text:
    HERMAN FOX DAVIS v. STATE.
    No. A-5278.
    Opinion Filed June 27, 1925.
    (237 Pac. 471.)

      W. R. Withington, for plaintiff in error.
    George F. Short, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for the State.
   EDWARDS, J.

For brevity and convenience, the plaintiff in error will be referred to as defendant. On November 9, 1923, Paul McCarthy was shot and killed near the corner of Twentieth and Robinson streets, Oklahoma City. The shooting occurred at about 11:25 p. m. The deceased, a lawyer, was called from his home by telephone just before the shooting. On the 27th day of December, following, the defendant made a sworn statement, in effect, charging Frank Brumley and Eustace Knight with the crime. The defendant, Brumley, Knight, and one Tom Rudolph were jointly charged with the murder of McCarthy, and a severance was taken.

The defendant was an ex-convict, as was also his co-defendant, Brumley; they had known each other in the penitentiary. It is the contention of the state that the defendant, on or prior to his release from the penitentiary, conceived the idea of organizing a gang of hi-j ackers and bank robbers; that he planned and procured the release of Brum-ley from the penitentiary, where he was serving a 40-year sentence, to work for him as a hi-jacker and robber; that he, Brumley, Rudolph, Knight, and the witness Cutler hung about the Daniels Hotel and planned hi-jacking or robbery of different persons, and that the defendant was the brains of the gang; that after the death of McCarthy, which was brought about in robbing him, the defendant became alarmed at the affair, and, being fearful that some of the gang would confess and implicate him, decided to make the first statement with a view of clearing himself from the transaction.

The theory of the defendant is that while he associated with Brumley, Knight, Rudolph, Cutler, and others, and had heard them talk and plan crimes, that he was not connected with them in any conspiracy and was not present at the time of, and had nothing to do with, the killing of McCarthy. Before the trial of the defendant, Knight and Rudolph had pleaded guilty to the charge of murder of McCarthy, and had been sentenced to life imprisonment. Brumley had stood trial, had been convicted, and sentenced to life imprisonment.

Rudolph did not testify at the trial of the case. Brum-ley and Knight testified against the defendant, bearing out fully the theory of the state. The defendant testified in his own behalf, denying any connection with the murder of McCarthy, and offered evidence tending to prove an alibi. After the verdict of the jury, a motion for a new trial was filed and overruled, and appeal regularly taken. Numerous assignments of error are argued in the brief; they may be summarized under the following heads: First, error of the court in failing to instruct on the law of alibi; second, error of the court in admitting incompetent and immaterial evidence, under which assignment various specific objections are discussed; third, error in the court’s instructions ; fourth, error of the court in permitting codefendants to be seated near defendant during the closing argument, and thereby arousing the passion or prejudice of the jury; fifth, error of the court in failing to give requested instructions (there being several assignments under this head); sixth, insufficiency of the corroboration of accomplices testifying for the state.

We consider first the contention of the defendant that the court erred in failing to instruct on the law of alibi. The defendant requested an instruction upon this point; the request, being substantially in the form set out by this court in the case of Thompson v. State, 6 Okla. Cr. 50, 117 P. 216. If, under the evidence and the rule, as laid down by this court,, the defendant was clearly entitled to an instruction under the law of alibi, the failure of the court to so instruct is error. It is fundamental that a defendant, in a criminal case, is entitled to an instruction defining the law applicable to his theory, where there is competent evidence reasonably tending to substantiate that theory. Reed v. State, 3 Okla. Cr. 16, 103 P. 1070, 24 L. R. A. (N. S.) 268.

This general rule covers the defense of alibi, and where alibi is the sole defense, and the proof tends clearly to establish such defense, it is. the duty of the trial court to instruct on the law of alibi, and particularly is this so when a request for such instruction is made. Ayres v. State, 21 Tex. App. 399, 17 S. W. 253; Courtney v. State, 10 Okla. Cr. 589, 140 P. 163. While this is the correct rule, an instruction on alibi need not be given in every case where the evidence may tend to prove an alibi. 16 Corpus Juris, p. 977, states the rule in this manner:

“Such an instruction, however, need not be given where there is not sufficient evidence to support it, * * * or where, because of a conspiracy between defendant and another to commit the crime, it makes no difference whether the defendant was present or not when the crime was committed. Hs Hi

Applying the rule here stated, and the holding in the Courtney Case, supra, the proof must tend clearly to establish such defense, otherwise it is not necessarily error for the court to refuse an instruction on alibi. It follows that, unless the evidence clearly establishes that, at the time of the commission of the murder, charged in the information in this case, the defendant, with ordinary exertion, couldi not have been present, it was not error to refuse the requested instruction. Or if the evidence is sufficient to show a conspiracy between the defendant and others to commit the crime charged, and the presence of the defendant at the time of the murder was not essential to his guilt, such state of facts would not require the giving of an instruction on alibi, although the evidence might tend to show he was not present when the crime was committed.

The evidence, that defendant was at a different place at the time of the homicide, rests on his own testimony and on the testimony of one Wheeler and wife, who testify that they talked with defendant near the Criterion Theater about 9 or 9:30 p. m., on the night of the homicide, and on the evidence of one Cutler, night clerk at the Daniels Hotel, who testified that defendant came to the hotel between 10 and 12 p. m., and that he (Cutler) was suffering with hie-cough, and defendant called up physicians and procured a prescription for him, and the evidence of Dr. Mahr that the defendant called him up and informed him that he had a friend suffering with the hiccough; that he prescribed for him over the ’phone; that the call was between 10 and 11 o’clock p. m., and the evidence of Dr. Dardis that he was called up by the defendant. His evidence was to the effect that he was visiting a patient on Twenty-third and Robinson; left there a short time before 11, went directly to his home on East Sixteenth street; learned that he had had a call, and about 20 minutes after he got there received a call from the defendant Davis in reference to a friend with the hiccough. The defendant in his testimony does not fix clearly the time at which the calls were made.

In the case of Inklebarger v. State, 8 Okla. Cr. 324, 127 P. 707, it was held not reversible error to fail to give an instruction on alibi, unless clearly established by the evidence. But in that case, there was no request for such instruction ; in discussing this point the court said:

“There is no evidence that appellant could not have been at the farm on the day of February 15th, and at the prosecuting witness’ house that night, or during the night the property was stolen. The distance was 22 or 24 miles, and appellant could have been at both places within a day’s time.”

And the court cites with approval State v. Shroyer, 104 Mo. 441, 16 S. W. 286, 24 Am. St. Rep. 344; Schultz v. State, 88 Neb. 613, 130 N. W. 105, 34 L. R. A. (N. S.) 243; Barbe v. Territory, 16 Okla. 562, 86 P. 61. See, also, Williams v. State, 123 Ga. 138, 51 S. E. 322.

The evidence in this casé places the defendant some 20 blocks or such a matter from the. scene of the homicide just prior to the time of the crime charged; it does not show an impossibility of his presence at the scene of the crime at the time of its commission. It is also the law that even though the evidence should show that the defendant was not present at the time of the killing, but should show that the defendant was in a conspiracy with those who did the killing, as result of which the killing took place, he would be a principal and equally guilty, though not present. In such case an instruction on alibi would not be proper. In this case there was considerable evidence tending to prove a conspiracy to commit robberies or hi-jacking. Some of the evidence shows that it was proposed to rob one J. Q. A. Harrod and his wife, one Glitsch and the deceased, McCarthy. In the sworn statement made by the defendant on the 27th of December, this is mentioned by the defendant, but he puts the initiative on Brumley and Knight. The suggested conspiracy did not go to the slaying of McCarthy, but merely to robbery or hi-jacking indiscriminately with the names of several prospective victims suggested. The jury in this case may have believed that the defendant was not present at the time of the killing, but may have further believed that the killing was the outgrowth of a conspiracy in which the defendant was a party. Under this view of the case, the defendant would not have been entitled to an acquittal because not present at the time of the homicide, and would not be entitled to an instruction on alibi. We are constrained to believe that the refusal of the court to instruct on alibi under the record is not reversible error.

Considering the second assignment made by defendant, i. e., the admitting of incompetent and immaterial evidence prejudicial to the defendant, it is first argued that the evidence of one Edith Roff, a’manicurist, that the defendant had suggested to her that she procure married men to go out with her in a car that they might be hi-jacked, is incompetent, and is not connected with the charge against the defendant and tends to prove a different offense entirely. This contention is argued with much force and at some length, citing the following authorities: People v. Williams, 127 Cal. 212, 59 P. 581; Hawkins v. State, 185 Ind. 147, 113 N. E. 232; People v. Steinkraus, 291 Ill. 283, 126 N. E. 202; People v. Molineux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. 193; 1 Wharton’s Criminal Evidence (10th Ed.) p. 60; Miller v. State, 13 Okla. Cr. 176, 163 P. 131, L. R. A. 1917D, 383; Koontz v. State, 10 Okla. Cr. 553, 139 P. 842, Ann. Cas. 1916A, 689.

It is earnestly urged that the evidence of Edith Roff had reference to a proposed crime entirely different from the offense charged, and one that defendant was not prepared to meet, and which necessarily prejudiced the jury against him. To our mind, however, there is a clear distinction between the cases cited and the principle announced therein and the case at bar. Here the theory of the state is that the defendant was organizing and organized a gang to rob and hi-jack persons. It is not the theory that the defendant and his accomplices were conspirators solely in the killing of McCarthy, but that the killing of McCarthy was an incident to the conspiracy formed, and while the charge was for his murder, yet proof of the conspiracy might properly take a wider range, and any evidence tending to prove conspiracy, motive, or the connection of the defendant with his codefendants, Brumley and Knight, leading up to the murder, was material and competent. Proof of the commission of a particular crime charged cannot be made by proving the commission of some other similar but disconnected offense, but the testimony of the witness is of statements made by defendant In the presence of, or to, his co-defendants. It was not proof of a separate crime or a proposed crime, but proof of the organization of the conspiracy, of defendant’s connection with it, and the intent of the parties. The evidence of Edith Roff was competent and material under this view of the case.

Further, under this assignment, it is contended that there was error in permitting the witness Brumley to state the substance of a telegram sent him by the defendant without a sufficient accounting for the original. While the witness testified he did not have the telegram, this was not a sufficient showing to authorize the proof of the contents of the telegram. But, while the defendant was on the stand, he admitted the sending of the telegram and its contents, and the error of its admission is not prejudicial.

It is also argued that the testimony of the witness Eads, in which he was asked about statements presumed to have been made by Brumley after the commission of the offense charged, and while in jail, to the effect that he was going to tell the truth, is incompetent and prejudicial. Objections were made to the question and overruled. They should have been sustained, since the declarations and conduct of the coconspirator made and done after a conspiracy has terminated and not in the presence of his coconspirator are not admissible in evidence against him. Burns v. State, 8 Okla. Cr. 554, 129 P. 657; Koontz v. State, supra; Sturgis v. State, 2 Okla. Cr. 362, 102 P. 57; Smith v. State, 20 Okla. Cr. 362, 202 P. 1046. However, the witness stated that he did not remember any such statement having been made to him by Brumley. The error in propounding the question and overruling the objection, in view of the answer of the witness, is not reversible.

The defendant further assigns error in instruction No. 8 of the court’s charge as follows:

“You are further instructed that some evidence has been permitted to go to you in which the state attempts to show that previous to the homicide in question, an attempt was made to rob one H. and other persons; in this connection, you are charged that the defendant is not on trial for such offense, and the only purpose for which you will consider such testimony is to show the intent, if any, of the defendant of the particular crime charged in the information against him in this case, and for no other purpose.”

The complaint is made that the use of the word “attempt” was prejudicial, and that there was no evidence of any attempt to rob. We perceive no error in the instruction as an abstract proposition of law. Its purpose was to limit the application of evidence suggesting other offenses to show intent in the offense charged, and was beneficial to the defendant. It is true the tendency of the evidence technically considered did not go to the extent of an “attempt.” The charge, as applied to the facts, would have been better expressed by using the words “plan” or “design” instead of the word “attempt.” We think, however, that the j ury could not have been misled by the use of the word “attempt,” and could have understood the charge in no other sense than that they were not to consider reference to other proposed offenses, except in so far as they should throw light on the connection of the defendant, or show the intent of the parties in the crime for which he was on trial.

Error is next predicated on the fact that, in the closing argument, the sheriff seated Knight and Rudolph in the courtroom near the defendant. This, defendant contends, suggested a contrast to the jury, and was calculated to arouse passion and prejudice against him. No reference to these codefendants was made by the counsel for the state in the closing argument, nor any suggestion of their presence indicated by gesture or otherwise. Any conduct on the part of the prosecution or others in the course of the trial calculated to arouse the prejudice or passion of the jury and to prevent an accused from having a fair trial is not to be tolerated, and, where such appears, it is the duty of the court to set aside a conviction and grant a new trial. Knight had already been before the jury and had testified at length. Rudolph had been before the court and had pleaded guilty, but had not been called as a witness for either the state or the defendant. His connection with the case had been detailed in the evidence, and we do not perceive why his mere presence would tend to inflame the jury against the defendant. It would seem as reasonable to suggest that their presence might be beneficial to the defendant, suggesting to them that they were the confessed criminals.

In 16 Corpus Juris, p. 810, the rule is laid down as follows:

“The presence in the courtroom during trial of other persons under indictment for the same offense, but who are to be tried separately, is within the discretion of the court. sf: 4:

Citing in support of the rule, Cunningham v. State, 56 Neb. 691, 77 N. W. 61, where it was said:

“During the trial of Cunningham, Evans was brought into and kept in the courtroom by order of the court. It is now insisted by Cunningham that this was a practical retrial of Evans, and that, since separate trials had been awarded Cunningham and Evans, the action of the district court was erroneous. We do not think it was. The fact that Evans was permitted or compelled to remain in the courtroom during the trial of Cunningham was in no sense a retrial of Evans.”

Further citing Parnell v. State, 50 Tex. Cr. R. 419, 98 S. W. 271, where the court used this language:

“We know of no law that would require the court to have all of appellant’s codefendants to sit in the courtroom during the trial of either. It would not be amiss to do so, but there is no law requiring it.”

This contention is not tenable.

Next it is argued that the court erred in refusing to give certain requests for instructions made by the defendant. We have examined this assignment at length and considered the argument and authorities cited in support of them, and, without going into detail in discussing them, we find that they were either not applicable or were covered in substance by the court’s charge, and that the instructions as a whole fully and fairly submit the issues presented.

Lastly it is argued that there is not sufficient corroborating evidence to support the testimony of Knight and Brumley, who, under their testimony, were accomplices of the defendant. There can be no controversy nor serious difference on the rule of law in this state that a conviction cannot be had upon the uncorroborated evidence of an accomplice. It is not sufficient corroboration to merely connect a defendant with the accomplice in crime, but evidence independent of the testimony of the accomplice must tend to connect a defendant with the crime itself and not simply with its perpetrators. State v. McKinney, 20 Okla. Cr. 134, 201 P. 673; State v. Wilks, 17 Okla. Cr. 247, 187 P. 813; Weaver v. State, 22 Okla. Cr. 414, 211 P. 1062; Kirk v. State, 10 Okla. Cr. 281, 135 P. 1156.

We have gone over the testimony at length and while the evidence, other than that of the accomplices, and the written statement of defendant, is circumstantial, we think that the circumstances and the inferences, that arise, and are reasonably to be drawn from them, are amply sufficient to satisfy this rule. To set out the various items of evidence, tending to connect the defendant with the commission of the crime, would render the opinion unduly lengthy, and would serve no particular purpose. The defendant was ably represented. His case was well presented both in the lower court and in this court by oral arguments and briefs.

Finding no error that would warrant a reversal, the case is affirmed.

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


source: Caselaw Access Project

author: BESSEY, P. J.

license: Public Domain

text:
    CLIFFORD FIELDS v. STATE.
    No. A-4758.
    Opinion Filed June 6, 1925.
    Rehearing Denied June 27, 1925.
    (236 Pac. 633.)
    Eck E. Brook and A. L. Brook, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

Clifford Fields was in the county court of Muskogee county found guilty of having illegal possession of whisky. By the judgment of the court his punishment was fixed at confinement in the county jail for a period of 9'0 days and to pay a fine of $150.

Peace officers, armed with a search warrant, went to a certain farmhouse near Taft to search the premises. As the officers approached the place described in the search warrant they saw two cars parked in the highway near the entrance, and saw one car drive away at a rapid rate of speed. The officers went to the other car, and as they did so the defendant and a companion came out of the house described in the search warrant. In this car the officers found two gallons of whisky. Clifford Fields admitted that he was the owner of the car, but claimed that he knew nothing about the whisky; that it was placed there by some person unknown to him.

The first assignment of error is that the search of the car and seizure of the whisky was an illegal search and seizure. This was probably true, although there was testimony by one of the officers that he saw the defendant take a jug of whisky out of this car. If this be a fact, the arrest of the defendant without a warrant for arrest was justifiedi as being an arrest for an offense committed in the presence of an officer, and the subsequent seizure would also be justified as an incident to such legal arrest. But, be that as it may, if the search was in fact illegal, when the evidence obtained thereby was offered, the accused should have made prompt and timely objections to its introduction. No objections whatever on this score were interposed in the trial court, and defendant’s right to object was therefore waived. Such objections will not be considered for the first time in this court. Gore v. State, 24 Okla. Cr. 394, 218 P. 545; 24 A. L. R. 1421.

It was the claim of the defendant that he was the owner and operator of a pool hall in Taft. On the Sunday the arrest was made the pool hall was closed. The companion of the defendant had employed the defendant to carry him to some distant place to see about some hogs. On this trip they passed the house in front of which the arrest was made, where the brother-in-law of defendant’s companion lived. There they stopped and went into the house to get something to eat.

One of the officers testified that the defendant stated that the whisky did not belong to him, and that he was hauling it for somebody else.

Under circumstances like this, the evidence being conflicting, this court would not be justified in reversing the judgment on the ground of insufficiency of the evidence.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    W. M. SODERBERG v. STATE.
    No. A-4847.
    Opinion Filed June 27, 1925.
    (237 Pac. 467.)
    W. R. Withington, for plaintiff in error.
    The Attorney General, and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

W. M. Soderberg, plaintiff in error, here referred to as the defendant, was convicted of having illegal possession of 10 gallons of corn whisky. By a verdict of a jury his punishment was fixed at confinement in the county jail for a period of 60 days, and to pay a fine of $200.

The facts developed by the state show that certain peace officers went to the home of the defendant with a warrant for his arrest on a police court charge; that they found the defendant sitting in a car in front of his residence. When the purpose of the officers was made known to the defendant, he submitted to arrest, and went into the house to get his hat and coat. The officers followed him in, and found a keg and a large jar containing corn whisky which was being drawn off into small bottles. On the way to the police station the defendant made a remark to a friend from which the inference was to be drawn that the whisky belonged to the defendant.

At the trial the defendant denied that the whisky was his, and claimed that his wife had sued him for a divorce, and that he had not been about the premises for three months until that morning, when he had gone there at the request of his wife. The defendant claims that the whisky and other evidence introduced were obtained through an un- ‘ authorized invasion of his private residence, and were therefore inadmissible.

After the defendant was legally arrested on another charge, the officers had a right to follow him into his home. Indeed, the circumstances amounted to an invitation to them to enter. While there, they saw this whisky, and had good cause to believe that he was violating the prohibitory law in their presence. The whisky seized and the evidence relating thereto, obtained as an incident to his lawful arrest, were properly admitted. Davis v. State, 30 Okla. Cr. 61, 234 P. 787, and cases cited.

It is claimed that the court erred in refusing to instruct the jury on the law of circumstantial evidence. This claim is not supported by the record. Unless the evidence is wholly circumstantial, the defendant is not entitled, as a matter of right, to such an instruction. Star v. State, 9 Okla. Cr. 210, 131 P. 542; Price v. State, 9 Okla. Cr. 359, 131 P. 1102.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


author: DOYLE, J.

text:
    EVA GIBSON GRAHAM et al. v. STATE.
    No. A-5123.
    Opinion Filed June 27, 1925.
    (237 Pac. 462.)

      Carter & Carter, for plaintiffs in error.
    George F. Short, Atty. Gen., and Charles Hill Johns, Asst. Atty. Gen., for the State.
   DOYLE, J.

In the information in this case, filed in the county court of Okmulgee county, on July 28, 1923, Eva Gibson Graham and Charlie Cheshire were charged with unlawfully transporting intoxicating liquors from some place unknown to informant to the corner of North Okmulgee and Fairfax avenues, in the city of Okmulgee. On the trial the jury returned verdicts finding the defendants guilty and fixing their punishment as follows: Eva Gibson Graham, confinement in the county jail for 60 days, and a fine of $250; Charlie Cheshire at confinement in the county jail for 30 days and a fine of $50.

To reverse the judgments rendered on the verdict they appeal and assign as error that the trial court erred in admitting incompetent evidence over the objections of the defendants, and in refusing to strike such evidence, and in overruling the demurrer of the defendants to the evidence of the state at the close of the state’s case, and that the verdict of the jury is contrary to both the law and the evidence, and not supported by either.

E. J. Scott, policeman, testified that he was in a car with Elmer Cole, another peace officer, near the corner of Okmulgee and Fairfax avenues about 2 p. m., and saw the defendants go north from Okmulgee on the paved highway —the man was driving the car. That witness “had a suspicion that they were going after liquor.” In about 30 minutes they returned, and when he saw them coming he started the motor, and they sat there waiting for them to come up. That he blew his wdiistle, and commanded them to stop, and they started running through the fair grounds. “We followed them, when they started to breaking we started to shooting, and that stopped them. We searched the car and did not find anything.” That he picked up a broken quart bottle, and “there were two or three spoons full of corn whisky where it was broken.”

The defendants moved to strike all the evidence, for the reason that he arrested them without a warrant; that it was an arrest by force, without authority of law, and search made in violation of their constitutional rights. The motion was overruled; exception reserved.

It is argued that the arrest of the defendants and search of their persons and of the car was without sufficient warrant in law, and therefore unlawful, and evidence obtained in this way is inadmissible.

The constitutional provisions particularly relied upon by the defendants are as follows:

“No person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided.” Const. art. 2, § 21.
“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures, shall not be violated.” Const. art. 2, § 30.

These constitutional provisions were under consideration in the case of Keith v. State, 30 Okla. Cr. 168, 235 P. 631. In the opinion it is said:

“The offense charged against the defendant is punishable only by a fine and imprisonment in the county jail, and therefore is not a felony under our statute. Section 1503. Consequently the officers could not lawfully arrest him therefor without a warrant, unless the offense was committed or attempted in their presence.
“It cannot be said that the criminal offense is committed in the presence of an officer, unless the acts constituting the offense become known to him at the time they are committed, through his sense of sight or through other senses; although a person may actually be committing a criminal offense, it is. not committed in the presence of an officer within the meaning of the statute, if the officer does not know it. And where the officer could not observe and become cognizant of the act constituting the offense by the use of his senses, it could not be committed in his presence so as to authorize an arrest without a warrant.”

The fact that the defendants were transporting intoxicating liquor not being discoverable without a search, the offense of transporting it was not committed in the presence of the officers, and they had no authority to arrest the defendants therefor without a warrant.

It is the well-settled doctrine in this state that no search of the person or seizure of any article found thereon can be made on mere suspicion that the person is violating the prohibitory liquor laws in having intoxicating liquor in his possession, or without a search warrant, unless and until the alleged offender is in custody under a warrant of arrest, or shall be lawfully arrested without a warrant as authorized by law. Keith v. State, 30 Okla. Cr. 168, 235 P. 631, and cases cited. But it is argued that the arrest in this case was lawful because the officers saw the bottle thrown from the car before they arrested the defendants, citing McAdams v. State, 30 Okla. Cr. 207, 235 P. 241. In this case the information charges transportation from a place unknown to the place where the officers attempted to arrest the defendant, and it was for that they were arrested.

The state admits that the attempted arrest was unlawful. The intimidation and the felonious assault made by the officers upon the defendants by shooting at them was unlawful, and in this way and by such lawless acts the arrest was accomplished and the evidence obtained.

In the case of Sharp v. U. S., 6 Okla. Cr. 350, 118 P. 675, this court held that—

“A peace officer in attempting to arrest a person for an offense less than a felony cannot shoot or kill, unless the offender resists to such an extent as to place the officer in danger of loss of life or great bodily harm.”

In the opinion it is said:

“It is the common belief that erroneously prevails among petty peace officers that, if an offender runs from an officer attempting his arrest for a misdemeanor and does not stop on being commanded to halt, the officer may lawfully shoot him. Officers should know and understand that they have no authority to resort to the use of fire arms or .dangerous weapons in making arrests for offenses other than felonies, unless the offender resists the arresting officer. In that event all force necessary to overcome his resistance may be employed.”

An officer seeking the enforcement of one law should not violate another in order to accomplish his purpose- Such conduct brings the administration of justice into disrepute, and tends to the subversion of peace and good order.

It is elementary that a confession of guilt obtained by duress is not admissible in evidence. The genius of our free institutions requires that the admissions of the accused shall not be used against him, unless made voluntarily.

However, if a confession is freely and voluntarily made, without duress or promise of reward, it is admissible against the defendant, so we see that the legality or illegality of the means employed to obtain the confession determines whether it may or may not be admitted.

“An unreasonable search is an examination or inspection without authority of law of one’s premises or person with a view to the discovery of stolen, contraband or illicit property, or for some evidence of guilt to be used in the prosecution of a criminal case.” 24 R. C. L. 717.

The admitted acts of the officers satisfy the call of this definition; that is, they acted without authority of law, no search warrant having been issued; and the unlawful arrest was for the sole purpose of obtaining evidence to be used in the prosecution of the defendants.

The two constitutional provisions here invoked are quite closely interwoven, and, generally, as in this case, that which is obtained by unlawful arrest and unlawful search is subsequently attempted to be used to incriminate him from whom so obtained; the one violation being but a preface to the other.

For the reasons stated, we are of opinion that the evidence objected to in this case was obtained by the officers without warrant of law, and the admission of the same constitutes a violation of the constitutional rights of the defendants under section 21 of the Bill of Eights.

The judgments of the lower court are therefore reversed and cause remanded, with directions to discharge the defendants.

BESSEY, P. J., and EDWAEDS, J., concur.


text:
    F. M. CONDRON et al. v. STATE.
    No. A-5103.
    Opinion Filed June 30, 1925.
    (237 Pac. 465.)

      Pardue & Davis, for plaintiffs in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiffs in error were convicted on a charge of unlawfully transporting intoxicating liquor along and upon the public road running from Brock to Wilson, in Carter county, and, in accordance with the verdict of the jury, they were each sentenced to pay a fine of $100 and be confined for 60 days in the county jail. To reverse the judgments rendered on the verdicts, they appeal.

The errors relied on for a reversal of the judgment are that the court erred in admitting evidence that was illegally obtained without a search warrant.

The evidence shows that D. Bell, deputy sheriff, stopped a service car on the highway between Wilson and Brock; that the defendant Condron, an insurance man, was driving the car, and the defendant Smith was riding with him; Harry Hanson was also in the car. As a witness for the state, he testified that the car was owned by John Condron, father of the defendant Condron, and that they stopped in a ravine and got this whisky, and were driving back, when they were stopped by Officer Bell, who searched the car.

Two or three witnesses testified that they knew the reputation of the defendants as to being law-abiding citizens, and that it was good.

It has been repeatedly held by this court that, where the offense is not a felony, an officer cannot arrest without a warrant, unless the offense was committed or attempted in his presence, and that, where the officer does not know of the act constituting the offense, it is not committed in his presence (Keith v. State, 30 Okla. Cr. 168, 23'5 P. 631) ; that, in a prosecution for unlawfully transporting intoxicating liquor, the defendant cannot be convicted upon evidence obtained by means of an unauthorized search and seizure (Foster v. State, 24 Okla. Cr. 36, 218 P. 898; Gore v. State, 24 Okla. Cr. 394, 218 P. 545).

The defendants’ conviction, having no sufficient foundation or support without use of evidence which had been unlawfully obtained, must be reversed.

The judgments reversed, and cause remanded, with direction to discharge the defendants.


author: PER CURIAM.

text:
    Ex parte WALTER SMITH et al.
    No. A-5625.
    Opinion Filed July 3, 1925.
    (237 Pac. 464.)
    L. A. Wallace, for petitioners.
   PER CURIAM.

The petitioners stand charged in the superior court of Okmulgee county with the murder of one Ingram. After the filing of the petition for a writ of habeas corpus here, this court ordered a rule to show cause why the writ should not issue, returnable July 1, 1925.

Upon the return day of the rule, the evidence on the part of the state, taken at the preliminary examination, supported by evidence taken on the return day of the rule, makes a prima facie showing of probable cause for believing that the petitioners are guilty of murder and are not entitled to bail.

In an application for bail in a homicide case, where the state has introduced evidence indicating that the accused is guilty of murder, the burden is upon the petitioners to make a counter showing of justification or self-defense. Ex parte Butler, 15 Okla. Cr. 111, 175 P. 132; Ex parte Garvin, 18 Okla. Cr. 17, 192 P. 363.

To show this the petitioner should take the stand at the preliminary hearing, or at the hearing on the application for bail, and submit to cross-examination, disclosing the nature of his defense. Ordinarily, ex parte affidavits are inadequate for this purpose.

Applying this uniform rule of practice to the case here, the showing made by the petitioners is insufficient, and bail is denied.


text:
    Ex parte CHARLES HOLDEN.
    No. A-5561.
    Opinion Filed July 2, 1925.
    (237 Pac. 622.)

      Moss & Keller, for petitioner.
    Charles Hill Johns, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

On the 11th day of March, 1918, the petitioner, Charles Holden, was convicted of manslaughter in the district court of Cleveland county, with his punishment fixed at confinement in the penitentiary for a term of four years. The petitioner sought to set aside this conviction in an appeal filed in this court. Pending this appeal the petitioner was released on bond, and on the 16th day of September, 1918, he pleaded guilty in the district court of Jackson county to a charge of manslaughter in the first degree, upon which plea the court rendered judgment assessing his punishment at imprisonment in the penitentiary for a term of 99 years. A little more than a year later petitioner dismissed his appeal from the conviction for the first offense, and a mandate was issued by this court, ordering the sheriff of Cleveland county to enforce the penalty assessed by the district court of that county. No action was taken to enforce this mandate, presumably because the petitioner was in the penitentiary for a term equivalent to the duration of his natural life.

In 1923 the Governor of this state issued the petitioner a parole, suspending the confinement imposed by the district court of Jackson county; and in 1924 the Acting Governor issued the petitioner a complete pardon for the offense for which he was serving sentence, whereupon petitioner was set at liberty by the warden of the penitentiary. On the 17th day of November, 1924, petitioner was again arrested and incarcerated in the penitentiary, upon authority of the mandate issued, ordering the enforcement of the penalty imposed by the Cleveland county district court, where he is now confined and serving such sentence.

The petitioner contends that after the issuance of the mandate by this court in the first conviction the two sentences ran concurrently, and that, since the petitioner has served more than six years in the penitentiary since the issuance of this mandate, he is now entitled to his liberty.

It was held by this court in Ex parte Alexander, 5 Okla. Cr. 196, 113 P. 993, that the time fixed for the execution of a sentence or the commencement of its execution is not one of its essential elements, * * * so that where the penalty is imprisonment the sentence may be satisfied only by the actual suffering of the imprisonment imposed, unless remitted by death or some legal authority. The court in that case held further that where a convicted defendant has not served his sentence he may be arrested and ordered into custody on the unexecuted judgment following the rule announced in Ex parte Eldridge, 3 Okla. Cr. 499, 106 P. 980, 27 L. R. A. (N. S.) 625, 139 Am. St. Rep. 967.

At the time of the commencement of the term of confinement prescribed in the second conviction the first had not commenced. Nor did the mere issuance of a commitment in the first put it in operation. The commitment would not so operate before its delivery to the warden of the penitentiary, and that was not until late in 1924, after the petitioner had been given his liberty upon the second conviction.

It seems to be the legislative policy of this state that all offenders shall suffer the penalty assessed according to the verdict and judgment of conviction, and where penalties are assessed in different cases, the statute, section 2774, Comp. Stat. 1921, provides:

“If the defendant shall have been convicted of two or more offenses, before judgment on either, the judgment may be that the imprisonment upon any one may commence at the expiration of the imprisonment upon any other of the offenses.”

Section 2782, Id., provides:

“If the judgment is for imprisonment in a state prison, the sheriff of the county or subdivision must, upon receipt of a certified copy thereof, take and deliver the defendant to the warden, superintendent or keeper of the state prison. He must also deliver to the warden or other proper officer a certified copy of the judgment and take from the warden or other proper officer a receipt for the defendant and make return thereof to the court.”

Section 2303, Id., provides:

“When any person is convicted of two or more crimes, before sentence has been pronounced upon him for either, the imprisonment to which he is sentenced upon the second or other subsequent conviction must commence at the termination of the first term of imprisonment to which he shall be adjudged or at the termination of the second or other subsequent term of imprisonment, as the case may be.”

Since it has been held by this court, in the Alexander and Eldridge Cases, supra, that the exact time of the commencement of the term of imprisonment is directory only, it would seem that, in any case, whether the sentences be in the same or different courts, they should never run concurrently. As to whether sentences should run concurrently in the absence of an express declaration in the judgment one way or another, the authorities are not in accord, due in part to statutory provisions. Annotations to 5 A. L. R. 380. Dickerson v. Perkins, 182 Iowa, 871, 166 N. W. 293, 5 A. L. R. 374; Zerbst v. Lyman, 255 F. 609, 5 A. L. R. 397; In re Walsh, 37 Neb. 454, 55 N. W. 1075; People ex rel. Newton v. Tombley, 228 N. Y. 33, 126 N. E. 255.

Impelled by the former holdings in this court in the Alexander and Eldridge Cases, the express and implied provisions of the statutes quoted, and what appears to be the better reasoning in the cases cited, we hold that the terms of the two sentences of imprisonment did not run concurrently, and that the petitioner will not be entitled to his liberty until after he has served the term of imprisonment imposed in the first conviction by the district court of Cleveland county, beginning after he obtained his liberty from the other sentence.

The writ is denied.

DOYLE and EDWARDS, JJ., concur.


text:
    TYREE GIDENS v. STATE.
    No. A-4667.
    Opinion Filed March 24, 1925.
    Rehearing Denied July 3, 1925.
    (236 Pac. 912.)

      Blanton, Osborn & Curtis, for plaintiff in error.
    The Attorney General and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

Plaintiff in error, Tyree Gidens, for convenience referred to as the defendant, was prosecuted by information for an assault with intent to kill by means of an open knife, under the provisions of section 1756, Comp. Stat. 1921.

The injured party was Jared Little, the prosecuting witness in the trial court. The state’s evidence shows that there was a community singing entertainment at the Oak Grove schoolhouse, where the defendant, the prosecuting witness, and many others had assembled. The prosecuting witness was a young man who had lived in that school district for years; the defendant was also a young man, 18 years old, a resident of an adjoining school district; the two were well acquainted with each other. There was evidence tending to show that the defendant was to some extent under the influence of intoxicating liquor, and was at that time in a belligerent mood.

About the time the singing started Jared Little was standing in front of the schoolhouse, in company with several other boys; the defendant approached, and with vile and abusive language, addressed to the group of boys, inquired whether any of them wanted to fight, to which question none of the boys made any answer. The defendant then walked away a few steps, and Jared Little was just about to go into the schoolhouse when the defendant accosted him and offered to whip him; Little told the defendant he did not want to fight him, whereupon the defendant hit Little on the chin with his fist; defendant then stepped back and drew a knife, with which he stabbed Little in the shoulder, inflicting a deep and dangerous wound about three inches long, penetrating the flesh so as to expose tfie veins and arteries, from which wound he bled profusely, and which required surgical attention and hospital care and treatment.

After this wound was inflicted Jared Little staggered away from the crowd and found a stick that had been a chair leg and came back toward the defendant; the defendant again struck at Little with the open knife, and Little in turn struck the defendant on the head with this stick, knocking him unconscious.

The defendant admits inflicting the wound with the knife, but says that the knife wound was not inflicted until after Jared Little had assaulted him with the stick, and that the wound was so inflicted in defendant’s necessary self-defense.

The charging part of the information is as follows:

“That Tyree Gidens, late of said county and within the jurisdiction of this court, did then and there unlawfully, willfully, feloniously, and intentionally and wrongfully strike, cut, stab, and wound one Jared Little with a deadly weapon,to-wit, an open pocket knife, then and there held in the hand of him, the said Tyree Gidens, with the intent then and there of him, the said Tyree Gidens, to kill the said Jared Little, against the peace and dignity of the state.”

The verdict of the jury was:

“We * * * do find * * * the defendant guilty as charged and assess his punishment at imprisonment in the state penitentiary for one year and one day.”

The sufficiency of the information was not challenged by demurrer, but before the introduction of the evidence the defendant objected to the introduction of any evidence, on the grounds that the information did not charge any public offense and that the information did not sufficiently charge the crime of assault with intent to kill.

The statute under which this prosecution is laid is section 1756, Comp. Stat. 1921, which reads as follows:

“Any person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of firearm, airgun 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 defendant contends that it was incumbent upon the state to allege in the information, not only that the knife was a deadly weapon, but that the information should also have stated the manner of its use, showing that it was such as was likely to produce death. In support of this claim defendant cites the cases of Wilcox v. State, 13 Okla. Cr. 599, 166 P. 74; Castleberry v. State, 26 Okla. Cr. 59, 221 P. 1044; Clemmons v. State, 8 Okla. Cr. 452, 128 P. 739. In the Castleberry Case there was no allegation that the knife used was a deadly weapon. In the Wilcox Case the information states that the assault was made with a dangerous weapon, to-wit, a claw hammer, without stating in what manner the claw hammer was used, which distinguishes it from this case, where the information states that the knife was a deadly weapon and that it was used to strike, cut, stab, and wound. The ¡Clemmons Case is not in point, for this court held the information in that case suificient, although the word battery was not used; in both the Clemmons Case and this case there are sufficient allegations to show a battery.

We therefore hold the information in the instant case sufficient, in the absence of a demurrer. If the defendant desired to be more fully apprised of the details of the charge, he should have challenged the sufficiency of the information before announcing ready for trial and before he was placed in jeopardy.

The defendant next complains that the court erred in refusing to instruct the jury upon the law of assault and battery as being an included offense.

Section 2739, Comp. Stat. 1921, provides:

“Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty.”

In this connection it has been held that an assault with intent to kill, under section 1756, supra, may include and upon proper proof support a verdict for the offense defined by section 1764, which defines an assault with intent to do bodily harm with a sharp or dangerous weapon, though without intent to kill, and may also include a simple assault or a naked assault and battery, dependent upon the proof adduced at the trial. Clemmons v. State, 8 Okla. Cr. 452, 128 P. 739: Castleberry v. State, 26 Okla. Cr. 59, 221 P. 1044; Vinyard v. State, 22 Okla. Cr. 76, 209 P. 783; Russell v. State, 9 Okla. Cr. 692, 133 P. 475.

Whether an instruction upon all the minor degrees of the offense should be given depends upon the evidence, and where, as in this case, the evidence shows that the assault was made with a sharp knife, inflicting a wound that almost proved fatal, having none of the attributes of a simple assault or of a naked assault and battery, an instruction pertaining to simple assault or mere assault and battery is unnecessary.

True, there was evidence showing a battery with defendant’s fists, but that was incidental' to and a part of the affray in which the evidence on both sides shows a cutting with a sharp knife and the infliction of a dangerous wound. Under such circumstances it would not be proper to split the real issue into all its component parts or constituent elements and give an instruction upon each.

In this case the accused was guilty of an assault with intent to kill, under section 1756, supra, or he was guilty of the included offense of an assault and battery with a sharp and dangerous weapon, under section 1764, or he was guilty of nothing. The instructions of the court fairly stated the law in the case, though not in every instance in the language submitted by the defendant. At the trial the defendant’s defense was a claim that he made the assault in his necessary self-defense, and that issue was properly covered by an appropriate instruction.

The defendant says that the verdict, “guilty as charged,” was indefinite, because the accused could not tell whether he was found guilty on the main charge, or found guilty of the included offense, but, since the defendant made no objection to the form of the verdict at the time it was rendered, the objection on a motion in arrest of judgment and in the motion for a new trial came too late. The objection should have been made in time to permit the jury to reform its verdict before being discharged.

It is fair to assume that a verdict of “guilty as charged” in this case denotes guilty of an assault with intent to kill. Be that as it may, the punishment assessed by the jury was well towards the minimum as provided in both statutes.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    STATE v. H. B. DANVILLE.
    No. A-4874.
    Opinion Filed July 3, 1925.
    (237 Pac. 468.)

      The Attorney General and I. 0. Cornell, Co. Atty., for the State.
    J. W. Clark and J. B. McManus, defendant in error.
   PER CURIAM.

In the information in this case H. B. Danville was charged with obtaining a draft in the sum of $6,000 from S. L. Stein, as agent for Charles E. Schaff, as receiver of the M. K. & T. Railway Company, under false pretenses. Upon the trial exceptions were taken by the county attorney to certain rulings of the trial court.

At the close of the evidence the defendant moved for a directed verdict of acquittal, on the ground that the evidence was insufficient to support a conviction. Which motion was sustained, and the court advised the jury to return a verdict of not guilty, which verdict was duly returned. To which ruling of the court the state excepted, and thereupon the defendant was discharged. Exceptions were reserved by the state.

The state appealed on questions reserved by filing in this court on October 5, 1925, petition in error with case-made. No brief has been filed.

In cases of this kind, where no brief is filed or oral argument made we do not deem it the duty of this court to investigate the record.

The state’s appeal in this case apparently having been abandoned, the appeal herein is dismissed.


author: EDWARDS, J.

text:
    WATIE ROSS v. STATE.
    No. A-4854.
    Opinion Filed July 3, 1925.
    (237 Pac. 469.)

      Leahy & Brewster, and D. G. Elliott, for plaintiff in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, for convenience and brevity, will be referred to as defendant, as in the court below.

On the 9th day of February, 1922, the Bank of Adair was held up and robbed by three persons, who drove up near the bank in an automobile, and two of them went into the bank, which was in charge of Faye Godsey, assistant cashier. The two who entered the bank pointed a pistol at her and ordered her to “stick ’em up.” One of them went behind the rail, ordered her to step out of the way, and she did so, and sat down in a chair. They then took the money from the tray, inquired if there was anything in the safe, and, on being told there was, one of them went outside the rail with her and took the money out of the safe, during which time one of the robbers kept her covered with a pistol. When she had given them the money out of the safe, they ordered her to go into the vault, and they then shut the door and left. $2,100 was taken from the bank. The defense was an alibi.

Only two assignments of error are urged: First, that the court erred in excluding competent and material evidence offered by defendant. Second, that the testimony is insufficient to support the verdict for the reason that the identification of defendant was not definite, and there was no proof of the use of force or fear. These assignments of error will be considered as presented.

The first assignment of error is predicated upon the exclusion by the trial court of what is referred to as Exhibit I. As a part of his alibi, the defendant sought to show that he was physically unable to have participated in the robbery; that he had sustained an injury to one of his legs and on the day prior to the robbery had an X-ray picture taken; that his physician had furnished him a statement or memorandum for services rendered, the last date of which was on the day preceding the robbery. The defendant testified he received this from the bookkeeper of his physician, and had the statement marked Exhibit I, offered in evidence, and which, on objection, was excluded, the contention being that, if it had been admitted it would have strengthened the testimony of the defendant, citing: First Nat. Bank of Enid v. Yeoman, 14 Okla. Cr. 626, 78 P. 388; Boone v. State, 15 Okla. Cr. 29, 175 P. 61.

The record, hoAvever, does not contain Exhibit I. We are not able to tell whether or not it was admissible in evidence. It is well settled that, when an offer of evidence is made and excluded by the trial court, if the defendant desires to preserve a record for appeal, he should state, in substance, what the witness would testify to should he be allowed to testify. Robinson v. State, 8 Okla. Cr. 673, 130 P. 124, states the rule in this wise:

“When objections to a question are sustained, if it is intended to reserve the question as to the competency of the testimony sought to be introduced for review upon appeal, an offer of what the testimony of the witness would have been, had he been permitted to answer, must be made.”

It is obvious that, where the offer is in writing, it should be incorporated in the case-made so that the appellate court may pass on its admissibility. When this is not done, the question is not properly preserved.

Upon the second assignment, i. e., the insufficiency of the evidence, it is first argued that the defendant was not sufficiently identified. An examination of the record discloses that Faye Oodsey, the assistant cashier in charge of the bank, identified the defendant as one of the persons in the bank. J. I. Wilbur, operating a shoe and leather shop near the bank, also identified the defendant, and Emma Wilbur, his 9 year old daughter, while in some particulars conflicting with the testimony of her father, testified that one of the men that got out of the car walked! with a limp. This was a particularly strong circumstance against the defendant, as under his testimony he had hurt his leg and walked with a limp.

The rule of this court is that, where there is legal evidence from which the jury may logically find the guilt of a defendant, the verdict of the jury will not be disturbed. The questions of fact, the weight of the evidence, and the credibility of the witnesses are matters for the determination of the jury.

The defendant was prosecuted under sections 1784, 1787, and 1793, Comp. St. 1921, as follows:

“1784. Robbery is a wrongful taking of personal property in the possession of another from his person or immediate presence and against his will, accomplished by means of force or fear.”
“1787. The fear which constitutes robbery may be either:
“First. The fear of an unlawful injury, immediate or future, to the person or property of the person robbed or of any relative of his, or member of his family; or,
“Second. The fear of an immediate and unlawful injury to the person or property of anyone in the company' of the person robbed, at the time of the robbery.”
“1798. Whenever two or more persons conjointly commit a robbery or where the whole number of persons conjointly committing a robbery and persons present and aiding such robbery amount to two or more, each and either of such persons is punishable by imprisonment in the penitentiary for not less than five years nor more than fifty years.”

It is here contended that the testimony is insufficient to support the verdict, for the reason that there is no sufficient proof of force or fear in the taking of the money. That there was no force employed, and, as the witness Faye Godsey testified that the two men who came into the bank told her that they were not going to hurt her, did not threaten her, and as she was not afraid of them, there is not a sufficient proof of fear. This witness testified that she was not afraid of the men so long as she did what they told her to do, and that she turned the money over to them because their guns were in evidence. This, defendant contends, may prove a case of larceny, but not robbery, citing. Monaghan v. State, 10 Okla. Cr. 89, 134 P. 77, 46 L. R. A. (N. S.) 1149’, and Nelson v. State, 11 Okla. Cr. 259, 145 P. 315. This witness displayed great poise and coolness under the circumstances. She apparently was imbued with the idea that the persons who came into the bank, pointing a gun at her, with the command “stick ’em up,” were after the money in the bank, and that if they could procure the money there would be no reason to hurt her. This is common sense. She also apparently realized that, if she attempted to resist, violence sufficient to overcome her resistance would be made. What fear or degree of fear is sufficient to constitute robbery is not a new question. It has been held that, if there is an assault which would furnish a reasonable ground for fear, the robbery is complete. First Bishop (9th Ed.) § 438 (2); Tones v. State, 48 Tex. Cr. R. 363, 88 S. W. 217, 1 L. R. A. (N. S.) 1024, 122 Am. St. Rep. 759, 13 Ann. Cas. 455.

In State v. Lamb, 141 Mo. 298, 42 S. W. 827, it is held:

“Where an indictment charges a robbery to have been done violently and against the will, actual fear on the part of the .person from whom the property was taken need not be proved, but will be presumed.”

See, also, State v. Kennedy, 154 Mo. 268, 55 S. W. 293.

In this case it was not essential to constitute robbery .that the custodian of the money taken become hysterical and believe that she would meet death if she failed to immediately respond to the demands made. It is sufficient if the demand, with the display of firearms as shown by the evidence, caused her to stand aside and permit the money in her custody to be taken in the manner disclosed by the evidence. The delivery or taking the money is not rendered voluntary because the witness did not see fit to endanger her safety by attempting to resist. A threat may be made and be just as potent by some act or gesture as if made by words; and fear in a legal sense may result from such a threat, although the person threatened may maintain composure. A defendant will hardly be heard to say that, by holding up another at the point of a gun, and taking property from his person or immediate presence, he is not guilty of robbery, merely because the person robbed was able to exercise self-control.

The case is affirmed.

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


text:
    HAWKINS UNDERHILL v. STATE.
    No. A-5062.
    Opinion Filed July 3, 1925.
    (237 Pac. 628.)
    Ralph Rawlings and Homer H. Colbert, for plaintiff in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of the county court of Murray county, rendered on the verdict of a jury finding the defendant guilty of unlawful possession of intoxicating liquor. The sentence was confinement for 30 days in the county jail, and a fine of $100.

The undisputed facts are that the chief of police of the city of Sulphur and his assistant saw the defendant in Platt National Park carrying a half gallon bottle which contained corn whisky. The defendant, on seeing the officers, broke the bottle. There was also evidence tending to show an intent to sell the same.

At the close of the state’s evidence the defendant moved to dismiss the action on the grounds that the alleged crime as charged in the information was committed within the confines of Platt National Park, which is under the exclusive jurisdiction of the federal government and the federal courts, and not within the jurisdiction of the county court of Murray county. The motion was overruled. The question of jurisdiction was again raised by motion for a new trial.

The alleged want of jurisdiction in the trial court to try and punish the defendant is assigned as error and relied on for a reversal.

Oklahoma was admitted into the Union “on an equal footing with the original states.” On her admission she at once became entitled to and possessed all the rights of dominion and sovereignty which belonged to the original states, subject like them only to the Constitution of the United States.

Under the provisions of Act of July 1, 1902, entitled “An act to ratify and confirm an agreement with the Choctaw and Chickasaw Tribes of Indians, and for other purposes” (32 Stat. 641) the two tribes ceded and conveyed to the United States certain lands in the Chickasaw Nation, to be known as the Sulphur Springs Reservation, and providing, “that in the future the lands and improvements herein mentioned shall be conveyed by the United States to such Territorial or State Organization as may exist at the time when such conveyance is made.” 32 Stat. 655 (8 Fed. St. Ann. 987 [U. S. Comp. St. § 5243]).

The Sulphur Springs Reservation was designated the “Platt National Park” by resolution of June 29, 1906 (34 Stat. 837).

When Oklahoma was admitted into the Union, the federal government reserved the right of exclusive control and jurisdiction over the Sulphur Springs Reservation. The part of the Enabling Act (section 7) relating thereto is as follows:

“Provided, that nothing in this act contained shall repeal or affect any act of Congress relating to the Sulphur Springs Reservation as now defined or as may be hereafter defined or extended, or the power of the United States over it or any other lands embraced in the state hereafter set aside by Congress as a national park, game preserve, or for the preservation of objects of archseological or ethnological interest; and nothing contained in this act shall interfere with the rights and ownership of the United States in any land hereafter set aside by Congress as national park, game preserve, or other reservation, or in the said Sulphur Springs Reservation, as it now is or may be hereafter defined or extended by law; but exclusive legislation, in all cases whatsoever, shall be exercised by the United States, which shall have exclusive control and jurisdiction over the same; but nothing in this proviso contained shall be construed to prevent the service within said Sulphur Springs Reservation or national parks, game preserves, and other reservations hereafter established by law, of civil and criminal processes lawfully issued by the authority of said state, and said state shall not be entitled to select indemnity school lands for the thirteenth, sixteenth, thirty-third, and thirty-sixth sections that may be embraced within the metes and bounds of the national park, game preserve, and other reservation or the said Sulphur Springs Reservation, as now defined or may be hereafter defined.” 34 Stat. 272 (8 Fed. St. Ann. 989 [U. S. Comp. St. § 5245]).

The Constitution of Oklahoma acknowledges the sovereignty of the United States over the places named or referred to in the Enabling Act. The state through its legislative assembly has disclaimed any right, title or interest in and to the lands now embraced in what is known as the Platt National Park, adjoining the city of Sulphur in the county of Murray. Section 8184, C. S. 1921, effective Jan. 27, 1911.

The laws above quoted show beyond all doubt that the legislative power of Congress is exclusive over lands within the state of Oklahoma, set aside by Congress as a National Park, game preserve or other reservation, and that the United States government has reserved exclusive control and jurisdiction over the same, leaving to the state only the right to serve civil and criminal process, issued under the authority of the state, on any person amenable to the same within said Sulphur Springs Reservation, national parks, game preserves, and other reservations.

Courts take judicial cognizance of the territorial extent of the sovereignty and jurisdiction exercised by their own government, and the courts of this state will take judicial notice of the fact that the Platt National Park is owned by the United States government, with exclusive control and jurisdiction, and that crimes committed within its boundaries are beyond the jurisdiction of the state courts.

By article 1, § 8, of the Constitution of the United States, it is provided that:

“The Congress shall have power * * * to exercise exclusive legislation in all cases whatsoever * * * over all places purchased by the consent of the Legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.”

It is well settled that there must be an actual purchase for the purpose by the United States, and consent by the legislative authority of the state, as conditions precedent to the operation of this provision; that thereupon all jurisdiction is ceded, and passes to the general government, and, aside from an unqualified consent, no declaration or enactment of cession upon the part of the state is requisite or material; that any title of the United States, acquired otherwise within a state, however long continued, and for whatever purpose employed, confers only the right of proprietorship, and is not within the terms of this provision; that therefore any exclusion of state interference must depend upon powers and rights arising outside of that provision. Ft. Leavenworth R. Co. v. Lowe, 114 U. S. 525, 5 S. Ct. 995, 29 L. Ed. 264.

In the opinion by Mr. Justice Field, we find this language :

“The reservation which has usually accompanied the consent of the states that civil and criminal process of the state courts may be served in the places purchased, is not considered as interfering in any respect with the supremacy of the United States over them; but is admitted to prevent them from becoming an asylum for fugitives from justice.”

In the case of In re Kelly (C. C.) 71 F. 545, it is said:

“The purchase of lands in a state by the general government, with legislative consent, does not, ipso facto, confer upon the general government exclusive jurisdiction, unless th*fe purchase is for a fort or for some other purpose distinctly named in article 1, § 8, of the Constitution; and in order that exclusive jurisdiction may be acquired over the land taken for any other purpose, the act providing therefor and calling for the consent must unequivocally declare that exclusive jurisdiction is intended and necessary, or such necessity must be manifest from the purpose of the act.”

And holding, in substance, that a state has jurisdiction of an offense committed at a national soldiers’ home., since the acts of Congress provided for these homes ¿O' not contemplate works or establishments for the public safety or defense, or for military purposes and contain no declaration of the necessity of exclusive legislation over the lands used for homes, nor any provision incompatible with the laws of the locality.

In Lasher v. State, 80 Tex. App. 387, 17 S. W. 1064, 28 Am. St. Rep. 922, it was held that:

“In a cession to the United States by the state of land for a military post, a reservation of ‘concurrent jurisdiction’ to serve state civil and criminal process in the ceded place does not defeat the exclusive jurisdiction of the United States over the ceded place, * * * and the state courts have no jurisdiction of crimes committed therein.”

See, also, Baker v. State, 47 Tex. Cr. R. 482, 83 S. W. 1122, 122 Am. St. Rep. 703, 11 Ann. Cas. 751; U. S. v. Meagher (C. C.) 37 F. 875; U. S. v. Cornell, 2 Mason 60, Fed. Cas. No. 14867.

A different rule applies with reference to the jurisdiction of state courts of offenses committed on Indian reservations from that which obtains with reference to military reservations. Indian reservations are not specifically enumerated or named in the provision of the Constitution of the 'United States, above referred to, wherein Congress retains absolute jurisdiction over certain lands and places, and the federal courts have uniformly held:

“That where a state was admitted into the Union, and the Enabling Act contained no exclusion of jurisdiction as to crimes committed on an Indian reservation by others than Indians or against Indians, the state courts were vested with jurisdiction to try and punish such crimes.” U. S. v. McBratney, 104 U. S. 621, 26 L. Ed. 869; Draper v. U. S., 164 U. S. 240, 17 S. Ct. 107, 41 L. Ed. 419, and cases there cited; Ward v. Race Horse, 163 U. S. 504, 16 S. Ct. 1076, 41 L. Ed. 244; State v. Tully, 31 Mont. 365, 78 P. 760, 3 Ann. Cas. 824.

See, also, Pablo v. People, 23 Colo. 134, 46 P. 636, 37 L. R. A. 636; State v. Doxtater, 47 Wia. 278, 2 N. W. 439.

We may observe also that, under Act of Congress, approved March 4, 1909 (Fed. St. Ann. 1909, Supp. 485 [U. S. Comp. St. § 10462]), modifying, amending, and revising the penal laws of the United States, and effective January 1, 1910, any act which is not specifically made an offense by the laws of the United States, but which is an offense under the laws of the state wherein committed, is also an offense under the laws of the United States, and punishable by the same penalties which are inflicted under the laws of the state. In the language of Mr. Chief Justice White:

“Where no law of the United States has expressly provided for the punishment of offenses committed on reservations, all acts done on such reservations which are made criminal by the laws of the several states are left to be punished under the applicable state statutes.” U. S. v. Press Publishing Co., 219 U. S. 1, 31 S. Ct. 212, 55 L. Ed. 65, 21 Ann. Cas. 942.

It follows from what has been said that, where a criminal offense is committed within the boundaries of Platt National Park, the federal courts have jurisdiction of a prosecution therefor to the exclusion of the state courts.

The judgment of the lower court is reversed and the case remanded, with direction to dismiss.

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


text:
    F. J. STUCKI et ux. v. OKLAHOMA CITY.
    No. A-3885.
    Opinion Filed Jan. 13, 1923.
    Rehearing Denied July 3, 1925.
    (236 Pac. 990.)

      Robert W. Maupin, for plaintiffs in error.
    Paul McCarthy, for defendant in error.
   PER CURIAM.

F. J. Stucki and Mrs. F. J. Stucki were convicted in the municipal court of Oklahoma City, Okla., of the offense of running a disorderly house in violation of the city ordinance, and were fined the sum of $19 and costs in the sum of $1.

The appeal was lodged in this court on November 29, 1920. It appears from the case-made that the judgment against each defendant was on the 1st day of July, 1920, satisfied by the payment in full of the fine and costs as evidenced by the return of C. T. Linville, chief of police, to the mittimus issued, in each case, on the judgment.

Where the judgment below has been satisfied, all questions become moot, and the appeal will be dismissed. Duncan v. Ratliff, 63 Okla. 19, 161 P. 1174.

For the reasons stated, the appeal as to each defendant is hereby dismissed.


text:
    Ex parte THEODORE WILLIAMS.
    No. A-5646.
    Opinion Filed July 3, 1925.
    (237 Pac. 626.)
    John B. Ogden, for petitioner.
   PER CURIAM.

On the 6th day of May, 1925, the petitioner was arrested and placed in jail in Carter county upon a warrant charging the larceny of chickens. On the 13th of May, the petitioner was brought before the county court sitting as an examining magistrate, where he waived arraignment and pleaded not guilty and waived an examining trial. Soon after the county attorney of Carter county filed an information in the district court, charging the petitioner with the crime of larceny. The petitioner was unable to give the bail designated by the court, and since that time has been and now is confined in the county jail of Carter county to await trial on the merits.

The petitioner now claims that he is entitled to his liberty, because since the incarceration of petitioner there has been held a jury term of court in division No. 1 and in division No. 2 of the district court of Carter county, in which civil and criminal cases were tried, and that the jury has been discharged in each of said divisions, and that no other jury will be impaneled until the coming September term. Upon this showing, the petitioner applied to one of the district judges of Carter county for release by habeas corpus, which application was by the court denied. The petition on its face ¿hows that the May term of the district court for Carter county has not yet expired. Section 2913, Comp. Stat. 1921, provides:

“If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application^ is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.”

It was held, in the case of Eubanks v. Cole, 4 Okla. Cr. 25, 109 P. 736, that the next term of court, within the meaning of this section, is the next term of court after the accusation is filed; and, if the accusation be filed during a term, the next term means the next ensuing term.

The facts in this case show that no regular term has expired in the district court since the filing of the information ; it is apparent that there has therefore been no “next term” within the meaning of the statute, or within the rule announced in the Eubanks Case.

The demurrer of the Attorney General is sustained, and the cause dismissed.


text:
    DAVID NOWABBI v. STATE.
    No. A-5151.
    Opinion Filed July 3, 1925.
    (237 Pac. 868.)

      J. H. Gernert, and Warren & Welch, for plaintiff in error.
    George F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error will be referred to as defendant, as in the court below.

This is a companion case to Cooper v. State, 31 Okla. Cr. 165, 237 P. 865, just decided. The defendant was jointly charged with Nelson Cooper of murder of Davidson Houston, a severance had, and he was convicted, sentenced to life imprisonment, and duly appeals.

The assignments of error argued in the brief may be summarized as follows: First, insufficiency of the information and error of the court in refusing to require the state to elect the theory on which it would rely; second, error of the court in permitting the jury to separate before final submission of the case; third, error of the court in admitting in evidence a confession of the defendant; fourth, error of the court in refusing to give certain instructions requested by defendant. These assignments will be considered in the order named.

Upon the first assignment, which goes to the sufficiency of the information, it appears from the record that the information is in the usual form, jointly charging Nelson Cooper and David Nowabbi with murder. The defendant argues that this is insufficient, since he is unable to determine whether defendant shot and killed the deceased, or whether 'Cooper shot and killed the deceased, aided and abetted by the defendant; that is, it is not shown in whose hand the weapon that caused death was held, and that upon the application made by the defendant at the beginning of the trial the court should have required the state to elect upon which theory it would rely, and apprise the defendant of what he was to meet. We think that section 2574, Comp. St. 1921, renders the contention untenable. This section is:

“The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abrogated, and all persons concerned in the commission of a felony, whether, they directly commit the act constituting the offense, or aid and abet in its commission, though not present, must be prosecuted, tried and punished as principals, and no additional facts need be alleged in any indictment or information against such an accessory than are required in an indictment or information against his principal.”

Upon the second assignment, that the court permitted the jury to separate, from the record it appears that during the course of the trial and before the final submission of the case to the jury at intervals there were recesses in which the jury were not held together, but were permitted to separate. Counsel for defendant requested the court to have the jury held together, and suggested that a trial of the codefendant had been had upon the same charge, and that to permit the jury to mingle with the public that they would likely hear the case against the defendant or that of Cooper, his codefendant, discussed. The court denied the request. Upon the return of the jury the counsel for defendant requested the court to interrogate them as to whether they had heard the case discussed, which the court declined to do, and the following took place:

“Mr. Welch: Defendant excepts, and offers proof in support of this motion.
“By the Court: I refuse to let you show it by anybody except members of the jury.
“Mr. Welch: Defendant excepts.”

The statute in reference to segregation of the jury during the trial (section 2716, Comp. St. 1921) is as follows:

“The jurors sworn to try an indictment or information, may, at any time before the submission of the cause to the jury, in the discretion of the court, be permitted to separate, or to be kept in charge of proper officers. The officers must be sworn to keep the jurors together until the next meeting of the court, to suifer no person to speak to or communicate with them, nor to do so themselves, on any subject connected with the trial, and to return them into court at the next meeting thereof.”

It will be seen from this statute that it is discretionary with the court whether or not the jury shall be held together before the case is finally submitted to it. This statute has been considered by this court in the following cases: Bilton v. Ter., 1 Okla. Cr. 566, 99 P. 163; Sample v. State, 3 Okla. Cr. 432, 106 P. 557; Chance v. State, 5 Okla. Cr. 194, 113 P. 996; Armstrong v. State, 2 Okla. Cr. 567, 103 P. 658, 24 L. R. A. (N. S.) 776; Selstrom v. State, 7 Okla. Cr. 345, 123 P. 557; Burns v. State, 8 Okla. Cr. 554, 129 P. 657; Weatherholt v. State, 9 Okla. Cr. 161, 131 P. 185; Horn v. State, 13 Okla. Cr. 354, 164 P. 683, and numerous others. From these various cases the law is settled that a trial court may abuse its discretion in permitting a separation even before a case is finally submitted to the jury. But, where a separation is permitted prior to the final submission of the case, the burden is on the defendant to show that prejudice resulted. Armstrong v. State, supra; Burns v. State, supra; Horn v. State, supra.

After the case is finally submitted to the jury, if they are permitted to separate, the presumption is that the separation was prejudicial, and in such case a judgment of guilty should be reversed, unless the state shall satisfactorily show that the defendant was not prejudiced thereby. Chance v. State, supra; Horn v. State, supra.

In this case we think the trial court manifestly abused its discretion. We fail to see why, at the suggestion and request of counsel for defendant, he should not have had the jury held together in charge of a bailiff.

This court, in the case of Horn v. State, supra, said:

. “There is no doubt but that the trial court should exercise sound judicial discretion in a capital case by granting the request of either party to place the jury in charge of a sworn officer during the progress of the trial.”

But, while this is an abuse of discretion, it is, we think, not necessarily reversible, in the absence of any showing of prejudice to the defendant. It does not appear that any juror heard the case mentioned or that any person outside the jury box talked or attempted to talk about the case in the presence of any juror. The court ruled correctly in declining to interrogate the jury during the course of the trial as to whether or not they heard the case talked about during any recess and separation of the jury. It is not proper that an investigation should be held with or in the Shearing of the jury during the course of the trial or that .any showing by or in the hearing of the jury be had. The .statement of the trial court that he would permit such showing only by members of the jury should have gone •further, and prohibited any showing in the presence or involving the jury at that time. The proper time for such showing was upon the motion for a new trial, where any matter affecting the verdict might have been shown by oral evidence or on affidavit. If upon such proceeding the trial court had declined to permit counsel to introduce evidence in support of his showing of prejudice, an offer of proof could have been made and the record preserved for review. This action of the trial court is assigned as error in the motion for new trial. But it is not said in such motion that the defendant was prejudiced by the separation of the jury — no affidavits or offer of oral evidence in support of such assignment is tendered. If any showing of misconduct or any act of or in the presence or hearing of any juror such as would likely influence any member of the panel appeared in the record, we would promptly reverse this case. The presumption is that the jury acted in accordance with their oath, and, in case of separation of the jury before final submission, the defendant must show prejudice. He has not done so nor attempted to do so; so under the facts here, the error is not reversible.

Upon the third assignment, which goes to the admission of the confession of the defendant in evidence, what was said in the case of Cooper v. State, companion to this, first mentioned, is applicable here. In the trial of this case, upon offer of the confession in evidence of the state, the defendant objected, and a preliminary hearing on its admissibility had before the court. The defendant gave some testimony on this point. The court then proceeded to question the defendant, and, upon objection, the court ruled that for the purpose of touching the admissibility, and as aiding the court, it was proper to inquire somewhat fully into the confession and in reference to the crime itself. Thereupon the defendant was called from the stand, and the testimony given by him withdrawn and stricken, and it was agreed that the same was not to be considered. This seemed to be agreeable to both the state and the defendant and to the trial court. The voluntary character of the confession and the understanding of the defendant at the time it was made is in large part undisputed, and under the holding announced in the Cooper Case, supra, the confession was admissible.

Finally it is contended that the court erred in failing to give the defendant’s requested instruction No. 2, which is to the effect that the jury might consider the age, education, experience, étc., of the defendant in determining whether his confession was voluntary or not; also error in failing to give requested instruction No. 4, which is to the same effect, touching the ability of the defendant to understand the English language.

The court in its charge No. 6 cautioned the jury that a confession should be carefully scrutinized and received with great caution, and, unless they find that the same was freely and voluntarily made, without any inducement, threat, or intimidation, should be disregarded, which was fully as favorable to the defendant as the law warranted. This instruction covered substantially the matters in defendant’s requests Nos. 2 and 4.

Complaint is made of the failure to give requested instruction No. 9. This goes to the duty of a peace officer upon the arrest of a defendant to take him before a justice of the peace. This is a matter, however, with which the trial jury were not concerned, and the defendant was not entitled to have this instruction given. The instructions fairly and impartially covered the issues, and it was not necessary to give instructions emphasizing any particular phase of the case.

Error is also argued on the failure of the court to give requested instruction No. 10 to the effect that, if the jury find that the defendant and Cooper conspired together to rob the deceased Houston, the defendant would not be guilty of murder. There was no sufficient evidence to warrant the giving of such instruction, and its refusal was not error.

Upon an examination of the entire record it appears that, with the exception of the failure of the trial court to hold the jury together on request of the defendant during the course of the trial, there was no error, and that the error on this matter is not reversible.

The case is affirmed.

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


text:
    NELSON COOPER v. STATE.
    No. A-5153.
    Opinion Filed July 3, 1925.
    (237 Pac. 865.)
    Warren & Welch, T. W. Hunter, and R. C. Drake, for plaintiff in error.
    George F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   EDWARDS, J.

For brevity and convenience the plaintiff in error will be referred to as defendant as in the court below.

On the 23d day of April, 1923, Davidson Houston was shot and killed. Thereafter the defendant, Nelson Cooper, and David Nowabbi, both full-blood Choctaw Indians, were arrested, charged with the murder of Houston. A joint information was filed against them, and a severance had. This defendant was convicted of murder, and sentenced to life imprisonment, and duly appealed.

The only question argued in the brief is the admission of a confession of the defendant made in the presence of the sheriff, county attorney, and others, soon after the arrest. This confession, it is contended, was not voluntary, but was obtained by promises and therefore inadmissible. It was reduced to writing, and signed by the defendant. The defendant did not testify, but rests his case upon this one question. From the record it appears that the sheriff talked with the defendant the next morning after he was placed in jail; told him in substance that he was sorry for him, but that they had a chain of evidence which defendant could not get by; and advised him to tell the truth. That he was interested in him because defendant was a Choctaw, and he (the sheriff) had married a Choctaw woman; that he might ask for leniency, but he could promise him nothing. The defendant then asked for the county attorney, and said, “I want to tell the truth; I am going to tell all.” That the county attorney was called, and informed the defendant that what he might say would be used against him. That the defendant talked to the county attorney at some length, who took down the statement, and after it was written gave it to him to read. He examined each page, made a correction at one place, said it was true, and signed it. Before the admission of the confession the defendant testified before the court, in the absence of the jury, denying in part and corroborating in part the testimony of the sheriff and county attorney. He made the confession, he states, under promise that the sheriff would help him. In such testimony in response to questions asked by the court he made the following answers:

“By the Court: Q. Did the county attorney ever tell you to tell anything but the truth? A. I don’t remember he asked me that.
“Q. What he told you it would be best to tell the truth? A. Sheriff told me that.
“Q. Sheriff said it would be best to tell the truth? A. Yes, sir.
“Q. Did you tell the sheriff after he had told you to send for the county attorney? A. I asked him where the county attorney was.
“Q. Did you tell the sheriff you wanted to tell the county attorney the truth? A. Yes, sir. * * *
“Q. What you signed, did you just make a voluntary —just tell how it happened, or did he ask questions? A. I answered questions.”

Mr. C. A. Welch, assisting in the prosecution, testified:

“* * * I came over and went into the county attorney’s office. Nelson Cooper and Mr. Hurd came in, and we all sat down there, and without any excitement or disturbance on his part Nelson Cooper detailed all this statement. Now the county attorney put the leaves or sheets in the typewriter, and he would type a while, and get up with the story, and Nelson Cooper related every single word from the very beginning to the end. He detailed all about the gun, where they got the gun, and where they hid the gun after the shooting, and after the county attorney was through these leaves were handed to him, not fastened together then, handed to him leaf by leaf, and he read, or rather I couldn’t say he read each, but he appeared to start at the top of each and read to the bottom, and another was handed to him until he read all of it. After he did that, Ed Box asked him if that was substantially the way it occurred, and he said, ‘Yes,’ and seme one handed him a pen, and he signed his name and we witnessed it. Now, there was from the time I came in contact with Nelson Cooper on until I left at no time was any kind or character of promise or threat used toward him.”

The court admitted the statement, but submitted its weight by special instruction No. 6 to the jury, as follows:

“The state has introduced in evidence before you certain statements claimed to have been made by the defendant, Nelson Cooper, after his arrest and while he was in custody of the officers of the law, which statements are relied on in part by the state to establish defendant’s guilt of the offense charged. The court instructs you that confessions made by one charged with an offense must be carefully scrutinized and received with great caution. Yet, when they are made voluntarily and deliberately, such confessions and statements may be considered as evidence for and against the persons making them the same as any other evidence, but, if a confession or statement made by one in custody under such circumstances as show that he was induced to make the same by the promise or assurance that it would be to his best interest to do so, or that such statement or confession was not freely and voluntarily made, then they cannot be considered as evidence against the person so making them. And in this case, if you do not find the statements made by the defendant while in custody were freely and voluntarily made, and made without any inducement offered to defendant by the persons having him in custody, and made without any threats or intimidation on the part of the persons having the defendant in custody, then you must disregard such statements as affording any evidence against the defendant whatever, but the mere fact that the confession or statements, if any, made by the defendant were made in answer to questions propounded to him while he was under arrest or in custody will not be sufficient to exclude such statements or confession as evidence or prevent you from considering the same, if the statements, if any, were made freely and voluntarily.”

Where there is a conflict as to the voluntary character of a confession, the burden is on the defendant to show that it was not voluntary. The question of admissibility is primarily for the court to determine. When admitted, the manner and circumstances under which it was made may be shown by the defendant in order that the jury may properly say what weight and value should be given it. Mays v. State, 19 Okla. Cr. 102, 197 P. 1064.

If the confession attributed to the defendant was improperly admitted, the case should be reversed. If its admission was proper, the evidence is ample, and the judgment should be affirmed.

A confession, to be admissible, must be entirely free and voluntary. The following are some of the enlightening cases on this question: Thomas Bram v. U. S., 168 U. S. 582, 18 S. Ct. 183, 42 L. Ed. 568; People v. Thompson, 84 Cal. 598, 24 P. 384; State v. Spaugh, 200 Mo. 571, 98 S. W. 55; People v. Piner, 11 Cal. App. 542, 105 P. 780; People v. Lipsczinska, 212 Mich. 484, 180 N. W. 617; Berry v. State, 4 Okla. Cr. 202, 111 P. 676, 31 L. R. A. (N. S.) 849; Anderson v. State, 8 Okla. Cr. 90, 126 P. 840, Ann. Cas. 1914C, 314; Miller v. State, 13 Okla. Cr. 176, 163 P. 131, L. R. A. 1917D, 383; Wilson v. State, 16 Okla. Cr. 471, 184 P. 603; Mays v. State, supra.

And in the Miller Case, supra, this court held:

“To render statements made by a prisoner admissible, they must be entirely free and voluntary; that is, must not be abstracted by any sort of threats or violence, nor obtained by any direct or implied promises. * * *”

In the Berry Case, supra, this court said:

“Primarily there are two facts which render a confession inadmissible: First, that it was obtained under any form of compulsion, so that to receive it in evidence would violate the defendant’s constitutional privilege against self-incrimination; and second, that it was made under such circumstances of hope or fear as to create a fair probability of its testimonial untrustworthiness.”

The holding in these eases is sound, and we have no disposition to depart from them. In the case of Mays v. State, supra, it is held that the object in admitting a confession in evidence is to obtain truth, and that a confession is to be rejected only when the circumstances under which it is given are such as have a tendency to falsehood, and the object for which it was admitted would likely be frustrated instead of being secured. Bishop’s Criminal Procedure, par. 1217.

Then, if a promise is not of such a character as would likely cause a prisoner to tell an untruth through hope of profit from the promise, the confession is admissible. Wharton’s Crim. Evidence, § 658. See, also, Wigmore on Evidence, par. 860.

The admonition or advice by any person to a defendant to tell the truth does not vitiate a confession, as such advice affords no reason for a false confession. 1 Wigmore on Evidence, par. 882; Mays v. State, supra.

The fact that a person making a confession does so in response to questions or that he was in jail at the time, or was not warned, does not render the statement inadmissible. Anderson v. State, supra.

A careful examination of the record leads us to the conclusion that the confession in question is not shown to have been involuntary; that there was no such promise made, either directly or impliedly, as would create any tendency to cause the defendant to tell an untruth through any hope of profit. The case was fairly tried, the issues fairly submitted, and the judgment of the trial court is affirmed.

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


text:
    STATE v. ERNEST HARDEN.
    No. A-5036.
    Opinion Filed July 6, 1925.
    (237 Pac. 624.)
    George F. Short, Atty. Gen., G. B. Fulton, Asst. Atty. Gen., and Claud Briggs, Co. Atty., for the State.
    H. T. Church, for defendant in error.
   PER CURIAM.

This is an attempted appeal by the state from a judgment of the district court of Latimer county, rendered on the 28th day of September, 1923, sustaining a demurrer to an information charging the defendant, Ernest Harden, with the crime of embezzlement, which appeal was filed in this court February 20, 1924.

The Attorney General has filqd a motion to dismiss said appeal “for the reason that the record discloses that no notices of appeal were ever filed in this case as required by section 2809, Comp. Stats. 1921.”

In numerous cases it is held by this court that, when a county attorney desires to appeal a case on the part of the state, it is necessary that notices of such appeal be served in the manner required by section 2809, C. S. 1921. If this is not done, the Criminal Court of Appeals will not acquire jurisdiction of the case and the appeal will be dismissed. State v. Richardson, 4 Okla. Cr. 373, 111 P. 687; State v. Brown, 5 Okla. Cr. 579, 114 P. 340.

An examination of the record fails to show that such notices of appeal were served in this case.

The appeal herein is therefore dismissed.