text:
    FOREST JOHNSON v. STATE.
    No. A-3660.
    Opinion Filed Nov. 22, 1921.
    (201 Pac. 1006.)
    (Syllabus.)
    1. Rape — Evidence to Support Conviction in First Degree. In a prosecution for rape, evidence held sufficient to support the verdict and judgment of conviction for rape in the first degree.
    2. Rape — Assisting Others to Perpetrate Crime. Where the evidence shows, or tends to show, that the defendant was present aiding and assisting others in committing a rape by force and violence, overcoming the resistance of the female, a conviction will. be sustained, even though he did not personally have intercourse with her.
    3. Appeal and Error — Discretion of Lower Court — ^Change of Venue. A petition for a change of venue is addressed to the sound discretion of the trial court, and, unless it clearly appears that there is an abuse of such discretion, this court will not reverse the judgment for the failure of the trial court to grant a change of venue.
    Appeal from District Court, Delaware County; A. C. Brewster, Judge.
    Forest Johnson was convicted of rape, and he appeals.
    Affirmed.
    Hunt & Beaueamp, John R. Leach, and James S. Davenport, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of conviction for rape in the first degree, the punishment having been assessed at imprisonment in the penitentiary for 20 years. The information charged that appellant, Forest Johnson, Dick Johnson, Raymond Scaggs, and Dan Seaggs, in Delaware county, on or about the 13th day of August, 1919, did unlawfully, feloniously, against the will of Lillie Hayes, and by force and violence, sufficient to overcome her resistance, have sexual intercourse with her, she, the said Lillie Hayes,, not being the wife of either of said defendants.

A'motion to quash and set aside the information was interposed and overruled, and a general demurrer was interposed and overruled; the defendants then filed a petition for change of venue, which was denied. The defendants then asked and were granted a severance. Upon appellant’s separate trial the jury returned their verdict as above stated.

The errors assigned are substantially as follows: That the court erred in overruling the motion to quash, and the demurrer to the information; that the court erred in refusing to grant a change of venue; that the verdict is contrary to law and the evidence; that the court erred in admitting incompetent and prejudicial evidence: that the court erred in giving certain instructions and in refusing to give- two requested instructions and that the court erred in permitting improper remarks by the county attorney. We will dispose of these assignments of error in the order startd.

The grounds of the motion to set aside the information are that—

"The original complaint was filed before S. R. Beck, justice of the peace in the town of Bernice; that on the defendant’s ¿pplieation, and by agreement of the parties, the cause, was transferred to S. C. Platt, justice of the peace in the town of Grove, and the defendants were held to answer as the result of the preliminary examination before said justice. S. C. Platt; that the said S. R. Beck acted outside of the justice district for which he was appointed justice of the peace, and for this reason his acts were illegal and a nullity. ’'

In support of the motion to set aside, the county clerk testified:

“The incorporated town of Bernice is. in township No. 5, which township is in justice district No. 4; that said S. R. Beck was appointed justice of the peace to fill a vacancy caused by the resignation of E. T. Tompkins, justice of the peace of the town of Bernice, and that S. R. Beck, at the time he was appointed, was a resident of the town of Bernice.”

It is apparent from the record that the motion to set aside does not state facts sufficient to set aside the information, and the proof offered does not support the grounds alleged in the motion. Upon the request of the defendants and by agreement of the parties the preliminary examination was held before S. C. Platt, the committing magistrate; this left nothing for the defendants to complain of. Upon the record before us the motion to set aside the information was properly overruled.

The sufficiency of the information is not questioned in appellant’s brief, and we find that it is sufficient, and the demurrer thereto was properly overruled.

The ground set up in the application for change of venue was:

“That the minds of the inhabitants of Delaware county are so prejudiced against each of the defendants that a fair and impartial trial cannot be had in said county. ’ ’

The application was also supported by the affidavits of three other persons. The court overruled the application. It has been the uniform holding of this court that the granting or refusing of a change of venue is, under the statute, a matter resting within the sound discretion of the trial court, and, unless it clearly appears there is an abuse of such discretion, this court will not reverse the judgment for a failure of the trial court .to grant a change of venue. Browder v. State, 16 Okla. Cr. 43, 180 Pac. 571; Smith v. State, 14 Okla. Cr. 348, 171 Pac. 341; Gentry v. State, 11 Okla. Cr. 355, 146 Pac. 719; Edwards v. State, 9 Okla. Cr. 306, 131 Pac. 956, 44 L. R. A. (N. S.) 701; Sayers v. State, 10 Okla. Cr. 234, 135 Pac. 1073; Tegeler v. State, 9 Okla. Cr. 138, 130 Pac. 1164; Turner v. State, 4 Okla. Cr. 164, 111 Pac. 988. Upon the record before us we are of the opinion that there was no error in refusing a change of venue.

The alleged rape was committed about midnight of the day alleged, at the home of prosecutrix in Delaware county, five miles south of Afton. The prosecutrix and her six children occupied a two-room house; the oldest girl 14 years old, the next a girl 12 years old, the next a boy 10 years old, the next a girl 8 years old, the next a boy 4 years old, and a baby boy 20 months old. She testified:

“I had been asleep. Some one hollered, ‘Hello.’ I raised up and asked what they wanted. Some one said they were looking for a man by the name of O’Conner, and thought he'was there in the house. I said, ‘There is no men folks here.’ They went away from the door, and I got up and dressed, and with my daughter began to search for a knife I had there, or a piece of stove wood to protect ourselves. In 5 or 10 minutes they came back. They said they were lawyers. Dick Johnson had a little pistol. He pointed it at me, and told me to put the knife down. I laid it on the incubator. Then he called to the others and .said, ‘Come on; lets search the house.’ Then he pointed the gun at us, and told us to throw up our hands; he was going to search all of us. As he said this he passed my little girl, who was standing near the door, and grabbed my arm and started on through the house. I tried to jerk loose from him, and held on to the door. He jerked me through and kept dragging me on ont towards the smokehouse.' I began screaming, and he said he would shoot me if I hollered,' but I kept on hollering. He took me around the smokehouse. Then he hit me with his fist and knocked me down. Then he said, 'Come on, boys, and hold her,’ and the others came and held me fast on the ground while Dick Johnson ravished me. Then Dan Scaggs did the same thing. Then Forest Johnson ravished me, while I was begging, screaming, and fighting and doing all that was within my power to stop him. Then Raymond Scaggs started to perfom the same thing. No one was holding me then; I was worn out and.couldn’t hardly move, and I said Mr. Jarvis was coming, and they all disappeared. My head was all bruised, and my clothes were all torn. When I came to myself I gathered up my children, and we went to Mr. Jarvis’ place and stayed there until the next morning. It was a bright moonlight night.’"’

Iva Smith, daughter of Lillie Hayes, testified:

“My age is 14. When the men came, I got up and put on my clothes. I know Forest Johnson; and he was there that night. Dick Johnson had a small pistol in his hand, and said he was going to search the house. Then he took hold of mamma’s arm. When they came to the door, she told him she was not going any farther, and he jerked her into the kitchen. He told her to come on out; he wanted to ask her a question. She said she was not going, and he jerked her out into the yard. Forest Johnson and another man were in the kitchen; I heard mamma hollering, and said I was going out; he said I was not. A man outside told him to come on, it was his time next, and Forest Johnson went out. After a while mamma fell into the door. We picked up the children and went over to Mr. Jarvis’ place.”

The testimony of Eva Smith was, in substance, the same as that of her sister, Iva.

As a witness in his own behalf appellant, Forest- Johnson, testified:

“My age is 22 years. I have lived in Delaware' county 12 years, except about 2 years that I was in the service. On the night of August 13th, we went to a charivari at Mr. Reed’s. Then we got in buggies and went to Mrs. Hayes. "When we got there Raymond Scaggs and Dick Johnson went up to the house; Dan Scaggs and myself stayed back, and I don’t know what they did or said to this lady. Dick talked to her, and they '.went around the house. Dan Scaggs and myself walked up and stood behind a brick chimney. Dick Johnson and this lady locked arms and walked towards the smokehouse; I stepped into the house where the children were and talked to them; I knew the two oldest girls. I did not have a gun. One of the children said, ‘Where is Mamma"? I said, ‘She is outside the house.’ Another said, ‘Are they going to hurt her?’ and I said, ‘No, they are not going to hurt her; she will be back in a few minutes.’ Raymond Scaggs came to the door and said, ‘Let’s go; there is nothing doing;’ and. I walked out of the house, and we went away. I did not ravish Mrs. Lillie Hayes, and I was not out in the back yard with her, and I do not know what happened out behind1 the smokehouse.”

The testimony in the case is very voluminous, covering several hundred pages, but the foregoing excerpts suffice to show that the case was one for the consideration of the jury. The testimony on the part of the state, if credited, as it was, was amply sufficient to sustain the verdict.

Some exceptions were taken during the course of the trial to the admission of evidence bearing upon the issues in the case, but we are of the opinion that none of them were well taken.

No objection was made or exception taken to any of the instructions given by the court. Taken as a whole, the instructions correctly covered every phase of the case presented by the testimony.

During the argument of counsel for the prosecution, an assistant prosecutor made the remark, “These boys tell you that she walked out glibly, arm in arm with a stranger.” Whereupon counsel for the defendant objected to the remark, and the eourt overruled the objection. The remarks of counsel must be considered and construed in reference to the evidence, and, considering the testimony in the ease,- the remark was not objectionable.

We have given this case our careful consideration, and find no error justifying a reversal. The judgment is therefore affirmed.

MATSON and BESSEY,. JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CHARLES GILBERT v. STATE.
    No. A-3780.
    Opinion Filed Nov. 22, 1921.
    (201 Pac. 1118.)
    Appeal from County Court, Tulsa County; W. B. Williams,, Judge.
    Charles Gilbert was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    D. G. Elliott, for plaintiff in error.
    The Attorney General and E. L. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Charles Gilbert, was; tried and convicted in the county court of Talsa county on an information charging that in said county, on the 11th day of August, 1919, he did unlawfully have in his possession certain intoxicating liquor, to wit, 36 pints of Choetaw beer, which said Choctaw beer contained more than one-half of 1 per cent, of alcohol, measured by volume, and capable of being used as a beverage, with the unlawful intent to barter, sell, and otherwise dispose of the same, and his punishment fixed at, confinement in the county jail for 6 months and a fine of.$500. From the judgment rendered in accordance with the verdict on the 26th day of March, 1920, he appealed by filing in this court on May 22, 1920, a petition in error with ease-made. The errors assigned are that the verdict '.is contrary to the law and the evidence; that the court erred in admitting incompetent testimony, and erred in overruling the motion for a new trial. The defendant is not represented by counsel in this court, but we have examined the record and find no material error, and we think the testimony, without any doubt, is ample to sustain the conviction. The judgment of the lower court is therefore affirmed.


text:
    TOM KING v. STATE.
    No. A-4053.
    Opinion Filed Nov. 23, 1921.
    (201 Pac. 1119.)
    Appeal from County Court, Caddo County; C. B. Case, Judge.
    Tom King was convicted of a violation of the prohibitory liquor law, and he appeals.
    Appeal dismissed.
    Morgan & Osmond, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, Tom Bang, was convicted on a charge of selling one quart of whisky to Ira Hamilton, .and was sentenced to be confined in the county jail for 30 days and to pay a fine of $50. From the judgment he appealed by filing in this eoiirt on August 17, 1921, a petition in error with case-made. His counsel of record has moved the court to dismiss the appeal. The motion to dismiss is sustained, and i«t is ordered that the appeal herein be dismissed.


author: BESSEY, J.

text:
    BERT DAVIS v. STATE.
    No. A-3647.
    Opinion Filed Nov. 23, 1921.
    (201 Pac. 1001.)
    (Syllabus.)
    1. Evidence — Absent Witness' Testimony Given at Preliminary Hearing. Where the accused at a former trial or at a preliminary hearing once enjoyed his right to be confronted by a witness against him and had the privilege of cross-examining the witness, if at a subsequent trial, involving the same issues, it satisfactorily appears that the witness has died, become insane, or has permanently left the state without collusion or procurement of either party and that his presence with due diligence cannot be had, or where the witness is sick and unable to testify, or his whereabouts cannot with due diligence be ascertained, a transcript of the testimony of such witness may he introduced as the evidence of such absent witness,
    (a) Having once been confronted with a witness, and having had the right to cross-examine him, the admission of such transcript in evidence is not in violation of the . constitutional right of the accused to be confronted with witnesses against him.
    2. Same — Necessary Showing for Admission. Where it appears that the attendance of a resident witness could have been had by the exercise of due diligence, the mere showing that on the day of trial the witness is temporarily in another state on private-business is not a sufficient predicate to authorize the reception of his evidence taken at the preliminary hearing.
    3. Larceny — Right to Instruction Covering Explanation of Possession of Stolen Property. Where the accused is charged with larceny and the possession of the stolen property is admitted by the accused, who by himself and others makes a plausible explanation of such possession, which if believed by the jury would indicate his innocence, the accused under such circumstances, at his request, is entitled to appropriate instructions touching upon his possession of recently stolen property.
    Appeal from District Court, Kay County; J. W. Bird, Judge.
    Bert Davis was convicted of larceny and sentenced to-serve a term of four years in the state penitentiary, and he appeals.-
    Reversed and remanded.
    B. C. Wieck, for plaintiff in error.
    . S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   BESSEY, J.

Bert Davis, plaintiff in error, herein referred to as the defendant, was convicted on the 24th day of April, 1919, of the larceny of a Ford touring ear, said to have been stolen early in the month of February, 1918. His, punishment was fixed at four years in the state penitentiary. After the overruling of a motion for a new trial, an appeal was taken and regularly lodged in this court.

The record shows that the subject of the larceny, a Ford touring car, was stolen from the residence of F. C. Hall at Chickasha, Okla., and that the car was afterwards found on the 20th day of February, 1918, in the possession- of one Yince Cumiford, in Kay county, and that Cumiford had purchased the car from the defendant a short time previous. Mr. Hall, the- owner of the ear, went to the premises of Mr. Cumiford and identified the car to the satisfaction of Mr. Cumiford, who then surrendered it to Mr. Hall.

The defendant at this time was engaged in the shoe repairing business at Ponca City where he maintained a shop for that purpose. In addition to this business, he had been engaged in buying and selling second-hand cars, and the testimony on the part of the defendant tends to show that he had bought' this particular car from David Lessert, who was a member of the firm of Lessert & Lessert, and that they conducted a garage at Ponca City; that soon after Davis claims to have purchased the ear, David Lessert disappeared, and though diligent search was made to ascertain his whereabouts, no one had been able to locate him. There is testimony tending to show that Irv Kdllion made or negotiated this trade between the defendant and Cumiford, and that KilHon had delivered the car to Cumiford; that after the defendant was arrested and placed in jail, Cumiford went to see him, and the defendant denied having sold the ear to him.

Numerous assignments of error have been urged why this case should be reversed. Two of these assignments we think are decisive in this case, and these only will be analyzed, namely:

(1). That the court erred in permitting the state to introduce in evidence a transcript of the testimony of F. C. Hall given at the preliminary hearing of this cause, for the .reason that a proper predicate was not laid and proper diligence to obtain the presence of the witness was not shown, .as a condition precedent for the reception of such testimony.

(2). That the court erred in instructing the jury only up<on the state’s theory of the case and, on the same issue, in refusing to instruct the jury upon the defendant’s theory of -the case, tending to explain his possession of the stolen car.

Upon the first proposition, it appears that F. C. Hall’s residence was known to the county attorney and the sheriff .as being in Chickasha, Grady county, Okla.; that Mr. Hall ■had promised the sheriff of Kay county that he would come to Kay county to testify in the case upon notice, without a .subpoena. The case was set for trial in the trial court for the 7th day of April, 1919, and on that day was continued and re•set for the '22d day of April, 1919. On the 16th day of April, the county attorney testified, he put in a call at the telephone office for F. C. Hall at Chickasha and found that he had left' his home temporarily and was informed that he had gone to Wichita Falls, Tex. The county attorney then talked over ■the telephone to Mr. Hall at Wichita Falls, and Mr. Hall explained that he had intended to appear at the trial voluntarily, as promised, but that he had an important oil deal pending in Southern Texas, and that it would be impossible for him to be present on Tuesday, April 22d. The county attorney then appealed to the sheriff to do what he could to persuade Mr. Hall to come. The sheriff then telephoned to Wichita Falls and was informed that Mr. Hall had gone to ¡Southern Texas.

No subpoena was ever issued to the officers of Grady • county, where the witness resided. On the 16th day of April, 1919, a subpoena for F. C. Hall was issued, directed to the sheriff of Kay county, and the sheriff’s return thereon showed, “F. C. Hall not found in Kay county.” Upon this showing the court, over the objections of the defendant, permitted the testimony of F. C. Hall taken at the preliminary hearing to be read to the jury as his deposition.

We have no direct statute in this state with reference to the introduction of testimony of a witness given upon a former trial or preliminary hearing of a case. Section 5543, R. L. 1910, provides:

“The procedure, practice and pleadings in the courts of record of this state, in criminal actions or in matters of criminal nature, not specifically provided for in this Code, shall be in accordance with the procedure, practice and pleadings of the common law.”

The common law in force, in the United States can only be found in the text-books and in the decisions of the various courts of this country. We must therefore look. to these sources to see whether or not the objections offered by counsel for defendant are well founded.

The Constitution of this state, section 20 of the Bill of Rights, provides that in all criminal prosecutions the accused shall have the right. to be confronted with the witnesses against him. At common law it has been almost universally held that the chief and essential purpose of confrontation is to secure the opportunity for cross-examination. Where the witness, after testifying at a former trial, has died, become insane, left the state, is sick and unable to testify, or his whereabouts cannot with due diligence be ascertained, it has been held that if the accused at a former trial once enjoyed his right to be confronted by the witness, his constitutional right to meet the witnesses against him face to face is not violated by the admission of the testimony of such a witness whose pres-enee at a subsequent trial cannot be obtained. Underhill on Criminal Evidence, (2d Ed.) § 265; 2 Wigmore on Evidence, § 1395; Hawkins v. U. S., 3 Okla. Cr. 652, 108 Pac. 561.

It frequently happens that the cross-examination of a witness at a preliminary trial is more or less perfunctory, and that by the time the cause comes on for final trial the defendant is better able, by reason of more time and research, to conduct a thorough cross-examination. There is, of course, also the advantage to be obtained by the personal appearance of the witness in order that the judge and jury may be able to observe the witness’ deportment while testifying, and a certain subjective moral effect is produced. upon the witness. If the witness can be obtained at the final trial, it is the right of the defendant to require his presence. The question heré presented is whether the county attorney, in this instance, under the circumstances above recited, exercised due diligence to produce the personal attendance of the witness F. C. Hall.

The record discloses that Mr. Hall resided in Chiekasha; that no subpoena was ever issued, directed to the sheriff of the county in which he resided, and that for nine days after the case was set Hall may have been at his home in Grady county, and that no compulsory effort whatever was made to obtain his attendance; that the county attorney and sheriff of Kay county relied wholly upon a verbal promise of this witness that he would appear when the case came on for trial. It seems probable that if a subpoena had been issued to the sheriff of Grady county within this period of nine days, service could have been had upon this witness and his attendance compelled.

We think that this court in former opinions has followed & rule sufficiently liberal in permitting testimony taken at a former trial or a preliminary hearing to he used in the absence of the witness, and that .this court should not, by judicial construction, extend or enlarge upon the rule announced in former decisions. In many instances the prosécuting officer might prefer to have the testimony taken at a former hearing read to the jury rather than to run the risk of having the witness appear upon the witness stand to be subjected to a rigid cross-examination in the presence of the jury. To lay down the rule that a mere showing that a resident witness is in another state and that no effort or diligence to produce the witness in open court need .be shown might enable public prosecutors and others, if it .appeared to their interest, to cause witnesses to absent themselves from the jurisdiction of the court to escape further cross-examination. To say that no diligence is required to produce the witness in open court, where it is possible to do so, is not in keeping with the spirit or the letter of the constitutional guaranty that a defendant in a criminal action has a right to be confronted- face to face with the witnesses against him. Warren v. State, 6 Okla. Cr. 1, 115 Pac. 812, 34 L. R. A. (N. S.) 1121; Baldock v. State, 16 Okla. Cr. 203, 182 Pac. 265; Temple v. State, 15 Okla. Cr. 176, 175 Pac. 733. As to witnesses out of jurisdiction, see notes to 25 L. R. A. (N. S.) 874; Motes v. U. S., 178 U. S. 458, 20 Sup. Ct. 993, 44 L. Ed. 1150.

We do not mean to say or intimate that the county attorney or those interested in this’ prosecution did not desire the presence of the witness Hall. What we do mean to hold is that it would be dangerous to relax the rule that a reasonable effort and diligence to produce the witness should be shown, where he and his place of residence were within reach of the court’s processes after the cause was set for trial, and in our opinion no such showing was made here. The defendant should not be deprived of the right to be confronted by the prosecuting witness at the final trial merely because the witness desired to transact important business in another state.

In the case of Motes v. U. S., cited above, Mr. Justice Harlan, speaking for the court, said:

“We are of the opinion that the admission in evidence of Taylor’s statement or deposition taken at the examining trial was in violation of the constitutional right of the defendants to be confronted with the witnesses against them. It did not appear that Taylor was absent from the trial by suggestion, procurement, or act of the accused. On the contrary, his absence was manifestly due to the negligence of the officers of the government. Taylor was a witness for the prosecution. He had been committed to jail without bail. We have seen that the official agent of the United States in violation of law took him from jail- after the trial of this case commenced, and, strangely enough, placed him in charge, not of an officer, but of another witness for the government, with instructions to the latter to allow him to stay at a hotel at night with his family. And on the’ very day when Taylor was called as a witness, and within an hour of being called, he was in the corridor of the courthouse. When called to testify, he did not appear.”

Touching upon the second assignment of error herein considered, instruction No. 5 given by the court was as follows:

“The jury are instructed that the possession of stolen property recently after the larceny thereof, when unexplained, may be sufficient to warrant the jury in inferring the guilt of the party in whose possession it is found. Whether such inference should be drawn is a fact exclusively for the jury.”

Excepted to by the defendant.

The instructions of the court should be pertinent to the evidence produced at the trial. Thornsberry v. State, 8 Okla. Cr. 88, 126 Pac. 590; Cohn v. State, 4 Okla. Cr. 494, 113 Pac. 217.

Here tbe defendant gave a plausible explanation of his possession of the stolen ear. His possession, therefore, was not “unexplained,” in any sense covered by this instruction.

The defendant requested an instruction, which was refused by the court, as follows:

“You are instructed that possession of recently stolen property alone is not sufficient proof of the crime charged in the information to warrant a conviction, when a reasonable explanation of the possession of same is made and the circumstances tend to support the explanation.”

The court having given the instruction he did', relating to the inference to be drawn from the unexplained possession of recently stolen property, he should, in fairness to the de-dendant, have given a further instruction covering the defendant’s theory of the case and the evidence tending to explain his possession of this property.

For the reasons stated, the cause is reversed and remanded.

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


text:
    J. W. THOMPSON v. STATE.
    No. A-3000.
    Opinion Filed Nov. 25, 1921.
    (201 Pac. 1004.)
    (Syllabus.)
    Chattel Mortgages — Private Sale of Chattels by Assignee of First Mortgage, not Punishable. Where there is a first and a second chattel mortgage, of record, covering the same property, and where the assignee of the first mortgage, by agreement with the mortgagor, authorizes and directs the sale of the mortgaged property at private sale, neither the assignee nor the mortgagor, acting for the assignee, will be punishable for the illegal disposition of mortgaged property under the provisions of section 2756, R. L. 1910, where it appears that there was no intention by either to defraud the holder of the second mortgage, and where the second mortgagee in fact suffered no harm by such informal foreclosure.

      Appeal from District Court, Love County; W. F. Freeman, Judge.
    J. W. Thompson was convicted of disposing of mortgaged property, and he appeals.
    Reversed and remanded.
    G. Y. Pardue, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   BESSEY, J.

An information was filed in the district court of Love county on November 3, 1916, charging J. W. Thompson, plaintiff in error, herein referred to as the defendant, with having on or about the 1st day of January, 1916, unlawfully, willfully, purposely, and feloniously sold and disposed of mortgaged property. On this charge the defendant was tried and found guilty, and his punishment fixed at a fine of $100 and costs, amounting to $63.40.

The record discloses that the defendant, on February 3, 1914, executed a chattel mortgage in favor of James D. Freeman of the amount of $500, covering three head of horses, six head of cattle, and their increase, together with a growing crop and some farm implements; afterwards, on the same day, the defendant executed another chattel mortgage of the amount of $176.45, covering the same property, to J. W. Scan-lan, and that J. W. Scanlan had actual and constructive notice of the prior mortgage executed in favor of Freeman.

On January 13, 1915, Mrs. T. C. Thompson, wife of the defendant, out of her own personal, separate estate, purchased the notes given by her husband to Freeman, and took an assignment of the' notes and the mortgage securing the same. That soon after, as assignee of the mortgagee, Freeman, she took charge of the property covered by the mortgage, and at various times during the year 1915 she, by agreement with her husband and with his consent and assistance, sold portions of this property from time to time to various individuals, without the consent of J. W. Seanlan, holder of the second mortgage. There is evidence tending to show that the aggregate amount Mrs. Thompson received from these several sales was insufficient to satisfy the first mortgage, and from this fact it may be inferred that the holder of the second mortgage was not injured by this informal method of foreclosure. Under the circumstances there appeared to be no willful, felonious intent on the part of Mrs. Thompson and the defendant to defraud any one. Whether the property would have sold at public sale for more than enough to satisfy the first mortgage is of course a matter of speculation.

The state’s testimony in chief, in our opinion, was not sufficient to warrant a conviction, for the reason that the evidence tending to show that certain portions of the property were sold was vague and indefinite as to the identity of the property; indefinite as to the time when sold, and as to w'hether or not the defendant had anything to do with the sales. At the close of the state’s testimony the defendant demurred to the evidence, which amounted to a request for an instructed verdict in favor of the defendant. This demurrer was overruled. The defendant then introduced his testimony, in which he testified that in February, 1915, his wife had purchased the Freeman mortgage, and Mrs. Thompson admitted that she authorized her husband, the defendant, to dispose of some of the property at private sale from time to time during the year 1915, and that she herself disposed of other portions of it, with full knowledge that the Seanlan mortgage was in full force and effect and unsatisfied.

Section 2755, R. L. 1910, under which this prosecution was brought, is as follows:

“ Any mortgagor of personal property, or his legal representative, who, while sneh. mortgage remains in force and unsatisfied, conceals, sells, or in any manner disposes of such property, or any part thereof, or removes such property, or any portion thereof, beyond the limits of the county, or materially injures or willfully destroys such property, or any part thereof, without the written consent of the holder of such mortgage, shall be deemed guilty of a felony, and shall, upon conviction, be punished by imprisonment in the penitentiary for a period not exceeding three years or in the county jail not exceeding one year, or by a fine not to exceed one hundred dollars: Provided, that the writing containing the consent of. the holder of the mortgage, as before specified, shall be the only competent evidence of such consent, unless it appear that such writing has been lost or destroyed. ’ ’

Where the written provisions of a contract are for the protection or exclusive benefit of one of the parties to a contract, that party may usually waive such provisions, orally or by conduct indicative of a waiver. A parol consent operates as a waiver even in the face of a provision in a mortgage requiring written consent. It has been held in many cases that the same rule applies where a statute makes it an offense to sell or dispose of mortgaged property without the written consent of the mortgagee. Carr v. Brawley, 34 Okla. 500, 125 Pac. 1131; 43 L. R. A. (N. S.) 302, and notes, pages 306 and 307, citing numerous cases.

We eannot see how any of .the parties to a contract, where the state is not interested and no third person is aggrieved, could be punished criminally for mutually waiving a written covenant in a. contract. It would amount to an absurdity to say that an act done according to method prescribed by civil procedure might amount to a punishable offense under the. Criminal Code.

By the provisions of our statutes and decisions of our courts there are four ways in which a mortgagee may foreclose a chattel mortgage; to wit: (1) By suit in equity brought for that purpose. (2) in the manner and upon the notice prescribed for the sale of pledged property. (3) Upon notice as prescribed by section 4027, R. L. 1910. (4) By private sale by the mortgagee where the notice and manner of sale, as prescribed by statute or as prescribed in the power of sale contained in the mortgage is waived. Sections 4026 and 4027, R. L. 1910; First National Bank of Ardmore v. Dougherty, 31 Okla. 179, 120 Pac. 656, Ann. Cas. 1913D, 411.

It appears conclusively from this record that Mrs. Thompson, for an adequate and valid consideration, succeeded to all the rights of Freeman, the original first mortgagee. Our statute makes no provision for filing or recording an assignment of chattel mortgage. In the absence of a statute requiring it in express terms or by necessary implication, it is not necessary for the assignee to record the assignment in order to protect his rights. Wills v. Fuller, 47 Okla. 720, 150 Pac. 693; First National Bank v. National Livestock Bank, 13 Okla. 719, 76 Pac. 130; 11 C. J. 664. From this it will be seen that Mrs. Thompson, assignee, had a right to take charge of the mortgaged property and foreclose the mortgage by any method and in the same manner that Freeman might have done prior to the assignment; and so long as such foreclosure is conducted fairly, without any intent to defraud and without in fact defrauding the holder of the second mortgage, such holder of a second mortgage has no cause for complaint.

Under the facts disclosed by this record, the defendant did not dispose of this mortgaged property — the disposition was made by Mrs. Thompson, assignee of the first mortgage, with the consent of the mortgagor, the defendant here. The fact that the mortgagor and the assignee of the mortgage were husband and wife does not alter the situation, except that their conduct will be more closely scrutinized where the rights of third persons may be involved. Viewing all the circumstances together, it does not appear that it was the intention of either the mortgagor or the assignee to defraud the holder of the second mortgage nor that the rights of the holder of the second mortgage were in fact impaired.

Upon the question of whether it was the intention of the mortgagor to defraud the holder of the second mortgage, and whether as a matter of fact the mortgagee in the second mortgagee was defrauded, this court, in the case of Watson v. State, 11 Okla. Cr. 542, 149 Pac. 926, said:

“We are inclined to the view that it must have been the purpose of the Legislature to provide a statute which would give the mortgagee adequate and ample protection against fraud, annoyance, and unnecessary expense, and that therefore the intention of this act was to penalize any mortgagor who removed his property from one county to another, * * * and who by such removal either defrauded the mortgagee or intended to defraud him. In our judgment, the purpose of this law is' accomplished when it is given this construction. Under this view any mortgagor who removes mortgaged property, as prohibited, with the intent to defraud the mortgagee, would be guilty of a violation of the statute; or, if such mortgagor voluntarily removes such property and by reason of such removal fraud is actually perpetrated on the mortgagee, whether such fraud was conceived before the removal occurred or afterward, or whether such fraud was intended or not, such an act would be- punishable as provided. It can hardly be said-that a person should be .sent to the penitentiary, deprived of his citizenship, and branded as a felon for the remainder of his life, who has done no act which injured any one and has done no act which was intended to injure any one.”

Applying the doctrine announced in the Watson Case just quoted and keeping in mind the fact that Mrs. Thompson, assignee, and not the defendant, disposed of this property, so far as this record shows, fairly and for an adequate consideration, the defendant would be guilty of no crime in assisting his wife, the assignee of the first mortgage, in foreclosing the mortgage in the manner disclosed in this record.

The judgment of the trial court is therefore reversed and remanded.

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


author: DOYLE, P. J.

text:
    E. W. WOODARD v. STATE.
    No. A-3743.
    Opinion Filed Nov. 30, 1921.
    (201 Pac. 1000.)
    (Syllabus.)
    Homicide — Evidence to Sustain Verdict for Assault witii Intent to Kill. In a prosecution for shooting another with intent to kill, evidence held sufficient to support the verdict and judgment of conviction.
    Appeal from District Court, Stephens County; Cham Jones, Judge.
    E. W. Woodard was convicted of assault to murder, and he appeals.
    Affirmed.
    Bond & Kolb, for plaintiff in error.
    The Attorney General and E. L, Fulton, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Woodard, was convicted on a charge of shooting one Grover Grey with intent to kill, and his punishment fixed at imprisonment for a term of one year and one day. He has appealed from the judgment rendered upon such conviction, and there has been no appearance on his behalf in this court.

The errors assigned are substantially as follows: That the verdict is not sustained by sufficient evidence and is contrary to law; that the court erred in admitting incompetent testimony and in rejecting legal and material testimony, all to the prejudice of the rights of the defendant.

There is very little conflict in the evidence. It appears the defendant lived in a tenant house on the farm of the father of Grover Grey, and there was some disagreement over the fencing of a garden which resulted in the shooting charged.

Grover Grey testified:

“I went up by Mr. Woodard’s house to see if he would fence his garden. He said he did not have any wire to fenee it with. I told him to take one wire from the fence around the house. Then he said he did not have any posts. I went back to my father. He said he could use the posts at the barn. Then I returned to Mr. Woodard and told him where to get the posts, and he said it was my father’s place to fenee the garden. I said I did not think so, and started away. I had taken about five steps when I heard him say, ‘God damn you, I will kill you, ’ I looked back. He had a shotgun on me, and it snapped. I said there was no need of shooting; we could fix it up without any trouble. He broke the gun and loaded it and shot me in the hand and side from the knee up. I fell. Then I saw him hold the gun on my father, and I heard him say, ‘ Old man, stop, or I will let you have the same thing. ’ ’ ’

Earl Cole testified:

“The defendant lived within half a mile of my place. About 9 o’clock the night before the shooting he came to my place and borrowed my Winchester shotgun.”

Dr. Decker testified:

' “I was called to attend Grover Grey. There were shot scattered from his knee up. Two penetrated the abdomen and 60 the leg. There were 23 shot in his hand, and 2 or 3 went through.”

For the defendant his wife testified:

“Grover Grey came to our house that day and wanted us to fence the garden. My husband told him he didn’t have any fenee posts. He came back again in about 10 minutes and said, ‘I am going to cut that feed or kill you.’ My husband was standing in tbe door. He raised bis gun and shot towards his hand. Grover said, ‘I will not say any more.’ Then he fell, and his father came and fooled around him.”

As a witness in his own behalf the defendant testified:

“Grover Grey started cutting my feed without asking me about it; I ordered him to stop and get off my premises until I gathered the crop and paid him the rent. The next day he came to my house and said, ‘We are going to turn our stock in, and if you want your garden you had better fenee it.’ I said, ‘You furnish the wire and I will fence it.’ Then he went to his father. In about 10 minutes he came back and said, ‘If you want to fence the garden, you can get your wire and post; we don’t fence anything.’ I was standing in the door. Then he said, ‘I am going to cut that feed or I will shoot hell out of you,’ and he made towards me. I grabbed the gun and shot him as quick as I could shoot. As he fell he said, ‘Don’t shoot me any more.’ ”

Where there is substantial evidence to show the guilt of the accused, this court will not weigh the sufficiency of the evidence to sustain a conviction. The weight of the evidence was for the jury. The rule is that a man will be presumed to intend the natural and necessary consequences of his act, and intent or design to kill in this class of cases may be-presumed from the character of the weapon used.

After a careful examination of the record, we conclude that there was no error which could have been prejudicial to the defendant.

The judgment of the lower court is therefore affirmed.

MATSON and BESSEY, JJ., concur.


text:
    C. W. GOBEN v. STATE.
    No. A-4002.
    Opinion Filed Oct. 10, 1921.
    Rehearing Denied Nov. 30, 1921.
    (201 Pac. 812.)
    (Syllabus.)
    1. Trial — Guaranty of Fair and Impartial Trial. Every person charged with crime, whether guilty or innocent, is entitled to a iair and impartial trial according to the due and orderly course of the law, and it is a duty resting upon the courts to see that the guaranty of such a trial, conferred by the laws upon every citizen, shall be upheld and. sustained. '
    2. Same — Capital Offense — Right to List of State's Witnesses Before Trial. The Bill of Rights (Const, art. 2, § 20) provides that ' ‘‘in capital -cases, at least two days before the case is called for trial, he [the accused] shall be furnished with a list of, the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their post office addresses.” Held, that under this provision of the Constitution the defendant in a capital case does not have .to demand a list of the witnesses to be called in chief, because the Constitution makes the demand for him, and the trial court is without authority to force him to trial until this provision has been complied with, unless the defendant has waived this right.
    3. Same — Right to Reasonable Time to Prepare for Trial. Under the constitutional guaranty that a person accused of crime shall have the right to the assistance of counsel, counsel appointed to defend the accused must Be given a reasonable time within which to prepare for trial, to investigate the facts, and examine the law applicable to the case. -
    4. Same — Denying Continuance in Murder Case Held Abuse of Discretion. In this case the information was filed, and on the same day defendant was brought from another county, where he had been held in custody froha the time of his arrest, and counsel appointed to defend him, then arraigned, a demurrer filed and overruled, and then a plea of not guilty entered. Thereupon the case was" called for trial, and defendant filed his affidavit for a continuance, on • the ground of want of time to prepare for trial, which was overruled, and on the same day the case proceeded to trial. Held, that the denial of a continuance to another day of the term was manifest abuse of judicial discretion.
    Appeal from District Court, Comanche County; A. S. Wells, Judge.

      C. W. Goben was convicted of murder, and he appeals.
    Reversed and remanded for new trial.
    Lewis R. Morris, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, . Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, C. W. Goben, was convicted in the district court of Comanche county of murder, and the death -penalty assessed, upon an information charging him and one William Tait with the murder of Russell Sprague in said county on the 25th day of March, 1921. To reverse the judgment and sentence of death rendered in pursuance of the verdict, an appeal was duly perfected.

One of the grounds of the motion for new trial, and assigned as error, is that the court erred in refusing to grant a continuance. On the 31st day of March, 1921, said defendants were arrested at Perryton, Tex.; from there they were taken by the sheriff of Comanche county to Oklahoma City and placed in the county jail. On the 8th day ■•of April, they were taken from Oklahoma City to the town of Fletcher, in Comanche county, for their preliminary examination, and on the same day they were taken back to the county jail at Oklahoma City. On the 12th day of April, 1921, the information was filed in the district court of Comanche county, and on the same day the defendants were taken to Lawton and arraigned. The court, being then advised by the defendant Goben that he had not secured counsel and was without means to employ counsel, appointed A. J. Burton, a member of the bar present, to represent him.

The defendant Tait entered a plea of guilty, and the court fixed the 14th day of April as the time at which judgment should be pronounced upon his plea of guilty, at which time the court pronounced judgment and sentenced the defendant Tait to suffer death by electrocution. See Opinion of the Judges, 18 Okla. Cr. 598, 197 Pac. 546. Upon his arraignment on the 12th day of April, the defendant Goben filed a demurrer to the information, which was overruled and exception allowed. He then entered his plea of not guilty and the ease was called for trial. Thereupon the defendant Goben filed a motion for continuance, supported by his affidavit, which was overruled, and the jury was impaneled to try the case, which trial resulted in a verdict as above stated, rendered on the 14th day of April. Motions for new trial and in arrest of judgment were duly filed and overruled. On April 18th the court rendered judgment, and the defendant was sentenced to suffer death by electrocution, appointing June 18, 1921, as the day of execution.

It is contended that the court violated the defendant’s rights in compelling him to go to trial without sufficient time for him or his counsel to prepare for his defense. The defendant’s affidavit for continuance, duly verified, among others, contained the following statements:

“That he was arrested on the night of the 31st day of March, 1921, at Perryi'bn, Tex., and was taken by the sheriff of Comanche county directly to Oklahoma City, and was never brought to the county seat of Comanche county until brought here by the sheriff of Comanche county on the day set for his trial, namely, April 12, 1921. That he was wholly unable to secure any attorney in Oklahoma City, for the reason that he was not acquainted with any one at that place, and that af-fiant is informed and believes, and therefore states as a fact, that his wife and parents did not know and could not find out where he was placed by the said sheriff of Comanche county after his arrest, and for that reason they were not able to assist him in securing counsel. That on the 5th day of April, at the efforts of his father at Lawton, affiant secured audience with an attorney. That from that time to the present, to wit, the 12th day of April, 1921, the day for trial, affiant has not seen nor had any counsel whatever with any attorney, except about 15 minutes on the day .of his preliminary at Fletcher, which preliminary was on Friday, the 8th day of April, 1921.
“Affiant further states that the fact of his not being prepared and ready for trial at this time is not due to any fault or neglect on his part, but due to his being unable to see and to consult an attorney, because of his absence out of Comanche county, until the day of trial. Affiant further states that he can get ready for trial by the first day of the next term of this court, and therefore affiant prays for a continuance of this cause of action as relates to himself in order that justice and right may prevail.”

In resisting the motion, Fletcher S. Riley, county attorney, as a witness on behalf of the state, testified as follows:

“A. J. Burton, counsel for the defendant, stated to me five or six days ago that he thought he would represent C. W. Goben. I told him I would give him access to his client, and then- gave him a letter of introduction, stating that Mr. Burton informed me that he represented C. W. Goben, and that it was my desire that Mr. Burton be permitted to consult with these defendants, C. W. Goben and William Tait, and I advised him to go to the sheriff to ascertain where they were held. Since that time he stated that he had consulted with Goben at Oklahoma City, and Mr. Burton was present at the preliminary at Fletcher.”

To the ruling of the court in refusing the continuance the defendant duly excepted, and the trial proceeded, with the result previously indicated.

Every person charged with crime, whether guilty or innocent, is entitled to a fair and impartial trial — that is, a trial in accordance with the rules of law, and the principles of justice; and it is a duty resting upon the courts to see that this guaranty conferred by the Constitution upon every citizen is upheld and sustained. It is evident from the record that the defendant C. W. Goben was not accorded a trial in conformity to the laws of the state.

The Bill of Rights (Const, art. 2, § 20) provides:

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed: Provided, that the venue may be changed to some other county of the state, on the application of the accused, in such manner as may be prescribed by law. He shall be informed of the nature and cause of the accusation against Mm and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf. He shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their post office addresses.”

The Code of Criminal Procedure provides that:

“If on the arraignment, the defendant require it, he must be allowed until the next day, or such further time may be allowed him as the court may deem reasonable, to answer the indictment or information.” Section 5778, Rev. Laws. ' And that:
“When an indictment or information is called for trial, or at any time previous thereto, the court may, upon sufficient cause shown by either party, as in civil eases, direct the trial to be postponed to another day in the same or next term.” Section 5837, Rev. Laws.

The record does not show that this defendant was at any time furnished with a list of witnesses to be called in chief to prove the allegations of the information, together with their post office addresses, or that he was served with a copy of the information, nor does the record show that the defendant waived these constitutional rights. In State v. Frisbee, 8 Okla. Cr. 406, 127 Pac. 1091, it is said:

“That the provision of the Constitution requiring that in capital cases a defendant shall have the right to have at least two days’ notice of the list of witnesses to be used in chief against him, together witii their post office addresses, confers a valuable right upon a defendant in a capital case cannot be denied. It gives him an additional opportunity to make inquiry as to the character, bias, and antecedents of the witnesses against him, and to learn something of their testimony and thereby better enable him to prepare for trial. He is not required by law to announce ready for trial in a capital ease, and it would be error to force him into trial if he makes seasonable objection, unless he has had this notice and this opportunity to make these investigations, and even after the two days have expired, if he can show that as the result of such notice, and as a result of such investigation, he has made discoveries as to matters not previously known to him, which will require him to make additional preparation for trial, upon such a showing under oath the court, in its discretion, may grant him a further postponement or continuance in order that such preparation may be made. It is the duty of the courts to protect a defendant in a capital ease in the full enjoyment of this right. This is the substance and essence of the right conferred by the constitutional provision under discussion.”

In Spess v. State, 13 Okla. Cr. 277, 164 Pac. 131, it is-said :

“Regardless of our feelings in the matter, or any resentment' we might have against the ' atrocious crime charged against the plaintiff in error, the violation of a plain, simple, and unambiguous demand of the Constitution must not be tolerated by the courts, and responsibility in such cases must rest upon the tribunal in which it is practiced or attempted. * * * Under the last provision of this section of the Constitution, the accused in capital cases does not have to demand a list of the witnesses, together with their post office addresses, but-the Constitution makes that demand for him; and, unless he. waives it, he cannot be legally put. upon trial until that demand has been complied with. Ordinarily, in applications for continuance, the court may exercise a sound judicial discretion; but it would be absurd to say that this discretion could go to the extent of nullifying a plain, simple, unambiguous demand of the fundamental law of the state, made exclusively for the benefit of the accused. The court in the case at bar had no more authority to force the plaintiff in error to trial until he had waived this demand of the Constitution, or it had been complied with, than he would have had to force him to trial without an information' or a jury. For both of these rights rest upon the same authority and are guaranteed to the accused in the same section of the Constitution; and no one can nullify them, and the accused alone can waive them.”

While the affidavit for continuance does not particularly state these grounds, it cannot be said that the defendant thereby waived any right guaranteed by the Constitution. This court has repeatedly held that with respect to exceptions the court will look at the substance, rather than the form, with a view to promote justice.

The granting or refusal of an application for continuance on the ground of want of time for the defendant’s counsel to prepare for trial is ordinarily discretionary with the trial court. However, the discretion which the trial court exercises must be judicial, not arbitrary, and must be exereised in conformity with the laws of the state.

The right of the accused to the assistance of counsel in making his defense has long been regarded in this country as essential to the due administration of justice in criminal cases. Says Mr. Cooley:

“With us it is a universal principle of constitutional law that the prisoner shall be allowed a defense by counsel.” Const. Lim. 334.

In order that the accused may have the full benefit of this constitutional right, the Code of Criminal Procedure provides :

“If the defendant appear for arraignment, without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desires the aid of counsel. If he desires, and is unable to employ counsel, the court must assign counsel to defend him.” Section 5773, Rev. Laws.

The constitutional right of representation by counsel certainly includes a reasonable time within which to prepare for trial. In the case of Lawson v. Territory, 8 Okla. 1, 56 Pac. 698, it is said :

“One accused of crime has the right to have the aid of counsel to defend him, and the constitutional guaranty that he shall have the right to the assistance of counsel means that he shall have the benefit of the best skill and thought that his counsel can give him; and an attorney cannot, under the most favorable circumstances, properly defend one charged with murder, without having a reasonable time to prepare his case for trial. We are of the opinion that the trial court, in compelling the defendant to go to trial the next day after the indictment was returned, and immediately upon the overruling of the demurrer, exceeded its discretionary power. The defendant should have been granted further time. ’ ’

In Hensley v. Comm. (Ky.) 74 S. W. 677, the conviction for murder was reversed because the court refused to grant a continuance and forced the defendant into a trial on the day the indictment was found. In State v. Collins, 104 La. 629, 29 South. 180, 81 Am. St. Rep. 150, four days was held to be too short a time in which to prepare a defense in a murder ease. In the opinion it is said:

“This was a capital case. The life of a human being was at stake, and for the time being it was sheltered by the presumption of innocence. Great deliberation — an utter absence of precipitancy — should have characterized every movement of the court leading up to the conviction. ‘The law travels with a leaden heel, but strikes with an iron hand, ’ is a maxim pregnant with obvious meaning. In this instance it doffed the ‘leaden heel,’ yet struck with the iron hand. It is not unlikely that the previous attempt at lynching, and apprehension felt by the officers of the law of a second attempt being made in case of delay in bringing the accused to trial, may have influenced the situation to his detriment and caused the undue haste complained of. But this cannot be accorded the weight of justifying departure from the rule of calm deliberation. The right ‘to have the assistance of counsel’ is one conferred by the Constitution itself. Reasonable time to prepare for his defense should have been allowed the counsel, who had, by direction of the court, undertaken its responsibility. Only in this way could their ‘assistance’ be made effective.”

¥e have examined all the cases accessible bearing upon this question, and the rule appears to be well settled that, under the constitutional guaranty that the acdused shall have the right to the assistance of’ counsel, counsel appointed to defend the accused in a capital case must be given a reasonable time to prepare for trial, to investigate the facts, and examine the law applicable to the ease, and this, without being forced to a showing as to witnesses, and’ what is expected to be proven by them. It may be stated here and in this connection that the failure of counsel appointed to defend to take 24 hours to plead, and to specifically demand that the defendant be accorded these constitutional rights, is strong and convincing proof of the necessity of the rule.

• In eases of this kind, where the defendant is to be placed on trial for his life, he should have the advantage of every right which the law secures to him upon his trial. A fair and impartial administration of the laws is one of the most sacred rights of the citizen, and it is the duty of trial courts in the administration of the law to see that the accused, however guilty he may be, shall have a fair trial according to the due and orderly course of the law, and this duty is emphasized in a capital case.

Under the circumstances of this case, as shown by the record, counsel appointed to defend, was not allowed sufficient time to prepare for trial, and the refusal of the court to continue the ease, at least to another day in the term, was clearly an abuse' of judicial discretion. It follows that forcing the defendant into trial against his objections oh the same day that the information was filed and counsel appointed to defend was error prejudicial to the substantial rights of the defendant.

This is sufficient to dispose of the appeal; but, in view of the fact that the case will have to be retried, it is proper for us to notice other rulings' that were, some of them, at least, objected to by the défendant, and, if repeated, may bé urged as error upon another appeal.

Some objections were made and exceptions taken during the course of the trial to the rulings of the court in the admission of evidence. The testimony of the first witness for the state, who it seems had charge of the detention home in the city of Lawton, we are inclined to think could have no legitimate connection with any issue in the case, and was therefore incompetent.

The witness Monerief produced a letter, and stated that he found it in the bottom of a trunk containing clothes with the initials “ C. W. G. ” Thereupon the state offered the letter in evidence, and the defendant interposed proper objections, which were overruled, and the letter read to the jury. It appears that this letter was not dated, and was not addressed to this defendant, or any other person; it was not signed, except by the name of “Jack,” and is not a statement in writing made by this defendant or his codefendant, and it was not shown that the same was written before or after, the commission of the homicide. It follows that the defendant’s objections should have been sustained and the letter excluded.

No instructions were asked, and no objections made or exceptions taken to tbe instructions 'given by the court,, which fairly covered the law of the case.

Under the assignment that "the verdict is contrary to law and the evidence,” it is urged that there was no proof of venue. The only direct testimony offered by the state tu prove venue was that of the witness Walters, who testified that the house occupied by the defendants belonged to his mother ; that it was 11 miles east and a quarter north of Lawton, and that he had been told that the house was in Comanche county.

It is true that the courts of this state take judicial notice of the boundaries of the state and of the counties in the state, and also of the geographical location of cities and towns within the state; however, in view of the fact that the case must be retried we deem it only necessary to call attention to the question of venue, so that on another trial the proof of venue may unquestionably be sufficient.

Of course, nothing said in this opinion should be construed as in any way reflecting upon the defendant’s guilt or innocence. That is a question for the jury, and is one which we have not at all considered. Upon the record before us, and for the reasons hereinbefore stated, we are clearly of the opinion that the defendant did not have that fair and impartial trial to which he was entitled under the law.

The judgment of the trial court is therefore reversed, and the cause remanded for a new trial.

MATSON and BESSBY, JJ., concur.


text:
    CHARLES McSWAIN, JR., v. STATE.
    No. A-3805.
    Opinion Filed Dec. 5, 1921.
    (202 Pac. 1118.)
    Appeal from County Court, Johnston County; C. M. Crowell, Judge.

      Charles McSwain, Jr., was convicted of a violation of the prohibitory liquor law, and appeals.
    Affirmed.
    Cornelius Hardy, for plaintiff in error.
   PER CURIAM.

Plaintiff in error, Charles McSwain, Jr., was convicted on a charge that he did unlawfully sell to one Guy Woody one-half pint of alcohol for the price of $1.50, and in accordance with the verdict of the jury was sentenced to be confined for 30 days in the county jail and pay a fine of $50 and the costs. From the judgment an appeal was perfected by filing in this court on July 3, 1920, petition in error with ease-made. No brief has been filed, and plaintiff in error is not represented in this court by counsel. An examination of the record discloses that the evidence is sufficient to support the verdict and judgment of conviction and that no reversible error was committed' on the trial. The judgment of the lower court is therefore affirmed.


text:
    LEVI MOUNT COOKSON v. STATE.
    No. A-3656.
    Opinion Filed Dec. 5, 1921.
    (202 Pac. 1118.)
    Appeal from District Court, Sequoyah County; E. B. Arnold, Judge. -
    Levi Mount Cookson was convicted of conjoint robbery, and appeals.
    Affirmed.
    Frye & Frye, for plaintiff in error.
    S. P. Freeling, Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the district court in Sequoyah county, on the 16th day of May, 1919, of the crime of conjoint robbery, alleged to have been committed on or about the 10th day of September, 1918, by plaintiff in error and one John G. Smith, alias John R. Goodman, and one Charles McClain. Upon a separate trial, plaintiff in error’s punishment was fixed at five years’ imprisonment in the state penitentiary. This appeal has been pending in this court since November 15, 1919. No brief has been filed in behalf of plaintiff in error, nor was any appearance made to orally argue the cause at the time of its submission. Rule 9 of this court (12 Okla. Cr. viii,. 165 Pac. x) is as follows: “When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.” This being a' conviction for a felony, the court has taken occasion to make an examination of the evidence, in addition to the record proper. The information is sufficient to support the verdict and judgment. There is ample evidence to sustain the conviction. The instructions appear to be fair, and the proceedings regular. No reversible error having been urged, and none appearing to the court, the judgment is affirmed.


text:
    Ex parte J. F. MUSES.
    No. A-3475.
    Opinion Filed Dec. 6, 1921.
    (202 Pac. 1118.)
    Application by J. F. Muses for writ of habeas corpus to be admitted to bail.
    Cause dismissed on petitioner’s motion.
    Jarrett & Speakman, for plaintiff in error.
   PER CURIAM.

This was an application by J. P. Muses for writ of habeas corpus to be admitted to bail, averring that petitioner is held- by the sheriff of Lincoln county by virtue of a commitment issued pursuant to a preliminary examination upon a complaint charging petitioner with the crime of murder. Petitioner’s counsel of record have filed a' motion to dismiss the cause. Said motion is sustained, and the cause dismissed.