitted in evidence.

When the state rested counsel for defendant demurred to the evidence and moved the court to direct the jury to return a verdict of not guilty, which was overruled; exception.

The defendant did not testify in his own behalf, and the only witness called on the part of the defense was Bice Merrell. He testified that he is sheriff of Seminole county; that he knew the defendant nine or ten years when they lived in the same community in Seminole county and knows the general reputation of the defendant in that community was for being a peaceable law-abiding citizen during that time, and that such reputation was good.

From the foregoing statement of the evidence and the uncontroverted facts and circumstances established, it appears that the complaining witness was by defendant and his confederate forcibly seized, confined, with threats against his life, and his property demanded, and then he was carried away. Thus it appears that the crime of kidnapping as defined in the statute hereinbefore quoted was proven in all its essential elements.

In the case of State v. Autheman, 47 Idaho, 328, 274 P. 805, 62 A. L. R. 195, the Supreme Court of Idaho held:

“One who boards another’s automobile and forces such other to drive him to such places as he desires kidnaps such other within a statute defining kidnapping as the seizure of another with intent to cause him, without authority of law, to' be held in service, or kept or detained against his will.”

In People v. Melendrez, 25 Cal. App. 2d 490, 77 P. 2d 870, it is said:

“Evidence that motorist was removed from possession of automobile and prevented from returning thereto by force and threats against his life, until after defendants had .removed key from car and departed, authorized conviction of kidnapping for the purpose of robbery, notwithstanding that nothing was allegedly taken but key to the automobile.”

A careful examination of the entire record leads us to the conclusion that the errors assigned and relied upon for a reversal of the judgment are without merit in any view of the case. In our opinion defendant was fairly tried and properly convicted.

It is ordered that the judgment of the district court of Seminole county be and it is affirmed.

BAREFOOT and DAVENPORT, JJ., concur.