text:
    JOHN CUBIE HODGES v. STATE.
    No. A-2957.
    Opinion Filed July 9, 1919.
    (182 Pac. 260.)
    1. APPEAL AND ERROR — Sufficiency of Evidence. Where the evidence is in conflict and there is evidence tending reasonably to sustain the finding of the jury, this court will not disturb the verdict on the ground that the evidence is insufficient.
    2 EVIDENCE — Reasonable Doubt — Evidence of Previous Good Character. Evidence of previous good character may generate a doubt of guilt, where without such evidence no such doubt would exist, but where there is legal evidence, taken together with such good character, showing the guilt of the defendant beyond a reasonable doubt, such good character cannot shield the defendant from the penalty of the law. '
    2. APPEAL AND ERROR — Record—Completeness—Correction. In considering an appeal, this court confines its review to the record filed, and if the same is not full and complete it is the duty of the counsel for plaintiff in error to suggest a diminution thereof, and have the same corrected before the cause is submitted. This court has been very liberal in permitting records bo be withdrawn and corrections to be made where any matters have been by inadvertence or mistake omitted therefrom. Any assignment of error not supported by the rcord will - not be considered.
    4. APPEAL AND ERROR — Harmless Error — Ruling on Challenges to Jurors. Where a defendant has not exhausted his. peremptory challenges of jurors and has not had forced upon him a disqualified juror, the action of the court in overruling challenges of defendant to other jurors for cause, if, error, is harmless.
    5. HOMICIDE — Insanity—Burden of Proof — Evidence—Expert Testimony — Weight. Instructions given by the trial court examined, and held to correctly cover the law of the case when they are considered as a whole

      Appeal from District Court, Caddo County; Will Linn, Judge.

    John Cubie Hodges was convicted of murder and appeals.
    Affirmed.

      C. B. Case, for plaintiff in error.

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

The plaintiff in error, John Cubie Hodges, hereinafter called defendant, whs informed against for the murder of Clyde Berger, and convicted and sentenced to imprisonment in the penitentiary at Me-Alester for the term of his natural life. To reverse the judgment rendered, he prosecutes this appeal.

The defendant filed a motion for a continuance upon the ground of the absence of Jesse. H. Jones, a witness for the defendant, for whom a subpoena was issued on the - day of August, 1916, and who was out of the state at the time of the issuance of the subpoena, and who was still out of the state at the time of the trial, and averred that if said-witness were present he would testify as to the mental incapacity of the defendant at times, and state facts tending to show that the defendant suffered from epilepsy.

The state resisted the continuance upon the ground of want of diligence on the part of the defendant, and that the evidence of said absent witness would be cumulative. '

On hearing of said motion it was shown that defendant had present a number of witnesses .to prove that he was an epileptic and was afflicted with epileptic insanity, but had no witness other than the absent witness by whom he could prove the particular acts of the defendant set forth in the motion for continuance as having occurred in the presence of the said absent witness, Jesse Jones.

The court overruled the application for a continuance, and the defendant excepted.

The trial having been entered upon, several jurors upon their voir dire examination were excused by the court, and other jurors, upon like examination, were challenged by the defendant for cause and such challenges overruled, to which said respective actions of the court the defendant separately excepted, but as the record does not show that the defendant exhausted his peremptory chal-langes, nor that the jury by which he was tried was not an impartial jury, we do not think it necessary to recite the examinations other than the material evidence of Charles Daugherty, called as a juror, and who testified that' he had not been summoned by the sheriff; that he was an employe of one Thompson, and attended the trial at the request of said Thompson, who it was otherwise shown was a particular friend of the deceased, and that the sheriff had never mentioned the subject to him. As soon as it appeared that Daugherty was not a regular summoned juror, he was immediately, by consent of the state and without objection of the defendant, discharged.-

The undenied material evidence is that the defendant and Alie Berger, a brother of Clyde Berger, had a controversy about the renting of some land about 12 o’clock a. m., on October 23, 1915, in which the defendant called Alie Berger a liar, and was knocked down by him with a blow of his fist; that upon the defendant getting up Alie Berger expressed to the defendant sorrow for having hit him, and asked the defendant to drop it and have no further trouble, and that the defendant and Alie Berger went their respective ways, and that shortly after they had separated the defendant remarked to another that Alie Berger would be sorry for what he had done; that shortly thereafter the defendant purchased a 38-caliber pistol at a store and cartridges for the same from another store, and about two hours after said difficulty in which the defendant was knocked down went into a butcher shop in the town of Carnegie, in Caddo county, Okla., in which Alie and Clyde Berger were, and the defendant began talking to Clyde Berger about the lease of the land over which the difficulty arose between Alie Berger and defendant, and Alie Berger joined in said conversation and said to the defendant, “go on; there was no use of having any trouble;” that then the attention of Alie Berger was called by some one outside of the shop wanting to borrow a horse, and Alie Berger went to the door of the shop, and the defendant shot him twice, and that immediately upon the defendant firing the shots Clyde Berger started toward the defendant, and the defendant shot him, and defendant and Clyde Berger grappled, and defendant and Clyde Berger fell upon the floor, and defendant again shot Clyde Berger; that the defendant was removed to the office of a doctor and his face washed and examined, and Clyde Berger was taken to a hospital in Chickasha, and about five or six hours after being shot by the" defendant died from the effects of said shooting. The defendant testified that he had no recollection of having purchased the pistol and cartridges on the day he shot Clyde Berger and Alie Berger; that he had no^recollection of having shot “these people”; that up to the time Alie Berger struck him, and still, his (defendant’s) feelings were good toward Alie Berger; that he, defendant, had never had any trouble before; that he was given to epileptic spells, and that such spells would be brought upon him by excitement; and that the first thing he remembered after being struck by Alie Berger was when he found himself in Dr. Contrell’s office near the scene of the shooting, after he had killed Clyde Berger.

The evidence is in conflict as to the mental condition of the defendant prior to and at the time he killed Clyde Berger, which evidence' is very voluminous, and no useful purpose would be served by reciting the same; tending on one side to show that the defendant was, and on the other side that he was not, at the time he killed Clyde Berger, in such mental condition as, in law, to be responsible for such killing.

There was also evidence, which was not denied by the state, that the defendant prior to the killing of Clyde Berger had the general reputation of being a peaceable and law-abiding citizen.

The court, among other instructions, gave the following, viz:

“No. 8. Gentlemen of the jury, you are instructed that the defendant has interposed as one of his defenses in this case the plea of insanity. When that defense is interposed, the burden of proof is upon the defendant to introduce sufficient evidence to raise in your minds a reasonable doubt of his sanity.' It is not required that the defendant shall prove his insanity to the satisfaction of the minds of the jury by competent evidence beyond a reasonable doubt, or by a preponderance of the evidence. It is sufficient if he only introduces sufficient evidence to' raise in your minds a reasonable doubt of his sanity, and when this is done you are instructed that the burden of proof is upon the state to prove the sanity of the defendant by competent evidence, beyond a reasonable doubt, before you would be justified in convicting the defendant as charged in the information, and then the burden of proving the sanity of the defendant rests upon the state, like that of proving any other material allegation of the information; and, if you believe that the state has failed to prove, by competent evidence, beyond a reasonable doubt, the sanity of the defendant, and if from all the evidence in the case there is a reasonable doubt in your minds as to the sanity of the defendant at- the time it is alleged he Shot and killed the deceased, Clyde Berger, you will then return a verdict of not guilty and acquit the' defendant.”

“No. 11. The court instructs the jury that testimony has been given bv certain witnesses whom in law are termed experts, and in this connection I would suggest to you that while in cases such as are being tried, the law receives the evidence of men expert in certain lines as to their opinions derived ■’’rom their knowledge of particular matters, the ultimate weight which is to be given to the testimony of expert witnesses is a question to be determined by the jury. There is no rule of law which requires you to surrender your own judgment to that of any person testifying as an expert witness, or to give controlling effect to the opinion of scientific witnesses; in other words, the testimony of an expert, like that of any other witness, is to be received by you and given such weight as you think it properly entitled to, but you are not bound or concluded by the testimony of any witness, expert or other.

“(b) The court instructs the jury that before the opinion of an expert has any value whatever, the jury must first find to be true the facts upon which such opinion is based.”

To the giving of said instructions, the defendant respectively excepted.

The defendant made timely motion for a new trial, and a motion in arrest of judgment, each of which motions was overruled, and the action of the court in overruling said motions separately excepted to.

The defendant complains that he suffered prejudicial error by reason of his application for -a continuance being denied. The facts are that, notwithstanding his prosecution had been pending for many months, the defendant did not, until August preceding his trial on September 4th, cause a subpoena to issue for the absent witness, who was at the time and at the time of the trial absent from the. state,, and no excuse was offered for such want of diligence, and it was on the hearing of the said application for a continuance shown that the testimony which the absent witness would give would be cumulative, and that there were witnesses present who would testify to a like statement of facts shown to be within the knowledge of said absent witness. We are of the opinion that the court did not err in overruling the motion for a continuance.

“An application for a continuance on account of absent witnesses should show due diligence.” Smith v. State, 14 Okla. Cr. 348, 171 Pac. 341.

“A motion for a continuance based on the absence of a witness who has not been served with process and who has left the jurisdiction of the court should be overruled.” Pugh v. State, 6 Okla. Cr. 578, 120 Pac. 296.

“As a general rule, a continuance should not be granted to enable a defendant to obtain cumulative evidence.” Litchfield v. State, 8 Okla. Cr. 164, 126 Pac. 707, 45 L. R. A. (N. S.) 153.

“A defendant is not entitled to a continuance, as a matter of right, to secure cumulative evidence.” Jones v. State, 8 Okla. Cr. 576, 129 Pac. 446.

That the granting of a continuance is addressed to the sound discretion of the trial court, and unless an abuse of discretion is shown a judgment will not be reversed on appeal on account óf a denial of a continuance, is held in an unbroken line of decisions of this court.

The defendant further insists that the court committed prejudicial error in excusing jurors for cause, in overruling defendant’s challenge to jurors for cause, and it was fundamental error for the stenographer not to take down as requested the complete evidence of jurors on their voir d\ire, and that the court erred in not, on its own motion, discharging the panel because the jury had been tampered with. It is sufficient answer to the charge that the court erred in excusing jurors to point out that the record does not- disclose that the court in so doing abused its discretion. So far as overruling the challenges of the defendant for cause, it is sufficient to say that the record does not show that the defendant exhausted his peremptory challenges, or was required to accept a disqualified juror. If legal information had come to the court that an attempt had been made to pack the jury, it was the duty of the court, on its own motion, to discharge the panel, but this very serious charge is not supported by evidence. The most that can be said along such line is that one Thompson, an overzealous friend of the deceased, caused one Charles Daugherty, an employe of said Thompson, to attend the trial, and said Daugherty did so, and, without being summoned by the sheriff, was for some reason, not appearing in the record, called as a juror. As soon as it appeared to the court that Daugherty was not a regularly summoned juror, he was immediately, by consent of the state and without objection of the defendant, discharged. Counsel for the defendant condemn the sheriff and his deputies for an attempt to pack the jury, but there is no evidence in this record that will support the charge that the sheriff or anybody else attempted to pack the jury on this defendant. Before this court will brand any public official of this state with an attempt to pack a jury, which is a most serious offense; the defendant must produce a record clearly establishing such fact. By some inadvertence or mistake, Daugherty was called to the jury box and was immediately discharged. He did not participate as a juror in the trial, and there was no action taken by the trial court, appearing of record, relative to the examination and discharge of Daugherty that in any way was prejudicial to the substantial rights of the defendant, or would authorize the discharge of the entire panel under the circumstances. There was no showing that the sheriff or any of his deputies were purposely summoning as jurors men prejudiced against the defendant, nor was there any showing whatever of any collusion between the sheriff and Thompson, or between Thompson and any other official of the court, whereby Daugherty was called as a juror in this case.

Any attempt to pack a trial jury, whether successful or not, deserves and will meet the severe condemnation of this court; and, where the record supports such contention or there is a reasonable probability that the defendant was imposed upon by fraud or collusion in the selection of jurors, the judgment of conviction will be reversed.

Where it is contended that an attempt has been made to pack the trial jury with friends of the deceased, the record must support such contention, else a judgment of conviction will not be reversed upon such ground.

We fail to find any prejudicial error committed by the court in excusing jurors for 'cause, or in overruling challenges of jurors by the defendant for cause, or in not, on its own motion^ discharging the panel of jurors.

The only defense interposed by the defendant was that of epileptic insanity at the time of the killing, and it is insisted that the defendant should have been acquitted on that ground. The theory of insanity presented an issue of fact entirely for the consideration and determination of the jury; and, there being evidence of the sanity of the defendant at the time he killed Clyde Berger, notwithstanding there was evidence to the contrary, sufficient to support the finding of the jury, we are, as repeatedly held by this court, powerless to set aside the verdict. The verdict of guilty necessarily included a finding by the jury that the defendant was sane at the time he killed Clyde Berger. January v. State, 16 Okla. Cr. 166, 181 Pac. 514.

It is true that the defendant offered evidence, which was not denied by the state, that previous to the killing of Clyde Berger he had the general reputation of being a man of peace and quietude, and it is also true that the law offers a premium for such previous good character, permitting it to generate a doubt of .the guilt of an accused, where without such good character no doubt would exist; but where the guilt of the defendant is clearly shown by evidence beyond a reasonable doubt, as in the instant ease, such good character cannot be a shield for the crime committed and work an acquittal. Ernst v. State, 16 Okla. Cr. —, 184 Pac. 793.

Instruction No. 8, complained of, correctly instructs the law, and the court did not err in giving the same. Adair v. State, 6 Okla. Cr. 284, 118 Pac. 416, 44 L. R. A. (N. S.) 119.

In the Adair Case an instruction in the identical words of instruction No. 8, given in this case, was requested and refused. Judge Doyle in a very exhaustive opinion, in which he collates the authorities, both American and English, upon the question covered by the said instruction, held that the said refused instruction correctly announced the law.

Instruction No. 11, given the jury and complained of by the defendant, we think somewhat involved by reason of the expression therein, “I suggest,” which we think maybe properly defined as “I instruct,” and, as thus defined, to-correctly state the law, especially when the charge of the-court is considered as a whole, as we must consider it; and the giving of said instruction does not warrant a reversal of this case. Miller v. State, 9 Okla. Cr. 255, 131 Pac. 717, L. R. A. 1915A, 1088.

We are of the opinion that the motion for a new trial and the motion in arrest of judgment were each properly-overruled.

The judgment of the trial court is affirmed.

DOYLE, P. J„ and MATSON, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
      Ex parte ED HERRING
    No. A-3091
    Opinion Filed July 12, 1919.
    (182 Pac. 252.)
    HABEAS CORPUS — Scope of Inquiry — Jurisdiction. Where a prisoner in custody under sentence of conviction seeks to he discharged on habeas corpus, tile inquiry is limited to the question whether the court in which the prisoner was convicted had jurisdiction of the crime charged; and, if the trial court had jurisdiction and power to convict and sentence, the writ cannot issue to correct mere errors.
    Petition of Ed Herring for writ of habeas corpus„
    Writ denied.

      John H. Venable, for petitioner.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is a petition for writ of habeas corpus filed in this court on August I, 1917. Petitioner, Ed Herring, alleged:

That he is imprisoned and restrained in the penitentiary at Granite by virtue of an unlawful and illegal judgment and sentence of conviction in the district court of Grady county; that on the 19th day of May, 1917, petitioner was arrested on a complaint filed before a justice of the peace in and for the city of Chickasha, the charging part of which complaint is as follows:

“Did then and there, willfully and unlawfully, knowingly and feloniously have in his possession a certain forged check in words and figures as follows, to wit:

“‘Chickasha, Okla., May 15, 1917.

“ ‘The Oklahoma National Bank, pay to order of Henry Mitchell, or order $25.00 twenty-five dollars.

“‘(¡Signed) Fred Jelks.’

“Indorsed on back: ‘Henry Mitchell.’

“Which he, the said Ed Herring, alias Henry Mitchell, well knew to be forged, and counterfeited, and which said check, the said Ed Herring, alias Henry Mitchell, offered to pass and utter as true and genuine to the Oklahoma National Bank, for the consideration of said check, to wit, $25.00, with the felonious intent then and there upon the part of him, the said Ed Herring, alias Henry Mitchell, to cheat, wrong and defraud the said Fred Jelks out of the sum of $25.00.”

A certified copy of which complaint is attached and made a part hereof.

That petitioner on the preliminary examination held by said justice of the peace was bound over to await the action of the district court of Grady county, as' shown by the indorsement on the complaint hereto attached, for the crime of forgery. That thereafter on the 25th day of May, 1917, the county attorney of Grady county filed an information in the district court of Grady county on the charge of “attempting to pass forged check,” the charging part of.' which information reads as follows:

“That on or about said day and date and in said county and state, the said Ed Herring, alias Henry Mitchell, then and there 'being, did then and there willfully, unlawfully, and knowingly and feloniously have in his possession a. certain forged check in words and figures as follows, to wit:

“ ‘Chickasha, Okla., May 18, 1917.

“ ‘The Oklahoma National Bank, pay to the order of. Henry Mitchell, or order, $25.00, twenty-five dollars.

“‘(Signed) Fred Jelks,’

“Indorsed on back: ‘Henry Mitchell.’

“Which he, the said Ed Herring, alias Henry Mitchell, well knew to be forged and counterfeited, and which said check the said Ed Herring; alias Henry Mitchell, offered to pass for the consideration of said check, to wit, $26.00, with the felonious intent then and there upon the part of him, the said Ed Herring, alias Henry Mitchell, to cheat, wrong and defraud the said Fred Jelks out of the sum of $25.00, contrary to,” etc.

A certified copy of said information is hereto attached, made a part hereof.

That thereafter on the 26th day of May, 1917, petitioner entered a plea of guilty to the charge preferred against him in said information, and was by the district court of Grady county sentenced to one year in the penitentiary at Granite. A copy of the judgment and sentence is. herewith attached and made a part hereof.

It is further alleged that the restraint by the warden of the state penitentiary is 'illegal and unauthorized, for the folio-wing reasons:

That the said complaint filed before the justice of the peace fails to state facts sufficient to charge petitioner ■with any crime known to the law; that said justice of the peace in issuing a warrant on said complaint, and in holding petitioner to await, the action of said district court, was without jurisdiction or authority, and the district court of Grady county acquired no jurisdiction of either the subject-matter or the person of petitioner; that the j'"' ment and sentence of the court under which the warden of the penitentiary holds petitioner is null and void, and gives said warden no authority whatever to hold petitioner.

Petitioner further Alleges that the information filed in the district court fails to state facts sufficient to show thht any crime known to the law has been committed, or that petitioner has committed any crime against the laws of the state of Oklahoma; that said information and the complaint each attempts to charge petitioner with the crime ■of uttering a forged instrument, but each fails to state sufficient facts to show that any crime known to the law has been committed, or that petitioner was guilty of any offei. se against the laws of the state of Oklahoma; that for that reason the judgment and sentence passed on said information is null and void.

Petitioner further represents that he is a minor, 16 years of age, and that, while he pleaded guilty to the charge as set out in said information, he is not guilty of the commission of any crime.

Argument upon the petition for said writ was had on August 25, 1917, and the writ Was refused.

Section 4893, Rev. Laws 1910, provides:

“No court or judge shall inquire into the legality of ‘any judgment or process, whereby the party is fn custody, or discharge him when the term of commitment has not expired in either of the cases following:

“First. * * *

“Second. Upon any process issued on any final judgment of a court of competent jurisdiction; or

“Third. * * *

“Fourth. Upon a warrant or commitment issued from the district court or any other court of competent jurisdiction, upon an indictment or information.”

The general rule is that the writ of habeas corpus may not be used either before or after conviction to test the sufficiency of an indictment or information. If the district court had jurisdiction to pronounce the judgment* it cannot 'be reviewed on habeas corpus.

The contention of counsel for petitioner that neither the original complaint nor the information filed in the district court charges an offense, is without merit. The court had jurisdiction over the offense charged and over the person of the defendant. Irregularity, if any, in the proceedings had upon the preliminary examination should have been raised by a motion to quash, or motion to set aside the information.

In the case of Ex parte Woods, 7 Okla. Cr. 645, 125 Pac. 440, it is said, where a prisoner in custody under sentence of conviction seeks to be discharged on habeas corpus, the law is well settled that the inquiry is limited to the question whether the court in which the prisoner was convicted had jurisdiction of the person of the defendant and of the crime charged. And if the trial court had juris- ■ diction and power to convict and sentence, the writ cannot issue to correct mere errors.

In Re Talley, 4 Okla. Cr. 398, 112 Pac. 36, 31 L. R. A. (N. S.) 805, it is said:

“The writ of habeas corpus is not designed for the correction of errors or mere irregularities, and cannot be substituted for an appeal or writ of error. And where a petitioner is imprisoned under a judgment of conviction for crime, unless the court was without jurisdiction to render the particular judgment, and the judgment is void and not merely voidable, relief cannot be had by habeas corpus, however numerous and gross may have been the errors committed during the trial or in the proceedings preliminary thereto.”

For the reasons stated, the writ of habeas corpus is denied.


author: ARMSTRONG, J.

text:
    JOHN WEEMS v. STATE.
    No. A-3113
    Opinion Filed July 16, 1919.
    (182 Pac. 264.)
    1 APPEAL AND ERROR — Denial of Continuance — Abuse of Discretion. While a trial court must be fair to a defendant, and give him an opportunity to prepare for trial, this court will mot hold that overruling a motion for a continuance to prepare for trial is a denial of a fair trial, unless it clearly appears that the trial court in overruling said motion abused its discretion.
    2 APPEAL AND ERROR — Admission of Evidence — Brief. Where a defendant complains of the erroneous admission or rejection of evidence, he must specifically point out in his brief a synopsis of the evidence of which he complains as improperly admitted or rejected.
    ;>. APPEAL AND ERROR — Conviction on Accomplice’s Testimony— Reversal. A conviction cannot be legally had alone upon the un-‘ corroborated evidence or an accomplice; and, where the record shows that a conviction is so had, it wall, on appeal, be set aside, whether or not the defendant requested the court to instruct the jury that a conviction could not be legally had on the uncorroborated evidence of an accomplice.

      4. APPEAL AND ERROR — Accomplice’s Testimony — Corroboration. Where tlie evidence of an accomplice shows the guilt of a defendant beyond a reasonable doubt, and such evidence is corroborated by legal evidence, this court will not disturb a verdict of conviction.
    5. APPEAL AND ERROR — Grant of Separate Trial — Presumption of Regularity. Where one of several codefendants is put on trial separately, and the record is silent as to how said severance was granted, it will lie presumed that it was regularly granted on the motion of the state, or on the motion of the defendant.
    6. LARCENY — Larceny of Stock — Sufficiency of Evidence. The record in this case carefully examined and considered, and the evidence held sufficient to reasonably sustain tlie verdict rendered, and that the trial of the case was free from prejudicial error.

      Appeal from District Court, Caddo County; Will Linn, Judge.

    John Weems was convicted of stealing domestic animals, and he appeals.
    Affirmed.

      J. W. Osmond, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, John Weems, hereinafter called defendant, was with others jointly informed against for stealing domestic animals, tried separately, convicted and sentenced to imprisonment in the penitentiary at McAlester for a term of two and one-half years, the service of said sentence to commence upon the expiration of the sentence now being served by him in said penitentiary. To reverse the judgment rendered, he prosecutes this appeal.

The defendant has not abstracted the evidence in this case, as required by the rules of this court, hut invites the court “to examine the entire record as to the evidence without the same being set out in the brief.” The evidence is very voluminous, covering hundreds of pages of typewritten matter; and, as to do so would serve no useful purpose, we will not undertake a recital thereof.

It is first insisted by defendant that he did not have a fair trial, because the court overruled his motion for a continuance, based upon the ground that the court had only four days previous to the trial appointed counsel to defend him, and that the counsel so appointed, by reason of being engaged for one and one-half days of the said four days in the trial of the defendant for another offense, had not had time properly to prepare the case for trial. In support of said contention defendant cites Frank v. State, 8 Okla. Cr. 71, 126 Pac. 582, and Brewer v. State, 13 Okla. Cr. 514, 165 Pac. 634, neither of which said cases we think in point. • In the former case there was a distinct statutory ground for a continuance for the term, against which the state made no showing, while in the latter case the statement therein relied upon by the defendant in support of error in denying his motion for continuance is mere dictum based upon a hypothetical case not in accord with the instant case, and the evidence shows that the defendant had been out on bail for several months, and had ample opportunity to prepare for trial, and that he availed himself of that opportunity is shown by the fact that in the trial of his case, in addition to himself, he produced 19 witnesses who testified in his behalf, and after the trial had been entered upon the court adjourned to give him and his counsel further time to prepare his defense. The able defense interposed by the very competent attorney appointed by the court is shown by the record, and it shows that the defendant was not injuriously affected by being placed on trial at the time he was tried.

It is a well-established rule of this court, which will always be enforced, that the trial court must treat the defendant with fairness and allow reasonable opportunity to defend, and this court will not hesitate to reverse a conviction where said rule has been violated. Harris v. State, 9 Okla. Cr. 658, 132 Pac. 1121. But we are unable to see that the court in this case did not treat the defendant with fairness and give him reasonable opportunity to defend.

The defendant had a fair and impartial trial. Every safeguard under the Constitution and laws of this state was thrown around him, by the court appointing a most competent attorney to defend him, and after the trial had been entered upon, by suspending the trial to give defendant and his counsel additional time to prepare to meet the evidence that had been introduced by the state, and by granting this appeal at the expense of the county.

We are of the opinion that the court did not abuse its discretion in overruling- the motion for a continuance.

The defendant further complains because he was tried separately from his co-defendants, without severance having been properly granted, and insists that the severance was erroneously granted by the court on its own motion. The record is silent as to how said severance was brought about, and in this state of the record it was brought about, and in this state of the record it must be presumed that the severance was properly granted, either on the motion of the defendant or on the motion of the state. We are unable to see how the defendant was prejudicially affected by being tried alone, or how he could have been beneficially affected by being jointly tried with his codefendants.

“There is no presumption against the regularity of the proceedings in a court of record. Such proceedings are presumed to be regular, unless the contrary is affirmatively made to appear.” Beatty v. State, 5 Okla. Cr. 165, 113 Pac. 237.

“We never presume error in the proceedings of a court of record, but, on the contrary, the presumption is that the trial court was regular and fair; and the burden is upon the party complaining of any ruling of the trial court to Chow that it was erroneous, and that he suffered injury thereby.” Thornsberry v. State, 8 Okla. Cr. 88, 126 Pac. 590.

It is further contended by the defendant that prejudicial error was committed “in permitting the introduction and in the rejection of evidence prejudicial to his rights,” bur he failed to point out in his brief the evidence improperly admitted, or the evidence improperly excluded.

If the defendant is unable to point out the evidence erroneously admitted, or erroneously rejected, he certainly cannot expect this court to find it, where the number of witnesses examined is as great and the evidence as voluminous as in the instant case.

Finally, the defendant complains that the court committed prejudicial error in failing to instruct, without being requested by the defendant so to do, that the evidence of Milt Boydston, his codefendant and accomplice, must be'corroborated to authorize the jury to convict the defendant upon his testimony, and that the verdict is contrary to the law and the evidence. If the record disclosed that the defendant was convicted upon the evidence alone of Milt Boydston, and that he was an accomplice of the defendant, this court, regardless of whether or not an instruction was asked or given that a conviction could not be legally had upon the uncorroborated testimony of an accomplice, would hold the defendant’s conviction erroneous and reverse the judgment rendered. Section 5884, Rev. Laws 1910; Jones v. State, 14 Okla. Cr. 217, 169 Pac. 1133.

A careful reading of the entire testimony in the case shows that, not only was the evidence of Milt Boydston-amply corroborated, but that if the evidence of Milt Boyd-ston be eliminated, there remains evidence sufficient, though the evidence is.in conflict, to reasonably support the verdict of the jury.

“Where there is any legal evidence to reasonably support the verdict rendered, this court will not disturb such verdict, notwithstanding the evidence is in conflict.” Rosco Arnold v. State, 15 Okla. Cr. 519, 178 Pac. 897.

The evidence of Milt Boydston clearly showing the guilt of the defendant, and his evidence being corroborated, and there being evidence, other than that of Milt Boydston, tending to show the guilt of the defendant, the jury was justified in finding the defendant guilty of larceny of domestic animals as charged in the information. A different verdict than that of guilty could not have been reasonably' expected.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

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


text:
    A. W. BALDOCK v. STATE.
    No. A-2771.
    Opinion Filed July 16, 1919
    (182 Pac. 265.)
    1, EVIDENCE — Absent Witnesses — Transcript of Testimony on Preliminary Hearing — Admissibility. Where a witness for the state, whom the defendant had an opportunity to cross-examine, is without the state, a transcribed copy of the stenographic notes of the testimony of such witness given on the -preliminary examination of the defendant is admissible in evidence against the defendant upon his subsequent trial, notwithstanding sucji transcript of said testimony has not been filed in the trial‘court.

      2. HOMICIDE — Manslaughter in Second Degree — Sufficiency of Evidence. The record in this case carefully examined and considered, and the evidence found insufficient to support the verdict returned and the judgment thereon rendered.

      Appeal from, District Court, Greer County; T. P. Clay, Judge.

    A. W. Baldock was convicted of manslaughter in the second degree, and he appeals.
    Reversed and remanded, with instructions to discharge defendant.

      A. M. Stewart and Chas. L. Moore, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, A. W. Bal-dock, hereinafter called defendant, was informed against for the murder of E. T. Hurt, convicted of manslaughter in the second degree, and sentenced to serve six months' imprisonment in the county jail of Greer county at hard labor, and to pay a fine of $500.

To reverse the judgment rendered, he prosecutes this appeal.

The material undenied evidence is that Logan Pool worked in the Star cafe at Mangum, Okla., as a cook, and that on the 8th day of June, 1915, after supper, the defendant went to said restaurant and asked for Logan Pool, who at the time was in the kitchen of said restaurant; that a message was sent- and said Pool came into the dining room where the defendant was, and at the time had on an apron but no coat, and was apparently quiet and cool; that the defendant and Pool then went out ■ in front of the restaurant and talked some 15 or 20 minutes and returned to the dining room, at which time Pool appeared to be pale, like he was mad and nervous, went back into-the kitchen, pulled off his apron, put on his coat and hat,, and rejoined the .defendant, and they together left the-restaurant, and Pool went to near the front of the Owll drug store; and that, after P90I reached said point, E, T;„ Hurt, the deceased, passed and went into the said drug; store, from which he was shortly thereafter called, and went out where Pool was, and almost immediately thereafter said Hurt was shot by said Pool, and Hurt returned! to the drug store and announced that Pool had shot him,, and in a short time Hurt was removed to Dr. Border’s', hospital, where, on the 12th day of June, 1915, he, from-, effect of the gunshot wound inflicted upon him by Pool, died; that Pool was convicted of manslaughter in the first-degree for killing Hurt.

The evidence is in conflict as to the whereabouts of" the defendant at the time Pool shot the deceased, there-being evidence that just before the shooting, when the deceased passed Pool going into the Owl drug store, the defendant was near Pool, and pointed out the deceased as? the one having on light clothes, while, on the other hand,, there is evidence that the defendant had left Pool prior to-the shooting, going in the direction of his home, and there was also evidence that immediately after the shot he was seen running from the scene of the shooting, and that he —with many others, attracted by the shot — was at the said drug store before the deceased was removed therefrom to the hospital.

A transcript of the evidence of the wife of Pool, who was examined as a witness for the state on the preliminary examination of Pool for the killing of Hurt, which evidence was taken down by the court stenographer, 'but said transcript was not filed in the office of the court clerk of the-county, was admitted in evidence, and to the introduction of said transcript, for which a predicate therefor had been laid by showing that a subpoena had been served upon said witness to attend this trial, and that she was in Texas and unable to attend the trial by reason of her expected early confinement, the defendant objected and excepted.

As shown by said transcript, the said witness testified at said preliminary examination that she was the wife of the said Pool, and that prior to and since her marriage she had worked as a barber in defendant’s barber shop in .Mangu/n, and he had told her that he loved her better than any woman in the world; that the deceased was regularly shaved by her and often lingered long in her chair after she had shaved him, and gave her frequent, tips, all of which was known to the defendant; thqt prior to her marriage she lived in the home of the defendant as one of the family;. that prior to and since her marriage she and the defendant frequently had sexual intercourse in the barber shop; and that the last time she had had sexual' intercourse with him was on Friday, two weeks before the preliminary trial of her husband; and that since her marriage she had had frequent sexual intercourse with Hurt, the deceased.

The state -introduced said Logan Pool as a witness, who testified that he was a convict in the penitentiary at ’.McAlester; that his wife worked for the defendant in his • barber shop prior to his marriage to her; that on the 8th ( day of June the defendant came to where he was employed and asked for him, and that he went out of the kitchen in .response thereto and met the defendant in the restaurant, ;and he and defendant then went out in front of the restaurant, and the defendant began telling him about his (witness’) home being broken up by Hurt, saying that if he was in the place of witness he would take a gun or club' and catch them together and knock his head off; told witness of different occasions, when Hurt would come down to the shop to have work done, that he would lie in the chair-as much as an hour after his work was completed, and. some times his (witness’) wife would have to leave the shop and go out to try to get him to leave the chair; that Hurt would follow her out and meet her at the Owl drug store-on different occasions; and that one of Hurt’s next door neighbors said if witness would kill Hurt he would be paid for it; that he told the defendant to wait there, and he would go into the restaurant, and then go down the street with him; that he went in, took off his apron, got his coat and hat and the pistol, and went out of the restaurant, with the defendant; and that they went on together to B. E. Davis’ store; that he (witness) went in the store and inquired for Hurt, and was informed by the party inquired' of that he did not know where Hurt was; that, while he was in Davis’ store, the defendant remained in front of the store, and witness rejoined him there, and they continued on to near the post office, where they were .passed by three persons, one of whom the defendant informed witness— the one in a light suit — was Hurt; that Hurt and those-with him went into the Owl drug store; that witness-called Hurt out, and when Hurt came witness began speaking to him, to which Hurt did not reply, but pulled his gun and snapped it in his face; that he then shot Hurt;that after he fired was the last time he saw the defendant ; that he and defendant on said night did not reach any agreement, or consent, by which he was to kill Hurt; that the defendant'did not assist him in getting a gun; that he did not believe that the defendant knew that he had a gun; that he did not say anything to the defendant about haring •a gun; that what the defendant told him made him so .mad that he went and got the gun; that they had no agreement to go to any particular place, or to hunt Hurt; that they were talking out in the public street in an ordinary •tone of voice where people were passing all the time; that ■any passers-by could have heard what they said; that they left the restaurant together, and went together; that the defendant was going in the direction of his home; that the defendant did not know for what purpose he went into Davis’; that he was looking for Hurt, but that he did not communicate this to the defendant; that he did not have* any understanding that he was to have any consideration for testifying against the defendant; that the defendant, ■prior to the time he talked to him in front of the restaurant, had talked to him about his domestic troubles; that, prior to having the talk with the deefndant in front of the restaurant, he had not threatened to kill Hurt; that he told the defendant, when talking with him that night, that he thought that Hurt had such a hold on. his wife that he could not do anything with her; that the relations of witness and defendant were friendly until he found out that the defendant had tried to keep his wife from marrying ’him; that the night he talked to the defendant in front of the restaurant his relations to the defendant were not very "friendly; that he made no arrangement with the defendant ~t© murder Hurt; that he and his wife separated on the tdvy preceding the killing of Hurt; that the separation of the witness and his wife was not due to anything done or said by the defendant, but was caused by the phone talk 'that he overheard between Hurt and witness’ wife; that he did not remember whether or not the defendant said to !him, when talking in front of the restaurant, “Now is your time”; that the defendant had nothing to do with the killing of Hurt; that he killed Hurt in self-defense.

Mrs. Douglass testified that the night Hurt was killed she passed very close to the defendant when he "and Pool were talking in front of the Star cafe, and that she heard the defendant say to Pool, “Now is your time,” and Pool replied, “All right, you go down the street and walk slow, and I will catch you.”

Will Latimere testified that the night Hurt was shot he, after dark, passed the Star cafe, and that the defendant and Pool were in conversation in front of said cafe, and he heard the defendant say, “She says she has plenty of money.”

Several witnesses testified that they were customers of defendant’s shop, and bad seen the defendant and the wife of Pool together in said shop and had never seen' anything improper between them, and another witness testified that he was a customer of said shop and had seen the defendant, in his shop, “punch Pool’s wife in the ribs.”

The defendant testified: That he had always maintained friendly relations with Pool and his wife, and that Mrs. Pool prior to her marriage lived in his home and worked in his shop as a barber, and that he treated her p.ist like he would a daughter. That she showed him a letter from Pool proposing marriage. That he spoke well of Pool and advised her to accept his proposal of marriage. That he and his wife went with her to the depot when she went to Elk City to be married to Pool. That when she worked in his shop her conduct was good. That he never saw anything unusual with her and Hurt. That she often got tips from Hurt and others and always told him about it. That, after her marriage and return to Mangum, Pool and wife lived the first door north of where defendant lived. That at the time of the killing Pool and wife lived in the northeast part of Mangurn. That he had heard of the domestic troubles of Pool and his wife. That he was informed of it preceding the killing of Hurt on Tuesday, and was so informed by Pool’s wife, who came to his shop for that purpose, and after she had related to him the particulars of their troubles he told her he would speak to Pool the first time he saw him, and tell him that he had never in his shop or in his home seen a thing wrong. That on the night of the killing of Hurt he came from his home uptown to get some tobacco, and concluded to buy some fresh meat for breakfast, and went to a butcher shop which is a few doors north of the Star cafe. That the shop was closed, and he then went in front of said cafe and looked in the window to see if Pool was there, then went into the restaurant, and in obedience to defendant’s request Pool came out of the kitchen in his shirt sleeves with an apron on, and they went out in front of the cafe, where it was well lighted and where many people were passing; and that he told Pool that he did not want him to think that he wasf meddling in his family affairs, but that Oleo (Pool’s wife), told him that he (Pool) had threatened to kill her over some remarks he had heard about her character; that he did not think these remarks true; that he had never heard of anything wrong; that she could not have stayed in his home if she had not been what she ought to have been, an upright girl; that “whoever told you that your wife was a sport before she married you ought to have his head knocked off with a club”; that she made an honest living while she worked for him and made plenty of money, and never did anything to cause him to be suspicious of her; that he believed she was true. That Pool replied, “Burt, you do not know it all,” and was almost in tears; that he (Pool) had overheard a phone conversation of her with Hurt; that Hurt was renting a house for her and “is going to move her tomorrow, and making arrangements to take her to Wichita”; that he (Pool) had tried to quiet her and could not do it; that “you (defendant) and your wife” and he could not do any more; and defendant replied he thought “we could settle it without any trouble,” and when they got through talking defendant said:

“Now, Pool, you can rely on us, I and my wife, 'being your friends. We always favored Cleo before you knew her. We will do anything to help settle your trouble. We certainly are your friends, and if you ever needed friends now is the time.”

And that defendant started to walk down the street. That Pool started into the restaurant, turned around, and said “Wait a minute,” he was going down that way, and defendant stepped into the restaurant and waited for Pool, who got his coat and hat and rejoined defendant, and they left the restaurant and went down the street together. That, he had no agreement with Pool about killing Hurt. That he did not know anything about it. That he did not know of Pool’s having a gun. That he (defendant) did not have, and had never owned, a gun. That in said conversation nothing was said about a gun. That nothing was said about trying to find Hurt. That there was no understanding between them about where they were going. That he (defendant) was going home his usual way. That Pool said he -was going to the Palace theater. That defendant stopped in front of Irving’s to get the Western Union time, and when he did so Pool was walking right ahead of him. That he never paid any more attention to him. That the next time he saw Pool was when he got in front of fylangum drug store. That defendant went into Davis’ to get some tobacco, and after he got the tobacco he came out on the square, and Pool came up right against him, and, after they had reached' near the corner of the courthouse square, Pool left him, saying, “There goes Hurt, I am going to speak to him,” and defendant said, “You had better-come on and go home.” That he was on Lincoln street at some distance from Pool when the pistol fired. That Pooi had left him. That, after the pistol fired, he went back to the drug store, and from the drug store to Davis’ store. That he stood a while after the pistol fired and watched Pool and saw him when he broke and ran across the street. That he first discovered that Hurt was shot when he got to the drug store. That it struck him that Pool was going straight home to carry out his threat to kill his wife, and that he wanted to notify her, was the reason that he went to Davis’ store, and when he ran into the store Pool’s wife’s father' was standing in the door, and he told him he had better phone to his daughter to leave the house; that Pool had shot Hurt and was “on the road up there.” That Pool’s father-in-law would not have anything to do with it, and that he asked Thad Tucker to phone, but it could not be done because they did not know the phone number and it was not on the calendar. That he stayed at the store about 15 or 20 minutes, and went back to the drug store and stopped there about a minute, and then went home. That Hurt’s name was not mentioned from the time they left the Star cafe to where Pool left him. That there was no understanding between him and Pool to, and that he did not assist in any way to, find Hurt or to kill him. That he told Pool he thought the best thing for Mrs. Pool to do was to quit working at his shop; that it would keep her from coming in contact with those people he was jealous of. That he had no intention at any time to cause the death of Hurt or to do him any harm. That the night Hurt was killed he did not act in the furtherance of his death. That he did not know that he was going to be killed. That he had no ill feeling towards Hurt. That Hurt was one of his best friends and customers.

The defendant separately objected and excepted to every paragraph of the instructions given to the jury, and requested several instructions which were refused, and their refusal separately excepted to, which said instructions given, and instructions refused, we deem unnecessaiy to recite.

The defendant filed a motion for a new trial upon the ground, among other grounds, “That the verdict is contrary to the evidence and is not sustained by the evidence.”

The material question presented for review is: Does the evidence sufficiently support the verdict rendered?

The state having introduced Pool as a witness, it thereby vouched for his veracity, and relies almost entirely upon his evidence for a conviction; .but he does not testify that in the conversation had with the defendant in front of the Star cafe on the night of, and before, the killing of Hurt, or at any other time, the defendant advised, counseled, procured, or .encouraged, or in any way aided or abetted, Pool to kill Hurt, nor can it reasonably be inferred from the entire evidence of Pool that the defendant was an accomplice of Pool in said killing. While, on the contrary, Pool testified that the defendant did not know that he (Pool) on the night of the killing had a pistol, until after the shot was fired by Pool that resulted in the death of Hurt, and that the defendant “did not have anything whatever to do with the killing of Hurt, and that he (Pool) killed Hurt in self-defense.”

In order to legally convict one as an accomplice — a principal under our statutes (Rev. Laws 1910, sec. 2104) — ■ it must be shown beyond a reasonable doubt that the one so accused advised, counseled, procured, or encouraged, or in some way aided and abetted, another to commit the crime charged.- In the instant case it was essential to a proper conviction of the defendant that the state prove beyond a reasonable doubt that he advised, counseled, procured, encouraged, or in some way aided or abetted the defendant in killing Hurt. Hendrix v. State, 8 Okla. Cr. 530, 129 Pac. 78, 43 L. R. A. (N. S.) 546.

“An ‘accomplice’ is one who is not present at the commission of the offense, but who, before the act is done, -advises, commands or encourages another to commit an offense; or who, being present, aids by acts, or encourages by w'ords, the principal offender in the commission of the offense.” Smith v. State, 13 Tex. App. 507, 511.

Webster defines an “accomplice” as follows:

“A co-operator or as an associate in general, an associate in crime,. a participator or partner in guilt.”

The evidence that a lady, who passed near the defendant when he and Pool were talking in front, of the Star cafe on the night and before Hurt was killed, heard the defendant say to Pool, “Now is your time,” but did not hear the other part of said conversation, or know in what connection “now is your time” was used, we think reasonably explained by the evidence of the defendant as not being 'used in a criminal sense by the defendant, the defendant testifying, and not impeached, that he said to Pool at the time and place named, “If you ever needed a friend, now i§ your time,” and therefore little, if any, incriminating weight can be given to what she heard the defendant say — “Now is you time” — even if she heard exactly what the defendant said.

As to the eivdence of the wife of Pool, shown by a transcript of her evidence taken at the preliminary examination of Pool for killing Hurt, which transcript had not been filed in the trial court, and the admission of which as evidence was objected to by the defendant, we think upon proof by the state that Mrs. Pool had been summoned in the case, and that she w<as in the state of Texas and unable to attend the trial by reason of expecting to be confined at an early day, that the said transcript was properly admitted. Said evidence shows that she smiled upon 'both the defendant and Hurt, and that each, Hurt and the defendant, reveled in her adulterous embraces, and that at the time of the killing of Hurt he seemed to have been more favored by her than was the defendant; and it is insisted by the state that this situation furnished a motive on the part of the defendant to have Hurt effectually put out of the way, and that this motive, together with other evidence in the case, is sufficient to sustain the conviction of the defendant. With this contention we cannot agree, as we are unable to see that the evidence warranted the conviction of the defendant of any offense; certainly it did not of manslaughter in the second degree, an offense not supported by any evidence in the case, and did not authorize the instruction given by the court that the defendant might be found guilty “of mansaughter in the second degree.”

If all the evidence in the case be eliminated, except the evidence for the state, we think such evidence insufficient to support the verdict rendered in this case, or to establish the guilt of the defendant of any offense, and that the court committed fundamental error in overruling the motion for a new trial; and when the entire evidence is considered — which should be done when acting upon a motion for a new trial — and it is remembered that the veracity of the defendant is not questioned by the state, said error of the trial court is emphasized.

“So, where the issue is one of fact only, and the court on review of the whole evidence is not satisfied that the facts proved justify the verdict found, a new trial should be granted.” 12 Cyc. page 732, and authorities cited in note 15.

“While it is well settled that this court will not disturb the verdict on account of the evidence when there is evidence to support it, the converse rule is equally well •settled, that it is not only a province, but the duty, of the court to set aside such a verdict when it is contrary to the evidence, or where there is no evidence to support it.” Benson v. State, 10 Okla. Cr. 16, 133 Pac. 271.

As the error pointed out must work a reversal of the judgment rendered, we deem it unnecessary to review any of the other errors assigned.

The judgment of conviction is reversed, and the case remanded, and, as the conviction of the defendant of any ofiense cannot be legally had under the evidence in the case, the trial court is hereby directed to enter an order discharging the defendant in said case.

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


author: DOYLE, P. J.

text:
    CY WILLIAMS et al. v. STATE.
    No. A-2387
    Opinion Filed July 21, 1919.
    (182 Pac. 718.)
    1. CONSPIRACY — Information—Overt Act. Under tlie statute (section 2234, Rev. Laws 1910), the crime of conspiracy to commit a felony or misdemeanor is not complete “unless some act besides snc-h agreement be done to effect the object thereof, by one or more of the parties to such agreement.” and, where a conspiracy to commit a crime is charged, it is necessary that the information contain, in addition to an allegation of the conspiracy to commit the particular crime, an allegation of some overt act or acts dome in furtherance and pursuance thereof.
    2. VENUE — Conspiracy—Place of Overt Act. Bill of Bights, section 20, gives the accused tlie right of trial' by jury of the county wherein the crime shall have been committed. Our Code of Criminal Procedure (section 5612, Rev. Laws 1910), provides: “IVhen a pnblic offense is committed partly in one county and partly in another county, or the acts or effects thereof Constituting or requisite to the offense, occur in two or more counties, the jurisdiction is in either county.” Held that, in a prosecution for conspiracy to commit a crime, the overt act. may be the sole basis of local jurisdiction.
    8. INDICTMENT AND INFORMATION — Jurisdiction—Allegations as to Conspiracy. Where the jurisdiction of the court depends solely upon an overt act alleged in an information for conspiracv to commit a crime, it must be alleged with all the definiteness and certainty of any other jurisdictional fact, and the connection between the overt act and the conspiracy charged must be made to appear specifically by necessary allegations.
    4. CONSPIRAOS — “Overt Act.” An “overt act” must be something more than evidence of the conspiracy. It must be an act done by one of tlie parties to carry out the intent, and it must be such as would naturally effect that result; at least, it must be .a step towards the execution of the conspiracy.
    5. ABORTION — Pregnancy—Statute. Under the statute (section 2436. Rev. Daws 1910), defining the crime of abortion, the pregnancy of the female is an essential element of the offense.
    0 VENUE — Conspiracy—Evidence of Overt Act. The conspiracy alleged was to procure the. crime of abortion and was entered into in Oklahoma county, and the alleged overt acts were committed in Greer county. The evidence showed that the defendants procured Maud Marshall, a woman not shown to be pregnant, to leave Oklahoma county and go to Greer county for the purpose of setting a trap by which one I)r. Border was to be induced to ■ consent to perforin an abortion on the woman, Maud Marshall, and to induce him to consent to perform an abortion one wf the defendants informed Dr. Border that he would pay for the operation, and that the woman, Maud Marshall, was ready to receive advice to (alto some medicine or substance to procure a miscarriage. and they set up a dictagraph to take his advice.
    Held that, in order to- constitute the crime of abortion as defined by the statute, the woman, Maud Marshall, must have been pregnant, at the time the alleged overt acts were committed in Greer county, and, there being no evidence of an overt act in furtherance of a conspiracy to procure an abortion having been committed in Greer county, the county court of Greer county did not have jurisdiction to receive the verdict or render the judgments. appealed from.

      Appeal from County Court, Greer County; H. M. Thacker, Judge.

    Cy Williams, B. V. Henson, R. A. Baird, C. P. Walker, and J. W. Chambers were jointly charged, tried, and convicted of conspiracy to commit the crime .of abortion, and they appeal.
    Reversed.
    Harry E. Stege testified that he was superintendent of the bureau of identification, police department, Tulsa, mid had held the same position in Oklahoma City for two years and in Kansas City for seven years; was acquainted with the defendants C. P. Walker, Cy Williams, and B. V. Henson; that in the month of July, 1914, the defendant Walker asked him where he could get a, dictagraph, and he told him he thought he could get one from the Burns Detective Agency, at Kansas City, for him to wire them, using’ his name, and say, “Charges guaranteed”; that Walker said he wanted the dictagraph to use on a job on the west side of the state; that a day or two later, at Oklahoma City, Walker told him that Mr. Henson of the ■Burns Agency was in Oklahoma City; that he met Henson, and talked with him about Walker and Cy Williams; that Henson told him he had the dictagraph, but Walker had not yet deposited any money; that he told Henson not to •worry about the money, it would be paid; that the defendant Walker had worked for the Lee Huckins Hotel as a detective, and Walker told him he was then working for John Keyes, who had a lot of electric light plants, street railways, ice plants, or something of that kind.
    W. T. Perry, codefendant, against whom the case had been dismissed, testified substantially .as follows:
    That Cy Williams told him that there was a doctor in Western Oklahoma, mayor of his town, who was agitating the issuance of bonds for a municipal light plant at the place, and he wanted to get some dope on him; something that they could quiet him with and make him hold up on the bond issue. That he wanted to get some woman who was in the family way and have this doctor produce an abortion on her and have it so arranged that there would be ■ witnesses to it, and then have it published on this doctor, and in that way kill him politically and professional^, and if they could do this that the State Medical Association would take his license from him. That on Sunday night before they left Oklahoma City on the following Tuesday, Williams told him he had everything fixed and' the women were at the Cecil Hotel, in charge of Mrs. Mitchell. That he went to the Cecil Hotel and met these women, and the next day Williams told him to have the girls at the Frisco station that evening and they would leave on the 6 o'clock train for Chickasha. That Williams said he had given the expense money for the trip to the defendant R. A. Baird, and Williams would come over the next day. That he, with R. A. Baird, Maud Marshall, and Lola Fill-son, went to Chickasha that evening, the 21st day of July, he thought it was. That the next day Williams came to the hotel and told them to get ready to go to Hobart, saying he would get the tickets; that defendant Baird settled the hotel bill, and they left’ on the train. That after supper that evening at Hobart, Williams told him that a party would be there that night from Mangum and let him know whether or not he could get Dr. Border to come to Hobart, and that night about 12 o’clock he was standing with Williams in front of the hotel when an automobile stopped, and a man got out and asked if there was a man by the name of Williams from Oklahoma City there; Williams said,- “Here I am,” and this man and Williams walked back to the automobile.
    That after talking awhile, Williams came back, and said, “These parties say they could not get Dr. Border to come to Hobart”; that he thought the defendant Chambers was the man that asked for Williams. The next morning Williams bought the tickets, and they all went to Altus. There he first met the defendant Henson and helped him to set up the dictagraph in the girls’ room at the hotel. Then Williams came in with the girls and said he would send Baird to Mangum and arrange to have Dr. Border come to Altus that night. About midnight Williams said Baird had telephoned from Mangum that he could not get Dr. Border to come to Altus. The next morning the party left Altus and went to Mangum, stopping at the Harris House. The girls were assigned rooms 18 and 19. That they set up the dictagraph in room 19, and found that it worked all right. In about a half hour Williams came to the door of room 19 and said: “We have been tipped off. Take the dic-tagraph out of here.” They took it down and put it in a suit case and took the suit case to Henson’s room. In a half hour, about 10 o’clock, some one knocked on the door, and he opened it, and Dr. Border came in and said he had an appointment with Mr. Baird to meet him there at that time and examine a young lady who was in trouble, and asked which one it was. Lola Fulson told him it was Maud Marshall. Dr. Border asked her if she was in the family way. and she said she was, and he asked her how far along, and she said about six weeks or two months, but that she did not want to be examined that night. Dr. Border walked out, and in a few minutes the officers came in and arrested them. . ■
    J. J. Long testified that he was proprietor of the Nash Hotel at Hobart; that Cy Williams• registered from Oklahoma City at that time, and there were with him two other men and two women; that the defendant Baird was one of the party and registered by the name of “Pat Murphey.”
    Stansell Whiteside testified:
    That he was court reporter of the Twenty-fifth judicial district. Was in Altus on the 25th day of July, and, in response to a telephone call from R. A. Baird, went to the hotel, and Baird introduced him to Cy Williams, who said he wanted to employ him to take a conversation over a dic-te graph, and asked him to come back that evening, and that evening at 8 o’clock he went to the Orient Hotel, and Williams was talking to a man that he has known since as Perry. That Williams took him to his room and started to adjust the dictagraph, but could not get the ear piece right, and said, “I have an expert here with me.” That he went out, and he came back with Mr. Henson. In about 30 minutes Williams appeared and said: “Well, the thing is off tonight. We will see you tomorrow.” That' he told Mr. Henson that he was official court reporter, and could not afford to get into anything illegitimate, and Henson pointed to the card on the dictagraph, and said:

      “William J. Burns Dictagraph. You need not worry. It is perfectly legitimate. I don’t know what these people are up to, but, so far as mine and your work is concerned, it is perfectly legitimate.”
    That he also asked Williams when he was talking to him, and Williams said, “It is perfectly legitimate.” That the next day a party saying he was R. A. Baird called him on the telephone, and wanted him to cotae to Mangum, saying:
    “These parties left Altus this morning unexpectedly. Just take the bus and come to the Harris ’Hotel.”
    That evening he went to Mangum, and the defendant Williams was sitting in front of the hotel when he arrived on the bus. That after supper he walked around the square and met Dr. Border, and talked to him a few minutes, and then returned to the hotel. Williams was in the lobby and toid. him to go to room 19. There defendant Henson asked him to help set up the dictagraph. They tried the machine, and it worked all right, and they sat down, and he said to Henson, “Is Dr. Border in this deal in any way?” and Henson did not answer, and he said:
    “I suppose Dr. Border is onto the deal, whatever it is, for I met him here on the street and talked to him.”
    That Henson said, “Do you know him?” He said, “Yes.” Henson said:
    “You had better stay here in your room and not go out. They are liable to tumble onto this deal.”
    That Williams came in and said something, and Henson asked: “Who is the sheriff here? What kind of a fellow is he?” I said, “Hugh -Tittle; he is all right, and will protect you in any legitimate proposition,” and he said, “Weil, the deal is all off.” I said, “Mr. Henson, if it is all over, you won’t mind telling me what you were going to do.” He said:
    “You need not worry over the legitimacy of it. The State Medical Association has an idea there is some crooked medical work going on down here. There are some doctors down here producing abortions, and we just wanted to see if this fellow is doing any of it, or if this fellow would fall for it.”
    That he went to his room, and Dr. Border with a sixshooter in his hand and four or five deputy sheriffs appeared, searched -him, -and searched his grip.
    C. A. Stubbs testified:
    That he had been -acquainted with the defendant J. W. Chambers several years. That he met him on the street in Mangum a few’ days before these parties arrived at the Harris Hotel, and Chambers said:
    “Dr. Border is butting into everybody’s business. He is fighting the light plant people. He is fighting these doctors. But there was a bunch after him now that would get him, and it would not be long before they would.”
    That Chambers was manager of the Mangum Electric Light Company.
    Dr. G. F. Border testified:
    That he was a physician and surgeon, county health officer, and mayor of the city of Mangum, that he had known defendant Chambers at Mangum six or seven years. That the defendant C. F. Walker was, as he understood it, secretary of the Mangum Electric Light 'Company.. That the defendant Baird called him on the telephone about a week before these defendants appeared at Mangum, and stated that he was at the Lee Huckins Hotel at Oklahoma City, and asked him to come to Oklahoma City that night. That he had a surgical case he wanted him to operate upon, and he told Baird that he was very busy, and if he had a surgical case the proper place for that was in the hospital, and Baird said he would report to him later. That a few days later Baird came to his hospital in Mangum and told him the patient that he wanted him to see at the Lee Hue-kins Hotel was now at Altus, and he offered him $50 to go there and perform an abortion. That the girl’s name was Maud Marshall, and he refused to go to Altus with him. TLa.t the next morning Baird again appeared at the hospital and told him that he had arranged for these people to come to Mangum, and they would be at the Harris Hotel, and wanted the operation performed there that night at 11 o’clock. He said she was a poor girl and it was a charity case; that he had been a minister of the gospel and knew what sympathy was for a girl; that this girl had some single sisters that she had. to care for and their reputation would toe ruined; that he had devoted his time to charity work and doing good for others, and he would pay $50 for the operation.
    That night he went to the Harris Hotel and~inquired - for Baird, and he came down in the lobby, and he asked Baird if he was ready, and Baird said: “No, I ata uneasy. There are some officers about this place. We want to be careful.” He said to Baird, “Let’s go out and see what they are doing now,” and they walked out, and he told the officers to take charge of Baird and put him in jail. That he then went to the room where the other parties were supposed to be, and in the room was Maud Marshall, -Lola Faison, and W. T. Perry. That he' asked which was Maud Marshall, and a girl lying on the bed said she was Maud Marshall, and he asked her, “Are you pregnant?” and she said, “Yes, sir,” and he told her, “I am the doctor that was to operate on you,” and she said, “I am not ready. I have decided to put that off until in the morning.” That he left the room and noticed the officers in the hall, that, he had stationed there for the purpose of arresting those parties. That he had a gun in his hand and met 'Stansel Whiteside, pointed it at him, and asked him what he was doing there, then entered the other room and held his gun on Cy Williams and Henson and told them to put their hands up, and told the officers to search them and arrest them. That they took a couple of pistols from them and found the dictagraph in the suit case. That at the time a 'bond issue was pending in the city of Mangum for the purpose of building a municipal light plant and an ice plant also, and as mayor of the town he was advocating the bond issue, and the Mangum Electric Light Company was taking an active part in opposing the voting of the bonds.
    Myrtle Lucile Mitchell testified:
    That she resided at Oklahoma City. Was acquainted with defendant Cy Williams, met him on the street there, and he said:
    “We have some work, and we can make a barrel of money. I want you to get a girl that is pregnant to go over and catch an old doctor in the western part of the state that is an abortionist.”
    That she said, “that looks crooked to me,” and he said:
    “It is perfectly legitimate. Those furnishing the money want to get him out of the country.”
    That she walked down the street and met Lola Ful-son, and she said:
    “Maud Marshall is down at Purcell, and she is that way, and would be awful glad to get rid of it.”

      That the next morning Lola Fulson called her and said, “Maud Marshall is here,” and she went and met them and went with the girl to a lawyer’s office to meet Ciy Williams, and there she introduced the girls to him. He asked Maud Marshall if she was pregnant, and she said she was, and he said they were going to get that doctor to some there; that he was in the city that day, and they would get him and pull this off at Oklahoma City. That later Williams told her they would have to go out of town to do this work and would have to go to Kansas City for a dictagraph, and she told him that Mr. Stege at Tulsa had one. That Williams told her he would give her $500 and give the girls a hundred each. That the next time she phoned the girls they were gone.
    The state rested, and counsel for the defendants and ^aeh of them moved the court to instruct the jury to return a verdict of not guilty, for the reason that the testimony adduced by the state fails to establish or prove the allegations of the information, which motions were overruled, and • exceptions allowed.
    For the defense Maud Marshall testified:
    That she was in Mangum, at the Harris Hotel, on July 25, 1914, and was there arrested with the other par-fiei connected with the case. That she was not pregnant In the month of July, 1914. That Dr. Border came to the room where she and Lola Fulson and Mr. Perry were, and said, “I want to see Miss Maud Marshall. Mr. Baird sent me here to see her.” That she said to him: “I can’t see you now. I will see you later.” That she did not say to him there that she was pregnant and. so many weeks gene. She was then asked if her monthly sickness came on while she was in the county jail at Mangum. Counsel for the state objected on the ground “that it was íinma-terial whether this woman was pregnant or not.” The court sustained this objection. That she knew the witness Mrs. Mitchell, but not by that name. That she did not teH Mrs. Mitchell prior to the 25th day of July, 1914, that she was pregnant, and that she did not agree or consent at anytime to have an operation performed on her.
    Cross-examined, she stated that her age was 22 years; that she came to Mangum with Mr. Williams, Mr. Baird, Mr. Perry, and Miss Fulson; that they wanted her to come there to have Dr. Border perform an operation; that they did not’ explain to her exactly how it was, but said she would know when she got there; that a day or two after her arrest she told the county attorney and Mr. Pruiett, in the presence of Mr. Daws, that she was not in the family-way ; that she was not at any time in the family Way.
    Lola Fulson testified:
    That she was present with Maud Marshall and Mr., Perry when Dr. Border came to their room in the Harris Hotel. That Dr. Border said he called to see Maud Marshall. She. did not remember what was said, but 'she knew that Maud Marshall was not pregnant and stated the reasons. That, as she understood it, they were there to see Dr. Border, and that Dr. Border was to make an examination and consent to perform an abortion, and they were to catch him and show him up.
    The foregoing is a substantial statement of the evidence in the case.

      Ben F. Williams and Bunoell, Crockett & Johnson* for plaintiffs in error Henson, Walker, and Chambers.

      Ben F. Williams, for other plaintiffs in error.

      The Attorney General and R. McMillan and W. C. Hall, Asst. Attys. Gen., and A. R. Garrett, County Atty., for the State.
   DOYLE, P. J.

(after stating the facts as above). The information in the case charged:

“That heretofore, to wit, on or about the 25th day of July, 1914, in the county of Greer, state of Oklahoma, Cy Williams, R. V. Henson, R. A. Baird, C. P. Walker, Maud Marshall, Lola Fulson, J. W. Chambers and W. T. Perry, did then and there unlawfully, willfully and feloni-ously, conspire, agree and confederate together to commit the crime of procuring the miscarriage of a pregnant woman, said miscarriage not being necessary to preserve the life of said pregnant woman, and in- furtherance, and in pursuant of said agreement, they’ procured Maud Marshall, a woman, whom they believed to be pregnant, to leave Oklahoma City, in the state of Oklahoma, and come to Mangulm, in the county of Greer, state of Oklahoma, and secured rooms at the Harris Hotel, and had the said Maud Marshall placed therein for the purpose and with the intent of having a physician to advise said Maud Marshall to take medicine, drug or substance or submit to the use of some instrument to effect a miscarriage on the said Maud Marshall, said miscarriage not being necessary to preserve the life of said Maud Marshall; and in furtherance of said agreement and conspiracy they secured the service of G. F. Border, a physician and surgeon residing in said city of Mangum, to advise said Maud Marshall to take some medicine, drug or substance, or submit to the use of some instrument to effect said miscarriage and produce the same; and in furtherance of said agreement and conspiracy the defendants secured rooms at the Harris Hotel in said city of Mangum and had said Maud Marshall placed in said rooms and informed the said G. F. Border that the said Maud Marshall was ready to receive said advice or to have said instrument used in procuring said miscarriage.

“Arid the defendants did then and there, in the manner and form as aforesaid, unlawfully, willfully and feloni-ously commit the crime of conspiracy as defined in the first subdivision of section 2232 of the Revised Laws of Oklahoma of 1910, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.”

A demurrer to the information on the ground that it did not state facts sufficient to constitute a public offense was duly filed, overruled, and exception allowed.

On motion of the county attorney, the case against W. T. Perry, Lola Fulson, and Maud Marshall was dismissed.

Upon the trial the verdict of the jury was as follows:

“We, the jury impaneled and sworn to try the issues in the above-entitled cause, do, upon our oaths, find the following defendants: Cy Williams, B. V. Henson, R. T. Baird, C. P. Walker, and J. W. Chambers — guilty, and leave their punishment to be fixed by the court.”

Motions for new trial and in arrest of judgment were duly filed, and overruled, and the court sentenced each of the said defendants to be confined in the county jail for five months and to pay a fine of $500.

To reverse the judgments rendered on verdict, an appeal was duly perfected.

Various errors are assigned upon the record, and the questions presented have been ably and elaborately argued by counsel on both sides, both orally and in the briefs. However, it is neither important nor necessary to consider more than one or two of the questions presented. Counsel for plaintiffs in error contend that the information is insufficient to charge a conspiracy to commit the crime of abortion, in that it fails to allege that the woman therein named was pregnant. It is further contended that the conspiracy alleged in the information was not proved, in that there was no evidence of overt 'acts in pursuance of and to effect the object of the conspiracy. In this connection, while the question of jurisdiction was not challenged in the trial court, the question is raised in this court. The following are the provisions of the Penal Code upon which the information was based:

Section 2232, Rev. Laws 1910:

“If two or more persons conspire, either: First, to commit any crime; or, second, falsely and maliciously to indict another for any crime, or to procure another to be charged or arrested for any crime; or, third, falsely to move or maintain any suit, action or proceeding; or, fourth, to cheat and defraud any person of any property by any means which are in themselves criminal, or by any means which, if executed, would amount to a cheat, or to obtaining money or property by false pretenses; or, fifth, to commit any act injurious to the public health, to public morals, or to trade or commerce, or for the perversion or obstruction of justice or the due administration of the laws — they are guilty of a misdemeanor.”

Section 2234, Rev. Laws 1910:

“No agreement to commit a felony or to commit a misdemeanor amounts to a conspiracy, unless some act besides such agreement be done to effect the object thereof, by one or more of the parties to such agreement.”

Section 2436, Rev. Laws 1910:

“Any person who administers to any pregnant woman, or who prescribes for any such woman, or advises or procures any such woman to take any medicine, drug or substance, or uses or employs any instrument, or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the penitentiary not exceeding three years, or in a county jail not exceeding one year.”

It is averred in the information that it charges a “conspiracy” as defined by the first subdivision of section 2232, supra, and the case was entirely regarded in the court below and was tried and submitted upon the theory that the information charged only a conspiracy to procure an abortion on the particular female therein named. The information charges that the defendants did “conspire, agree and confederate together to commit the crime of procuring a-miscarriage of a pregnant woman, said miscarriage not being necessary to preserve the life of said pregnant woman.” The record shows that the court refused instructions requested by the defendants to the elfect that the jury must find that the woman, Maud Marshall, was a pregnant woman before they would be warranted in convicting them, and that the court sustained objections to evidence offered showing or tending to show that the woman, Maud Marshall, was not at any time pregnant, on the theory that it was immaterial as to whether or not she was in fact pregnant.

To sustain the verdict and judgments of conviction, the state relies upon the case of Queen v. Whitchurch et al., as reported in 8 Am. Crim. Rep. 1. The Whitechurch Case was an indictment charging a woman who was not in fact with child with conspiring with others, all 'believing her to be pregnant, to. procure an abortion on herself. The court held the prosecution would lie. The statute upon which the prosecution was based appears in the official report. 24 Q. B. D. 420. The language of the English statute is:

“Whosoever with intent to procure a miscarriage of any woman, whether she be or not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of a felony.”

The Dominion of Canada and the states of Massachusetts, Maryland, Florida, and Iowa have enacted statutes similar to the English statute.

Under section 2436, supra, the pregnancy of the female is'an essential element of the offense. It follows that the-doctrine of the Whitchurch Case is not in point, and decisions based on similar statutes have no application to the instant case.

As to the position that the county court of Greer county was without jurisdiction, the defendants by their counsel in their argument say:

“Assuming for the purpose of argument only that the information and evidence may be held sufficient to show a conspiracy to produce an abortion, we contend that there is an entire lack of evidence of any overt act in Greer county under any theory of the case, and clearly an overt act in Greer county would be necessary to confer jurisdiction on the county court of that county.”

Under the statute, section 2234, supra, the crime of conspiracy to commit a felony or misdemeanor is not complete “unless some act besides such agreement be done to effect the object thereof, by one or more of the parties to such agreement,” and, where a conspiracy to commit a crime is charged, it is necessary that the information contain, in addition to an allegation of the conspiracy .to commit the particular crime, an allegation of some overt act or acts done in furtherance and pursuance thereof. It will be observed that the statute making the overt act an essential element of the crime does not apply to all conspiracies, but only to those which have for their object the commission of a crime.

The uncontroverted evidence is that the conspiracy was formed and entered into in Oklahoma county and the alleged overt acts were committed in Greer county. It is well settled that a prosecution for conspiracy to commit a crime may be had in any jurisdiction wherein an overt act in pursuance of the conspiracy is committed. The rule rests on the reason that each overt act is deemed a renewal of the conspiracy. Thus in People v. Mather, 4 Wend. 231, 24 Am. Dec. 122, it was said:

“The law considers that, wherever they act, there they renew, or, perhaps, to speak more properly, they continue their agreement, and this agreement is renewed or continued as to all whenever any one of them does an act in furtherance of their common design.”

And see Hyde v. U. S., 225 U. S. 347, 32 Sup. Ct. 793, 56 L. Ed. 1114, Ann. Gas. 1914A, 614.

The question is whether the overt acts alleged and the proof thereof were sufficient to give the county court of Greer county jurisdiction.

The constitutional guaranty gives the accused the right of trial by jury of the county wherein the crime shall have been committed (Bill of Rights, sec. 20), and our Code of Criminal Procedure provides that—

“When a public offense is committed, partly in one county and partly in another county, or the acts or effects thereof constituting or requisite to the offense, occur in two or more counties, the jurisdiction is in either county.” Section 5612, Rev. Laws 1910.

Under the statute (section 2234, Rev. Laws), the crime of conspiracy is not complete without the commission of an overt act. Therefore the overt act may be the sole basis of local jurisdiction. However, it must be something more than evidence of the conspiracy. It must be an act to effect its object.

The overt acts alleged are that the defendants “procured Maud Marshall, a woman whom they believed to be pregnant, to leave Oklahoma City and come to Mangum, in the county of Greer, and there secured rooms and had the said Maud Marshall placed therein for the purpose and with the intent to have a physician to advise said Maud Marshall to take medicine, drug, or substance, or submit to the use of some instrument to effect a miscarriage on the said Maud Marshall,” and in furtherance of said conspiracy “secured the service of G. F. Border, a physician and surgeon residing in the said city of Mangum, to advise the said Maud Marshall to take medicine, drug 'or substance, or submit to the use of some instrument to effect the said miscarriage and produce the same, and informed the said G. F. Border the said Maud Marshall was ready to receive said advice or to have said instrument used to produce said miscarriage.”

Nowhere in the information is it alleged that the woman, Maud Marshall, was in fact pregnant, and there was no competent testimony tending to show that the defendants had reason to believe or did believe at the time that the woman,. Maud Marshall, was pregnant.

An “overt act” is one done to carry out the intent, and it must be such as would naturally effect that result. Whether a certain act was in pursuance of the conspiracy depends entirely upon what the conspiracy was, and upon whether the parties conspired to accomplish th«Ir ourpose by the means alleged. Where a conspiracy to commit a crime is established, any act in pursuance of the conspiracy and to effect its object is sufficient to give the court jurisdiction in the county where the act was committed. It is said that a conspiracy to commit a particular crime is essentially of the nature of an attempt to commit the crime.

Bishop says:

“We have already seen, in a general way, that to a certain extent conspiracy is a species of attempt. And—

“The act of conspiring, and the specific intent to accomplish what constitutes a substantive crime, and in combination a criminal attempt, and it is the professional usage to term it conspiracy. It follows the same rules, and is subject to the same limitations, as other attempts.”

2 Bishop’s New Crim. Law, sec. 191.

Wharton says:

“Conspiracy, when its object is to effect an indictable offense, is subject in the main to the limitations heretofore expressed with regard to attempts.” 2 Wharton, Crim. Law (11th Ed.) sec. 1605.

And again:

“The only safe course is to make the test objective, even and palpable, and to apply universally the limit here presented, holding that conspiracy does not lie unless the defendants can be proved to have done something which, if not interrupted by extraordinarily natural occurrences or by collateral human intervention, would have resulted in an unlawful act.” Wharton, Crim. Law (11th Ed.) sec. 1603.

An attempt to commit a crime can only be made under circumstances which, had the attempt succeeded, would have constituted the substantive offense.

“By the weight of authority, if, as a matter of law, the completed act accomplished -as intended would not be a crime, the attempt to commit it is not criminal, whatever may be the party’s state of mind. For example, it is not a crime at common law to procure an abortion with the consent of the woman, where she is not quick with child; and therefore an attempt to procure an abortion under such circumstances is not indictable, though the party may not know that the child has not been quickened.” Clark and Marshall, Criminal Law (2d Ed.) p. 190.

The conspiracy alleged was to procure the crime of abortion. In order to constitute the crime of “abortion” as defined by the statute, the woman, Maud Marshall,'must have been pregnant at the time the alleged overt 'acts were committed in Greer county.

Where the statute makes pregnancy an essential element of the offense, it must be alleged and proved, and, where the jurisdiction of the court depends solely on an overt act alleged in the information for conspiracy to commit a crime, it must be alleged with all the definiteness and certainty of any other jurisdictional fact, and the connection between the overt act and the conspiracy charged must be made to appear specifically by necessary recitals. 12 C. 3. 625.

Considered in connection with the proof, the information is defective in failing to allege that the woman, Maud Marshall, was at the time pregnant.

The evidence showed the conspiracy was entered upon in Oklahoma City; that the defendants procured Maud Marshall, a woman not shown to be pregnant, to leave Oklahoma county and go to Greer county with several of the defendants, for the purpose of setting a trap by which Dr. G. F. Border was to be induced to consent to perform an abortion on the woman, Maud Marshall; that there, .to induce him to agree to perform an abortion, one of thé defendants informed Dr. Border that he would pay for the operation, and that the woman, Maud Marshall, was ready to receive advice to take some medicine or substance to procure a miscarriage, and they set up a dictagraph to take his advice.

There is no conflict in the evidence with respect to what the defendants did in Greer county, and there is no-evidence to show their intent was to have an abortion performed. The evidence showed their purpose was to induce' l)r. Border to advise the woman, Maud Marshall, to take some medicine or drug to procure a miscarriage; the object of the defendants being thereby to injure his character and. standing professionally and politically.

Our Code of Criminal Procedure provides:

“Upon a trial for conspiracy, in a case where an overt act is necessary to constitute the offense, the defendant cannot be convicted unless one or more overt acts be expressly alleged in the indictment or information, nor unless, one or more of the acts alleged be proved; but any other overt act, not alleged in the indictment may be given in. evidence.” Section 5883, Rev. Laws 1910.

There being no evidence of an overt act in furtherance of a conspiracy to procure an abortion having been committed in Greer county, it follows that the county court of Greer county did not have jurisdiction to render the judgments appealed from.

The judgments herein are therefore reversed.

ARMSTRONG, J., concurs.

MATSON, J., disqualified and not participating.