source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    Dr. B. F. HUGHES v. JAMES et al.
    No. A-10939.
    March 3, 1948.
    (190 P. 2d 824.)

      Sid White, of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Warren H. Edwards, Co. Atty., Okla. Co., of Oklahoma City, for respondents.
   JONES, J.

This is. an original action instituted in

this court by the petitioner, B. F. Hughes, against Otis James, justice of peace of Oklahoma, county, Warren H. Edwards, county attorney of Oklahoma county, and Dick Strain, sheriff of Oklahoma county, styled “Petition in the Nature of Habeas Corpas and for an Ancillary Order in Prohibition”, in which the petitioner seeks his release from custody in the common jail of Oklahoma county, where he is allegedly confined by the respondent sheriff, and prays this court to issue a writ of prohibition directed to the respondent justice of peace and county attorney, restraining and prohibiting them from trying the petitioner upon a criminal complaint allegedly charging the petitioner with committing the crime of obtaining property by means of a bogus check in Oklahoma county.

In the verified petition it is alleged that prior to March 14, 1943, the petitioner was arrested and held prisoner in Cincinnati, Ohio, by officers of the United States of America; that said officers were anxious to indict and prosecute the petitioner upon charges of transporting forged instruments and securities in interstate commerce, but were unable to do so for want of sufficient evidence; that the United States District Attorney at Cincinnati, Ohio, approached the petitioner and advised him that he was wanted in many jurisdictions for prosecution because of his activities in passing forged securities and other instruments; that the said United States District Attorney did advise and inform the petitioner that if he, petitioner, would furnish evidence to support an indictment and conviction in the Federal Court of that jurisdiction, that petitioner would receive as his sole and only punishment five years imprisonment and five years on probation; that under said circumstances and to avoid endless harrassment, petitioner did furnish said evidence, was so indicted and did on the 16th day of March, 1943, enter his plea of guilty to four charges of transporting forged securities in interstate commerce; that thereafter and in accordance with his said agreement, the United States District Attorney did cause the petitioner to be sentenced into the custody of the Attorney General of the United States for a term of five years and did cause the remainder of said sentences to run concurrently, and your petitioner to be placed on probation with reference thereto. In support of this allegation, the petitioner attached to his petition a letter of the Assistant United States District Attorney which, verified the foregoing allegations of fact.

The petition further alleged that the petitioner has served the required portion of said five year sentence and was released on parole for good behavior; that said United States District Attorney undertook to use his good office to save petitioner from further prosecution in any other jurisdiction, and was successful in preventing prosecution of petitioner everywhere except in the State of Oklahoma; that after the release of petitioner on parole from his federal sentence and at the instance of Seminole county in the State of Oklahoma, the petitioner was extradited from the State of Georgia to Seminole county to answer a charge of forgery there pending.

That upon his return to Seminole county, law enforcement officers gathered from all places in the State of Oklahoma where the petitioner was wanted in connection with his activities as a forger, including representatives of Oklahoma county, and one Mr. H. J. Hooper, at whose instance and complaint the warrant had been issued in Oklahoma county for petitioner’s arrest.

That it was then and there agreed by and between and among all of said officers that petitioner should plead guilty in the district court of Seminole county to said charge pending, and receive a sentence of two years in the State Penitentiary at McAlester therefor, and that all other pending charges in the State of Oklahoma would be dismissed against the petitioner; that the respondent Warren H. Edwards, county attorney of Oklahoma county, was not present at the conference, .but was contacted and advised thereof by the said H. J. Hooper, and acquiesced in the agreement, and agreed to comply by dismissing the prosecution in Oklahoma county.

That thereafter, on December 27, 1946, motivated solely by said agreement as communicated to him, the petitioner did enter his plea of guilty under said charge so pending in said county of Seminole, and did receive a sentence of two years therefor, and did enter the penitentiary at McAlester and commenced the serving of said sentence on December 31, 1946.

That the respondent county attorney of Oklahoma county has caused your petitioner to be transported from the State Penitentiary to the county jail of Oklahoma county, and is holding him in violation of said agreement upon a charge filed by the said Hooper, with said Otis James as committing magistrate.

At the hearing held before this court, proof was offered on behalf of petitioner substantially sustaining the allegations of his petition.

H. J. Hooper, special agent for the retail merchants of Oklahoma City, and Jake Sims, former chief of police of the city of Seminole and now the head of the Bureau of Investigation of the State of Oklahoma, corroborated the evidence of the petitioner pertaining to the meeting at Seminole, and the agreement that if Hughes would plead guilty to the charge pending in Seminole county, that all other charges pending against him in Oklahoma would be dropped and the evidence further showed that all of the charges in Oklahoma were dismissed except the charge in Oklahoma county. The county attorney of Oklahoma county testified that he was not present at the meeting at Seminole referred to by the officers and that he had no recollection of a telephone conversation with Mr. Hooper pertaining to the dismissal of the Hughes case; that when Mr. Hooper talked to him about, the. matter recently, he stated that he was agreeable to dismissing tbe prosecution if permission could be obtained from the merchant who had suffered the loss by reason of the forgery committed by the petitioner; that thereupon the merchant was contacted and he refused to assent to a dismissal of the prosecution against the petitioner, and accordingly the county attorney not having any independent recollection of any agreement made with petitioner, refused to recommend its dismissal to the committing magistrate.

Under the above facts, this court is confronted with the question as to whether the writ of prohibition should issue to prevent further proceedings in the prosecution of petitioner on the charge pending against him before the respondent Otis James. Although the question presented is one of utmost importance in the State of Oklahoma, counsel for the petitioner filed only a one page brief Avhich did not give any material aid to the court in determining the question and the State of Oklahoma did not file any brief at all. Despite this lack of briefs on the question presented, our investigation has shown no lack of authorities pertaining to this question.

It is settled law that the writ of prohibition may not issue to prevent an inferior court from erroneously exercising jurisdiction, but only to prohibit proceedings as to which inferior tribunal is wholly without jurisdiction, or threatens to act in excess of jurisdiction, and the prerogative writ of prohibition should be issued with caution, and only in cases of necessity, and not in a doubtful case. State ex rel. Wester v. Caldwell, 84 Okla. Cr. 334, 181 P. 2d 843.

In 14 Am. Jur. p. 965, it is stated:

“The usual method of dismissing an indictment or stopping a criminal prosecution at common law is by the entry of a nolle prosequi. Tbe practice originated in the criminal procedure of England. Under that jurisdiction the power of entering a nolle prosequi was lodged exclusively in the attorney general. His power in this regard was entirely untrammeled. In the gradual development of criminal procedure in the United States, this particular right has remained, but not without limitations. Statutory enactments and limitations by the courts in some jurisdictions have stripped him of most of his absolute power in this regard. The consent of the court is now required in many cases before a nolle prosequi can be entered.”

In Oklahoma it is provided by statute:

“The court may either of its own motion or upon the application of the county attorney, and the furtherance of justice, order an action or indictment to be dismissed; but in that case the reasons of the dismissal must be set forth in the order, which must be entered upon the minutes.” 22 O. S. 1941 § 815.
“The entry of a nolle prosequi is abolished, and the county attorney cannot discontinue or abandon a prosecution for a public offense, except as provided in the last section.” 22 O. S. 1941 § 816.

In discussing these statutes this court in the recent case of Perry v. State, 84 Okla. Cr. 211, 181 P. 2d 280, 286, stated:

“A criminal action may not be dismissed except on order of the court, the county attorney not being vested with such authority. 22 O. S. 1941 § 815. However, under the provision of this statute the County Attorney may move that the action be dismissed and since he is the legal representative of the state charged with the responsibility of investigating and prosecuting all public offenses, the trial judge will ordinarily accept his recommendation and dismiss the action.
“In Adams v. State, 21 Okla. Cr. 448, 209 P. 189, 191, it is held: “The court may, either of its own motion or upon the application of the county attorney, and the furtherance of justice, order an action or indictment to be dismissed; but in that ease the reasons of the dismissal must be set forth in the order, which must be entered upon the minutes.” Rev. Laws 1910, § 6099 [22 O. S. 1941 § 815]. This is a judicial function, made so by statute, that cannot be delegated to the county attorney.'
“In Kerker v. Superior Court, 38 Okla. Cr. 111, 259 P. 146, this court held that a dismissal cannot be made by the County Attorney, but must be made by order of the court.”

In the case of Scribner v. State, 9 Okla. Cr. 465, 132 P. 933, 945, Ann. Cas. 1915B, 381, it is stated:

“In states in which a county attorney may enter a nolle prosequi without the consent of the court he may grant immunity by contract without the approval of the court, but he cannot do so in this state. Under our system immunity is a judicial question which must be passed upon and decided alone by the court having jurisdiction to finally try the matters involved in the immunity claimed.”

In the case of State v. McDonald, 10 Okla. Cr. 413, 137 P. 362, 363, it is stated:

“Section 6099 of the Revised Statutes is as follows:
“ ‘The court may either of its own motion or upon the application of the county attorney, and the furtherance of justice, order an action or indictment to be dismissed ; but in that case the reasons of the dismissal must be set forth in the order, which must be entered upon the minutes.’
“The effect of this statute is to abolish the common-law right of the prosecuting attorney to nolle prosequi an indictment or information, except with the consent of the court. It goes further, and, under certain conditions, vests the trial judge with the power, whenever in his judgment the interest of justice may require it, to order the dismissal of ah indictment or information, with or without the consent of the county attorney. This is the law of Oklahoma, and by it we are bound.”

In the case of Faucett v. State, 10 Okla. Cr. 111, 134 P. 839, 841, L. E. A. 1918A, 372, this court stated:

“It is expressly provided by our statute that the court, either upon its own motion or upon the application of the county attorney, and in furtherance of justice, may order the dismissal of any indictment or information against a defendant, and that in such cases the reasons of the dismissal must be set forth in the order, and must be entered upon the minutes. See section 6099, Rev. Laws 1910. Section 6100 [22 O. S. 1941 § 816] takes from the county attorney the common-law right of entering a nolle prosequi in any case, without the consent of the court. Section 6101 provides that although the judge may order a case to be dismissed, that such dismissal is not a bar to any other prosecution for the same offense.”

To the same effect see Jones v. Busby, District Judge, 37 Okla. Cr. 68, 256 P. 758; Smallwood v. State, 14 Okla. Cr. 125, 167 P. 1154.

To sustain the contention presented on behalf of defendant would be to nullify the statutes hereinabove .quoted and would in effect permit a county attorney to do indirectly that which he is prohibited from doing direetly. If the county attorney seeks to make an agreement with the defendant to dismiss a prosecution under the statute, the agreement should be submitted to the court for his approval.

Officers who were present when the conversation was had with the petitioner in Seminole county testified before us and were very insistent that this court enforce the agreement allegedly made with the petitioner. We quite frankly state that the views which they and counsel for petitioner have expressed have impressed us that justice and fairness to the accused would warrant this court in enforcing this alleged agreement. We do not feel, however, that under the law this court would be justified in issuing the writ of prohibition, which may only be legally issued where there is an absolute lack of jurisdiction in the inferior court. The inferior court has jurisdiction of the subject matter and the question here presented is properly one to be submitted to it for its determination.

If the county attorney is insistent upon proceeding with the prosecution, the accused may present to the magistrate or the district court the question as to whether the agreement with the county attorney was made and seek an order for dismissal of the action. We certainly do not think it fair to one accused of crime for prosecuting officials to secure an unfair advantage by making a purported agreement with them which they are either unable to legally fulfill or which they elect to not fulfill. If an unfair advantage is taken of an accused, then a conviction obtained under such circumstances would not be sustained on appeal.

By reason of the foregoing it is evident that the petitioner has not sustained the burden of showing that he is clearly entitled to the writ of prohibition and his petition is therefore denied.

BAREFOOT, P. J., and BRETT, J., concur.


author: BAREFOOT, P. J.

text:
    TILSON O’DANE RUSHING v. STATE.
    No. A-10787.
    March 3, 1948.
    (190 P. 2d 828.)

      George Miskovsky and Rutherford IT. Brett, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., and Warren H. Edwards, Co. Atty., of Oklahoma City, for defendant in error.
   BAREFOOT, P. J.

Defendant, Tilson O’Dane Rushing, was charged with Herbert Brannon Martin, in the district court of Oklahoma county, with the crime of burglary in the second degree after former conviction of a felony; was tried, convicted and sentenced to serve a term of ten years in the State Penitentiary at McAlester, and has appealed.

For proper consideration of the questions presented in this appeal, it becomes necessary to give a short statement of the facts, as revealed by the record.

The defendant and Herbert Brannon Martin were charged with burglarizing the Viking Freight Company in Oklahoma City on September 18, 1945, and stealing therefrom $90 in money, a suit of clothes, a belt, and a Lions Club pin. Defendant was tried separately, and the jury on March 11, 1946, returned a verdict of guilty, assessing his punishment at ten years in the State Penitentiary. The first trial of defendant resulted in a hung jury, and this was the second trial.

The prior' convictions in felony cases, alleged in. the information, were in case No. 16,297, in the district court of Oklahoma county, in which the defendant was convicted of the crime of burglary in the second degree on February 18, 1944, and sentenced to the State Reformatory at Granite for a period of two years; and in case No. 16,-570, in the district court of Oklahoma county, in which he was convicted of the same crime, on February 15, 1944, and again sentenced to serve a term of two years in the State Reformatory at Granite.

The petition in error with case-made attached was filed in this court on September 19, 1946, and on September 26, 1946, counsel for defendant filed in this court an application for an order directing the district court of Oklahoma county to hear and determine a motion for new trial filed in that court, on the grounds of newly discovered evidence; and this court, on September 26, 1946, entered an order authorizing the district court of Oklahoma county to permit the filing of the motion for new trial, and to hear and determine the matters set forth in said motion, and, “that a proper record of the proceedings had upon said bearing be prepared so that the same may be attached to the case-made now filed in connection with the appeal in the above-entitled and numbered cause.”

This order was complied with, and a full and complete transcript of the proceedings in which the motion for a new trial was overruled by the trial court has been filed and both the original case-made and the transcript have been considered on this appeal.

The Attorney General filed a motion to dismiss the appeal in this case, for the reason that the defendant had left the state pending his appeal, without obtaining the consent of the court. This motion was presented at the time the case was orally argued, and the case was submitted on the motion to dismiss and on the merits.

After careful consideration of the facts and circumstances, we have decided that the motion to dismiss should be overruled, and the case decided on its merits.

The first proposition submitted for a reversal of this case is:

“A conviction upon the testimony of an alleged accomplice, uncorroborated by other independent evidence tending to connect the defendant with the commission of the offense, and which merely shows the commission of the crime charged and circumstances thereof, and merely tending to raise a suspicion of guilt, is insufficient.”

This is not a new question in this court. We have had many cases in which this question was raised and we do not deem it necessary to enter into a detailed discussion of the cases and the law with reference thereto. Excerpts may be taken from the many cases which, if construed alone, would seem to sustain the position of the state or the defendant. It is only by an examination of the particular facts in each case and the application of the law to those facts, that it may be correctly determined whether the accomplice has been properly corroborated. The statute with reference to the corroboration of an accomplice is Tit. 22 O. S. 1941 § 742, and is as follows:

“A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

It is an admitted fact that the witness Herbert Bran-non Martin, who testified for the state in this case, was an accomplice. His testimony at the trial of defendant was that on the night of September 18, 1945, he and defendant entered and burglarized the Viking Freight Company, as alleged in the information. He testified as follows :

“Q. How old are you? A. Twenty-one. Q. When was your birthday? A. The 3rd of this month. Q. Do you know Tilson O’Dane Rushing? A. I do. Q. How long have you known him? A. About 11 or 12 years. Q. Where do you live? A. 1529 South Blackwelder. Q. And where are you now? A. I am upstairs in the county jail. Q. And how long have you been up there? A. Ever since the 1st of December, about seventy days, I guess. * * * Q. Previous to that, where had you been? A. California. Q. Do you recall September the 18th of 1945? A. Yes, I do. Q. Did you see Tilson O’Dane Rushing-on that day? A. I did. Q. Where did you see him? A. I was coming uptown that day and I saw him uptown on that night. Q. Now, where did you see him uptown that day, if you know? A. Well, it was somewhere on Main street, we just met, I think. * * * Q. Now, where did you next see him that day, if you know? A. I saw him that night at the Treanon Ballroom. Q. About what time did you see him up there? A. About 10:30, something like that. Q. Did you talk with him? A. Yes, I did. Q. All right; What was said between you and he at that time, if anything? A. Well, that day, we had talked about making some money, and so, we looked at a place uptown and decided— * * * And we looked at this place over at the finance office; we talked a little, it was next to the building, and we looked at this finance office there and we didn’t want to do anything about it, so that night, I saw him up to the Treanon and he asked me if I wanted to go some place else and make some money; I told him, well, I didn’t know. I told him to ask the girl that I was with, so he talked to her about the deal and after he did, she said, ‘No,’ and so I told him, I would meet him later on, to keep her from knowing it, and I would go with him, and he said ‘All right.’ So I told him I would meet him about — after the Treanon closed and after I took my girl home, at the Public Market, and he said ‘OK,’ and I taken her home and then left her house and left with some friends of my wife’s and went down to 15th and Agnew and walked on down to the market and he was waiting there and he was standing by the side of my present car, and jumped out from behind it and stopped and he was trying to scare me and we laughed about it, and so, he told me, he decided not to wait for me at the public market, but he would come on down to the house; so I told him ‘OK,’ we would go on over there, and we left my house and started over to the Liebman Ice Plant and were going to begin there and when we were going across the viaduct, he had the little pistol with him, and we got to talking about it and he shot at some lights with it and we went then over the viaduct and we got over the viaduct, we needed a hammer to get into the premises with it and there was a filling station there at the northwest side of it and we got a hammer out of that and went on over to Liebman’s and we looked for the engineer and couldn’t see him, so I said, ‘OK, we will go on up now,’ and we started up the ladder and as I started up, the engineer came out and asked us what we thought we was doing on that ladder, and so, I told him we was going up to take a bath or a shower and asked Mm if it would be all right, and he -said ‘Yes,’ and we got on top of the building and we told him it was too cold to take .a shower, we wasn’t going to take one; and he said ‘OK, come on down,’ and we left and got back down the ladder and had a few words with him; I forget what was said, and we left there and went back over the viaduct and we didn’t know what we was going to do, so then, we decided we would burglarize the Viking Motor Line over there, so, we went around on the side of the building and looked it all over and there was a dock there and I remembered, I got up on the dock and I sat down by that window and I told him there was a catch on the window there that he could break the window and he could reach in and open the window and we could both go in that way, so I told him I would get him something to break the window with and he said, ‘No, I will break it with this gun;’ we got down and he dug a hole in the window and tilted the latch and opened the window and he went in, and then, I walked in; we walked around through the room where we went in at, and around through the dock, through a door and a lock on the inside and the safe, we walked over to the safe and got two boxes out of it and it had a bunch of envelopes and stuff in it, and we opened up the envelopes and finally, we got the money out of the envelopes and put it in our pockets, and when we started away or to leave, I had several pieces in there and he had a suit and we started and went back out the same way we had come in and started walking across the field there and got on up to the street, why, he told me he didn’t want the suit, so, I told him I would take it home with me, and so, we went on down to the .Rotary park then, and they have a little amphitheater there and by aid of the lights there, we divided the money there and we split $76 and I got $38 of it and I gave him back $38, and he went home. Q. What time was that, your best judgment? A. Well, I think that was about 2:30 or something like that; maybe around 3, about that, along in there. Q. Now, where did you next see Rushing, if you know? * * * A. Well, I called him and he met me at 29th and Robinson. Q. What did you and he do then, if anything? A. We left 29th and Robinson, I told him that the law was looking for us, so we went on up on Broadway and paid down on a ticket to Los Angeles with a travel bureau. Q. Then, did anything else happen out there that day, did they or did they not? A. Well, we was sitting in the Oklahoma Tire & Supply Company and there was two officers came in and well, I guess they would arrest both of us, but O’Dane run. Mr. Miskovsky: Just a minute; that would be his conclusion here. The Court: Sustained. Q. Just tell what happened there, what you saw. A. Well, the officers came in the front door and O’Dane walked out alone and they started to run and I just walked off from the Oklahoma Tire & Supply. Q. And what did you do? A. I left and went to Pauls Valley and then out to Colorado. Q. From there, where did you go. A. I came back here and stayed overnight and then I went to Arizona. Q. Now, did you finally get married out there? A. Yes, sir, I did. Q. Then, where did you go from there? A. I went from Arizona to Los Angeles, California. Q. And when did you return to Oklahoma City, if you know? A. December the 30th. Q. And where did you go when you came to Oklahoma City? A. I went to my house and stayed there, it was about 11 o’clock I got in town and I stayed there until I was arrested there that night just about dark. Q. With whom do you live when you are here? A. My friend’s parents, Mr. and Mrs. Gooch. Q. Now, I will hand you what’s been marked State’s Exhibit 4, for identification, and asked you if you have ever seen that before. A. Yes, I think so; yes. Q. Is that what you are talking about with reference to the window down there, is it or is it not? A. Yes, that’s what he broke the window with. * * * Q. Did you ever own that gun, did you or did you not? A. No, I never. Q. Where is the first time you ever saw that gun, if you know? A. Well, I saw it when O’Dane Rushing had it on the 18th, that day uptown, and I saw him again with it that night at the Treanon, and he had it later on that night again. Q. You say you saw him with it at the Treanon? A. Yes, I did. Q. What was he doing with it at that time? If you know? A. Well, when he came up there, he had the gun in the brief case with him and he was showing it to some of the kids what was standing there. Q. Now, you have a suspended sentence, don’t you? A. Yes, I do. Q. And who is your attorney? A. Charlie Moss, Mr. Moss. Q. Have you or have you not been promised anything by any of the officers of Oklahoma county for your testimony here today? A. No. I haven’t. Q. Now the girl you later married, what is her name, what was her name before you married her? A. Eunice Moore. * * * Q. And where did you marry her? A. Phoenix, Arizona. Q. When? A. October the 26th, 1945. Q. And she is your wife now? A. She is.”

There was a long cross-examination of this witness, but no material facts were developed that were in conflict with the direct testimony hereinbefore set out.

It is contended by the state that the evidence of the witnesses Mrs. Wilma Jean Eales, Cecil Duncan and Herbert C. Judkins, a detective out of the city police department, was sufficient to corroborate that of the accomplice Martin. All three of these witnesses testified that they were present at a dance in the Treanon Ballroom on the night of September 18, 1945, the night the Viking Freight Company was burglarized; and that they saw the defendant Tilson O’Dane Rushing and the accomplice Herbert Martin at the dance hall between 10 and 10:30 that night.

The witness Mrs. Eales had known these parties for a number of years. She testified:

“Q. Did you or did you not hear any conversation between Tilson O’Dane Rushing and Herbert Martin upon that occasion, and just tell all, from the time, what you heard and so on, if anything. A. Well, O’Dane come in between 10 and 10:30, he walked up to Herbert and I was sitting-at the table and I saw quite a few kids going around them, so I walked over to see what was going on; O’Dane had a brief case and he had quite a few things in it, and he told Herbert he knew how to get some easy money, and Herbert said he would go with him, if it was all right with Eunice, and it was rather vague and that’s about all I know.”

“Eunice” was the girl Martin had accompanied to the dance hall, and whom he later married in Phoenix, Arizona.

The witness Cecil Duncan positively identified both the defendant and the witness Martin as being at the dance at the time indicated, and which was only a few hours before the robbery of the Viking Freight Company. He testified:

“Q. Tell the court and jury what you saw there, if anything, and what you heard. A. Well, I just saw O’Dane come up there and he had a brief case and a gun and I didn’t hear them say anything.”

The witness Herbert C. Judkins testified that it was a part of his duty to police the Treanon Ballroom, and that he was there on the night of September 18, 1945. That he saw the defendant Tilson O’Dane Bushing there on several different occasions that night, and at about the time above indicated.

Bob Ewing testified that he had been on the police detective force for more than nine years. That he was acquainted with both the defendant and Martin. That on September 19, 1945, the day following the burglary of the Viking Freight Company, he and Walter Acord, a fellow-officer, after investigation, were looking for the defendant and Herbert Martin. About 1:30 or 2 o’clock in the afternoon they were passing the Oklahoma Tire & Supply Company store on North Broadway. They saw the defendant and Martin in the store. They started toward them and defendant went out the back door, and Martin out at a side door. The witness followed the defendant out the hack door and caught him about 60 or 70 feet from the door. Defendant had his right hand in his pocket, and witness pulled his gun and told defendant to get his hands out of his pocket and put them up. Defendant complied, and witness searched him, and found on him a pistol, money, pocketbook, and a box of 22 shells. The pistol was introduced in evidence, and was such as that described by the witness Martin in his testimony heretofore given. The witness placed defendant in jail and the co-defendant Martin escaped, going to Arizona, Colorado and California, as testified to by him, before returning to Oklahoma City.

Guy Bauguess testified that he was a jailor in Oklahoma county and had been for three years. That the defendant was in the Oklahoma county jail and had been for some time when Herbert Martin was placed in jail. They were in separate compartments. On the day Herbert Martin was placed in jail the defendant handed the witness a note with the request that he deliver it to Herbert Martin. This note was introduced in evidence1, and Avas as follows:

“Herbert, what did you tell the detectives about me? O’Dane.”

Fred Phillips also testified that he was a jailor in Oklahoma county, and had been for a period of three years. He testified that on the day Herbert Martin was placed in jail the defendant gave him a note and requested that he deliver it to Herbert. This note was also introduced in evidence, and was as follows:

“Herbert are you pleading guilty? Tell me everything so I’ll know what to do. I havent admitted being alive. Dont sign anything if you haven’t already. Send answer by jailer. O’Dane Rushing.”

The defendant did not offer any witnesses in his behalf, and did not take the stand, which was his right, but he elected to stand on the evidence offered by the state.

As above stated, the question of the evidence being-sufficient to corroborate the testimony of the accomplices is dependent upon that of each particular case, under the rules of law announced by this court in many cases contruing the statute above quoted.

It has been stated in many of the cases that the corroborating evidence does not have to constitute a separate and complete proof of the crime, but only that there should be some evidence of material facts in addition to the testimony of the accomplice tending to connect the defendant with the commission of the crime. The weight of the evidence is a question of fact for the determination of the jury. Defendant in his brief stresses the cases from this court which hold that it is not sufficient for this purpose merely to connect the defendant with the accomplice, or other person participating in the crime, but evidence independent of the testimony of the accomplice must tend to connect him with the crime itself, and not simply with its perpetrators. This statement is followed by the quotation:

“The corroborating evidence may be sufficient although by itself slight, but it is not sufficient if it merely tends to raise a suspicion of guilt.”

While the words “not sufficient” are used, it does not state that evidence of the fact that defendant and the accomplice were together and in close proximity to the scene of the crime when it was committed, is not a circumstance for the consideration of the jury. And while this fact alone might not constitute sufficient corroboration, yet when considered by the jury or court in connection with, all the other facts and circumstances, it is sufficient to constitute that degree of corroboration required by the statute. Rogers v. State, 57 Okla. Cr. 294, 48 P. 2d 344; Kennedy v. State, 65 Okla. Cr. 77, 83 P. 2d 198; Cornett v. State, 42 Okla. Cr. 93, 274 P. 676; Wever v. State, 22 Okla. Cr. 414, 211 P. 1062; Holmes v. State, 52 Okla. Cr. 406, 5 P. 2d 770; Mitchell v. State, 59 Okla. Cr. 393, 60 P. 2d 627; Hinkle v.. State, 55 Okla. Cr. 402, 32 P. 2d 96; Behne v. State, 55 Okla. Cr. 392, 31 P. 2d 621; Blumhoff v. State, 72 Okla. Cr. 339, 116 P. 2d 212; Scott v. State, 72 Okla. Cr. 305, 115 P. 2d 763; Hathcoat v. State, 71 Okla. Cr. 5, 107 P. 2d 825; Howard v. State, 70 Okla. Cr. 165, 105 P. 2d 440; Anderson v. State, 79 Okla. Cr. 194, 153 P. 2d 245. See, also, Cole v. State, 83 Okla. Cr. 254, 175 P. 2d 376; Tillman v. State, 82 Okla. Cr. 276, 169 P. 2d 223; Plaxico v. State, 78 Okla. Cr. 353, 148 P. 2d 201; Edson v. State, 77 Okla. Cr. 100, 139 P. 2d 198; Perry v. State, 74 Okla. Cr. 234, 125 P. 2d 219; Lucas v. State, 68 Okla. Cr. 359, 98 P. 2d 933.

In the Perry case, supra, it is said:

“A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
“This does not mean a separate and complete proof of a crime, but only that there should be some evidence of material facts in addition to the testimony of the accomplice tending to connect the defendant with the commission of the crime charged.
“Held, that the evidence is sufficient to corroborate the testimony of the accomplice. Spivey v. State, 69 Okla. Cr. 397, 104 P. 2d 263; Wilkins v. State, 70 Okla. Cr. 1, 104 P. 2d 289; Hathcoat v. State, 71 Okla. Cr. 5, 107 P. 2d 825.”

It has often been held by this court that evidence to corroborate an accomplice may be by circumstantial evidence, as well as by direct testimony. Hamilton v. State, 79 Okla. Cr. 108, 152 P. 2d 119, and cases cited therein.

In the case at bar the evidence reveals several outstanding facts which tend to corroborate the evidence of the witness Martin. The defendant was seen at the Treanon Ballroom in company with the witness Martin a short time before the burglary was committed, by three disinterested witnesses. The defendant had in his possession a gun which the evidence revealed was used in the burglary, and which was found by the officers on the person of the defendant at the time of his arrest, the following day. Statements were made by the defendant to Martin at the dance hall that he “knew how to get some easy money” and that Martin told him that he “would go with him if it was all right with Eunice.”

The evidence further reveals that defendant and Martin were together on the following day, and at that time, upon seeing the officers, whom they knew, approaching them, there was an attempted flight by the defendant. Proof of flight is permitted to be shown as circumstance of one’s guilt, and this has been held to be a circumstance for the consideration of the jury or court, as to corroboration of an accomplice. Graham v. State, 80 Okla. Cr. 159, 157 P. 2d 758; Broyles v. State, 83 Okla. Cr. 83, 173 P. 2d 235.

In addition to the evidence above referred to, the two notes which were written by the defendant to the witness Martin on the day he was placed in jail- and which have been quoted, were circumstances to be considered by the court and jury as to the guilt of the defendant, and as corroborating testimony. These notes were signed by defendant, and he in no way denied that he wrote them. They could have been, and probably were, given great weight by the jury in determining the guilt of the defendant and his presence with the accomplice Martin at the time of the burglary, as alleged.

From the above statement we are of the opinion that the evidence in the instant case was sufficient to comply with the statute in the corroboration of the accomplice, Herbert Martin. The record does not reveal the reason Bill Sayers, the engineer at the Liebman Ice Plant, who saw both the defendant and Herbert Martin just before the burglary occurred, was not used as a witness by the state or the defendant. We, of course, cannot surmise what his testimony would have been, and in the absence of such testimony, we express no opinion on the matter. It would have been better if the jury had been permitted to hear his testimony.

The second proposition presented by defendant is that the court erred in refusing to grant a new trial on the grounds of newly discovered evidence.

Reference has heretofore been made to the procedure followed in presenting this motion for new trial. The principal evidence relied upon was that Herbert Martin, the accomplice and codefendant who had been released from jail on his own bond after the trial of defendant, went to the office of defendant’s attorney on September 16, 1946, three days before the petition in error and case-made were filed for appeal in this court, and, as stated in the motion, “made a voluntary, verified statement,” in which he exonerated the defendant of any participation in the crime of burglarizing the Viking Freight Company on the night of September 18, 1945. He further stated that the window which was broken at the time of the burglary was not broken by defendant with a gun, as testified by him, but that he broke the window with a screw driver which he left at the Viking Freight Company office on the night of the burglary.

At the hearing of the motion for new trial by the trial court, upon order of this court evidence was taken which has been transcribed and is now before us for consideration together with the original case-made. The evidence chiefly concerned the finding of a screw driver by Mr. E. W. Williams, the manager of the Viking Freight Company at his office on the morning following the burglary. Mr. Williams had not delivered this screw driver or called it to the attention of the officers until in February, 1946, just prior to the trial of the defendant the second time, when the assistant county attorney with other officers and the witness Herbert Martin went to the office of the Viking Freight Company for the purpose of re-enacting the scene of the crime. There is very little, if any, conflict in the testimony with reference to this matter, and as we view the case, it is of very little importance. Mr. Williams, the officers present, and the assistant county attorney all testified that Mr. Williams produced the screw driver and told of finding it in his office the morning after the burglary, and offered it to the assistant county attorney “if it means anything to you”; and that the assistant county attorney, after a conference with the witness Martin, said, “Mr. Williams, you can just keep the screw driver as far as I am concerned, it has no place in this lawsuit.” Mr. Williams, the officers and other witnesses who heard this conversation, all testified in effect to the words used in the conversation. We do not consider this conversation of any material value. The assistant county attorney showed no disposition on his part to suppress the introduction of any evidence in the trial of the case. He was only relying on the evidence given him by the witness Martin and as he testified to at the trial of the case.

As to the repudiation by the witness Herbert Martin of the testimony given by him at the trial of this case long after he had testified and had been released on his own recognizance, it may be stated that the county attorney had no opportunity to cross-examine him as to this statement. The statement is in form of interrogatories, taken in the office of the attorney for defendant and sworn to by the witness Martin. There was no opportunity for cross-examination. Soon after the statement was made, Martin fled and so far as the record is concerned, has never been apprehended. On the sworn statement he was asked: “Q. Was anyone else with you when you burglarized the Viking Truck Lines?” And his answer was: “I don’t want to implicate anyone else.”

It was not insisted that he answer this question. If he had been under proper cross-examination he could have been forced to answer. He had stated that he wanted to right a wrong he had done the defendant, yet he was not willing to tell the whole truth. The trial court had a right to consider all of these facts in passing upon the motion for new trial.

The general rule is that in passing upon a motion for new trial on the grounds of newly discovered evidence, the question is addressed to the sound discretion of the trial court, and ordinarily the ruling of the trial court will not be disturbed on appeal, unless there is a clear, definite and positive abuse of discretion, and it is generally presumed that the trial court exercised proper judgment and discretion.

This rule has special reference to cases like this, where one has made a statement or affidavit that the testimony given by him at a former trial was not true and that he committed perjury at the time he so testified. A strong reason for the above rule is set forth in the case of Ryal v. State, 16 Okla. Cr. 266, 182 P. 253, 259, quoting from the case of People v. Tallmadge, 114 Cal. 427, 46 P. 282:

“Applications on the ground of newly discovered evidence are addressed to the discretion of the trial court, and its action will not be set aside except for an abuse of such discretion, and the presumption is that the discretion was properly exercised; and it has been repeatedly held by this court that such applications are to be regarded with disfavor. Hayne on New Trial and Appeal, par. 87, and cases there cited, People v. Sutton, 73 Cal. 243, 15 P. 86; People v. Freemen, 92 Cal. 359, 28 P. 261. It cannot be said that, as a matter of law, a new trial should be granted whenever an important witness against the defendant shall make an affidavit that he committed perjury in his testimony; if that were so, justice would be defeated in many grave cases. Notwithstanding such an affidavit, the appellate court will rest largely upon the discretion of the judge who heard the trial, and will not disturb his ruling except in clear cases of abuse of discretion.”

See, also, Wells v. State, 16 Okla. Cr. 461, 184 P. 465; Whitworth v. State, 80 Okla. Cr. 239, 158 P. 2d 364, 159 P. 2d 277; Armstrong v. State, 61 Okla. Cr. 352, 68 P. 2d 114; Finklestein v. State, 68 Okla. Cr. 341, 99 P. 2d 167.

In the Whitworth case, supra, it is said:

“A motion for new trial was made upon grounds of newly discovered evidence, and supported by affidavit of defendant’s brother (who was a codefendant and had been convicted and was serving a sentence in the State Penitentiary), that affiant and another committed the crime and that defendant was not present and had no knowledge thereof, affiant having previously testified at the trial of defendant that he had no part in the commission of the crime, Held: that such showing does not entitle the defendant to a new trial as a matter of right, but calls into exercise the sound discretion of the court, and such motion should be overruled unless the trial court believes that such recantation is probably true, and that another trial might result in the acquittal of the defendant.
“The practice of granting new trials upon affidavits of persons who have been convicted and then change their testimony, admitting that they had committed perjury, is not looked upon with favor by the courts.”

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

JONES, J., concurs. BBETT, J., not participating.


text:
    JAMES OSBORN v. STATE.
    No. A-10799.
    March 17, 1948.
    (194 P. 2d 176.)

      John L. Dunn and John L. Ward, Jr., both of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant was charged by information filed in the district court of Kay county on April 6, 1946, with the crime of murder allegedly committed on March 18, 1929; was tried, convicted of manslaughter in the first degree, and pursuant to the verdict of the jury was sentenced to serve 25 years in the State Penitentiary.

For a reversal of this case, it is first contended that the evidence is not sufficient to sustain the conviction. To properly discuss this question, a short statement of the evidence will be given.

The evidence of the state showed that one George Stanford was living on the outskirts of the city of New-kirk in Kay county, Okla., in the month of March, 1929. He was last seen alive by the members of his family about 6:0G p. m. on March 18, 1929. His general physical condition at that time was good. Early the next morning he was found lying in the yard of his residence on his face, with his hands .spread out with a 38 caliber Smith and Wesson pistol near his right hand. The gun was fully loaded. An examination showed that it had not been recently fired. There was a pool of blood under the body of the deceased. A further examination disclosed that a bullet from a 22 caliber gun had entered his body in the chest and had not quite penetrated the body to ivhere it was easily extracted. There were no other marks or scratches visible on the body of the deceased, but the evidence showed that the gunshot wound was. the cause of his death. On cross-examination of the officers by counsel for defendant, it was shown that the deceased was engaged in the illicit whisky traffic. Three empty 22 caliber shells were found in front of the house of the deceased within a radius of six feet of each other. A bullet fired from a 22 caliber gun had lodged in the door of the house of deceased and was imbedded about one-half inch..

The sheriff of Kay county testified that he was notified in the month of January, 1946, that the defendant' had been arrested in Phoenix, Ariz.,' and had given a statement to an agent of the Federal Bureau of Investigation in which he confessed to having killed the deceased Stanford in Newkirk in 1929. The sheriff, pursuant to the call from Phoenix, went to Phoenix, Ariz., and returned the defendant to Newkirk. At Phoenix, Ariz., the sheriff was given a long typewritten statement by the authorities there which was allegedly signed by the defendant, detailing the facts surrounding the death of the deceased. This statement was offered in evidence by the county attorney, but upon objection being interposed by counsel for defendant that it was hearsay, the objection was sustained. However, the sheriff testified that on the return trip to Newkirk, he discussed the alleged crime with the defendant in which the defendant said that he and Barney Buchanan were in Bell Plain, Kan., and decided to go to Wichita and get a couple of guns and highjack George Stanford who was a whisky dealer in Newkirk. That in accordance with their plans, they drove to Wichita, got two 22 caliber pistols, one an automatic and the other a single shot. That they then hitchhiked to Oxford, Kan., where they stole an automobile and drove it to Newkirk. The defendant Osborn and Buchanan each had a pistol when they went to Stanford’s house. A conversation occurred between Stanford and Buchanan, and the defendant heard a shot and saw Stanford walking-back toward his house. That Buchanan jumped into the automobile and they left Newkirk in a hurry. That they abandoned the car which they had stolen and. hid their pistols.

The county attorney also placed a witness on the stand who identified a written statement taken from the defendant in question and answer form which was subscribed and sworn to by the defendant before the deputy court clerk of Kay county. In this written statement, the defendant, among other things, swore that he was a brother-in-law' to Barney Buchanan. That in the early part of 1929, he and Buchanan were in Bell Plain, Kan.; that they were acquainted with a bootlegger living in Newkirk by the name of George Stanford. That they had bought liquor from him. That he and Buchanan had a conversation in which they decided on the morning of March 18, 1929, to go to Newkirk and highjack the deceased, Stanford. That they hitchhiked to Wichita, Kan., where Buchanan obtained two 22 caliber pistols. That they then caught a ride to Oxford, Kan., where Buchanan stole an automobile. That they drove the automobile to Newkirk to the house of deceased, which was out in the northeast part of town. That the house faced south. That, it was after dark when they arrived. That Buchanan hollered for Stanford and he came out. That Buchanan told him he wanted some whisky. That Stanford went in the house and then came out again. That while Stanford was in the house, Buchanan got over on the edge of the seat next to the house. That the door of the automobile was open. That a conversation occurred between Buchanan and deceased and a shot was fired by Buchanan. That they then drove away in a hurry and returned to Bell Plain, Kan., where they borrowed the car of defendant’s mother, took the stolen car back to Udall and abandoned it and returned to Bell Plain, Kan. That the guns were hidden in a hay stack. That later the guns were returned to the house of Buchanan’s brother in Wichita where he had borrowed them. That he first learned of the death of Stanford when he read it in the paper. That he mentioned it to Buchanan and Buchanan told him to shut up and not say anything about it. That shortly after that he left for California.

After the state had rested, the defendant interposed a demurrer to the evidence, which was overruled. The defendant then- rested without offering any evidence in his own behalf.

In Gorum v. State, 60 Okla. Cr. 248, 63 P. 2d 765, it is held:

“In every criminal prosecution it devolves upon the state to prove, first, the corpus delicti; second, that the crime charged was committed by the accused.
“The ‘corpus delicti’ means, when applied to any particular offense, the actual commission by some one of the particular offense charged.
“The corpus delicti may be established without showing that the offense charged was committed by the accused.
“An extrajudicial confession of the defendant is not sufficient to warrant his conviction without additional proof that the crime charged has been committed. There must be, in addition to the confession, proof of the corpus delicti, and, where the corpus delicti is established by independent evidence, á conviction based upon the defendant’s voluntary confession is warranted.”

In Edwards v. State, 46 Okla. Cr. 77, 288 P. 359, this court stated:

“Where a dead body is found with marks of violence upon it, or other circumstances that indicate that deceased came to his or her death by unnatural or violent means, proof of such fact, independent of defendant’s confession, establishes the corpus delicti in a murder case.
“The judgment in a murder case will not be reversed on appeal as not sustained by the evidence, unless there is no substantial evidence tending to show the guilt of the defendant, or unless it fails so far to support the verdict that the necessary inference is that the jury acted from partiality or prejudice, or was controlled by undue influence. * * *
“In a trial for murder, tbe question of whether the alleged confession of the defendant was voluntary was for the jury. Where the voluntary nature of the confession was submitted to the jury under proper instructions, a verdict against the defendant is conclusive on the issue.
“An extrajudicial confession of the defendant is not sufficient to warrant his conviction without additional proof that the crime charged has been committed. There must be, in addition to the confession, proof of the corpus delicti, and, where the corpus delicti is established by independent evidence, a conviction based upon the defendant’s voluntary confession is warranted.”

See, also, Brown v. State, 9 Okla. Cr. 382, 132 P. 359; Choate v. State, 12 Okla. Cr. 560, 160 P. 34, L. R. A. 1917A, 1287.

In Choate v. State, supra, this court- stated:

“A conviction cannot be had upon a defendant’s extrajudicial admissions alone, unless the state proves in some way the corpus delicti, independent of the defendant’s admission. Direct and positive proof is not essential to establish the corpus delicti, but it may be proved by circumstantial evidence. And when it is proved by circumstantial evidence, the question should be submitted to the jury along with the other questions of fact in the case, as to whether or not the state has established the corpus delicti beyond a reasonable doubt.
“ (a) The danger which this rule is supposed to guard against is greatly exaggerated in common thought. Yet there are rare instances of morbid minds that need to be protected by this rule against their own perversity and morbid imagination.
“(b) To prove the corpus delicti is a simple matter. If a dead body is found with marks of violence upon it, or other circumstances that indicate that deceased came to his or her death by unnatural or violent means, proof of such fact, independent of defendant’s confession, establishes the corpus delicti in a murder case. * * *”

In the instant case, the state established by evidence independent of confession of the defendant that the deceased came to his death by reason of a gunshot wound inflicted upon him by a 22 caliber bullet, the night of March 18, 1929. In accordance with the authorities above cited, where the corpus delicti has been established by independent evidence, then the confession of the defendant to having committed the crime is sufficient to sustain a judgment of conviction. Under the confession of the accused, he and Buchanan schemed together to commit the felony of robbery. During the robbery, the deceased was shot. The defendant, as well as Buchanan, is guilty of felonious homicide. McDonald v. State, 54 Okla. Cr. 161, 15 P. 2d 1092.

It is next contended that the court erred in admitting a certified copy of the death certificate in evidence over the objection of defendant that said certificate was hearsay evidence.

The proof of the state showed that the Doctor who made the death certificate was deceased. The certificate had been duly filed with the Bureau of Vital Statistics in Oklahoma City, and was a part of their records.

By statute, 63 O. S. 1941 § 581, it is provided that such a certified copy of the record of death registered under the provisions of the act “shall be prima, facie evidence in all courts and places of the facts therein stated.”

See, also, National Benevolent Society v. Russell, 173 Okla. 331, 48 P. 2d 1.047, wherein it is held:

“In action on life insurance certificate, copy of insured’s death record certified by State Registrar is competent prima facie evidence of what caused insured’s death (St. 1931, §§ 321, 4514, 4516 [12 O. S. 1941 § 486, 63 O. S. 1941 §§ 579, 580]).”

Counsel for the defendant next insist that the verdict finding defendant guilty of manslaughter in the first degree cannot be sustained for the reason that the statute of limitations had run against any crime except murder, three years having elapsed since the commission of the offense of manslaughter and there being no evidence on the part of the state that tolled the statute of limitations. 22 O. S. 1941 §§ 151, 152 and 153.

The general rule seems to be that where one is charged with an offense which is not barred by limitation, but is convicted of a lesser included offense which is so barred, that he is entitled to a discharge. 22 C. J. S., Criminal Law, § 225.

However, the authorities are not all in accord on this rule and this court has not yet had occasion to decide this point. In order to dispose of this contention of defendant, it is unnecessary to decide this question. That question will be decided when a record is before us which affirmatively shows that the included or lesser offense than the one charged is barred by the statute of limitations.

It is provided by statute:

“If when the offense is committed the defendant be out of the State, the prosecution may be commenced within the term herein limited after his coming within the state, and no time during which the defendant is not an inhabitant of or usually resident within the State, is part of the limitation. R. L. 1910, § 5626.” 22 O. S. 1941 § 153.

In construing and applying- this section of the statute, this court has consistently held that the burden is not upon the state to show by the evidence that the defendant was not an inhabitant or usually resident within the state for a period of time which would toll the statute of limitations. Coleman v. Territory, 5 Okla. 201, 47 P. 1079; Rea v. State, 3 Okla. Cr. 281, 105 P. 386, 106 P. 982; Davenport v. State, 20 Okla. Cr. 253, 202 P. 18; Crain v. State, 70 Okla. Cr. 45, 104 P. 2d 450.

In Coleman v. Territory, supra, Justice Tarsney of the Supreme Court of Oklahoma Territory cited and discussed all of the leading American cases and text books on this subject of limitation, and came to the conclusion as stated in his opinion [5 Okla. 201, 47 P. 1081] :

“In this case the question is clearly presented whether, when the prosecution has established the commission of the offense by the accused, it was also its duty to establish by evidence, beyond a reasonable doubt, its right to have the accused punished for such offense, by facts showing that he was not entitled to the benefits of the statute of limitation, or was it the duty of the defendant to establish by facts, to the satisfaction of the jury, his right to exemption from punishment by virtue of that statute? When the defense consists, not in confession and avoidance, but in the traverse of some essential fact relied on by the prosecution, and where such fact is an essential element of the offense, the burden of proof is unquestionably upon the prosecution, and it must establish such fact beyond a reasonable doubt. In determining upon which party lies the burden of proof and the degree of proof, we think a clear distinction may be drawn between cases where the defense traverses the material elements of the crime, and those which are exculpatory, or in the nature of confession and avoidance, and keeping clearly in mind this distinction will aid materially in construing apparently, conflicting authorities. * * * The defense of the statute of limitations traverses no element of the crime charged. It is essentially an extrinsic defense. It does not put in issue either the guilt of the defendant, or the existence of any of the essential elements constituting his guilt of the offense charged. He simply asserts that by virtue of an extrinsic condition, not relating to the commission of the offense, but recognizing its commission, namely, a statute of repose or limitation, he is not now subject to punishment for the crime which he admits having committed. We can see no reason why the rule relating to the defense of license, authorization by the state, autrefois acquit, autrefois convict, pardon, provocation, or compulsion should not be the rule as to this defense. In fact, we think the rule applies with more reason and justice to this defense than to the others. It is not inequitable, oppressive, or substantially, prejudicial to the safeguards which should surround the defense of one accused of crime, that if his defense does not deny the commission of the acts charged, or traverse any of the material elements of the offense, but is based upon facts wholly extrinsic, and peculiarly within his knowledge, and more readily susceptible to proof by him than by the prosecution* he should be held to establish such defense to the reasonable satisfaction of the jury. In the case at bar, as shown by this record, the prosecution, by the exercise of reasonable diligence, were not able to establish or prove that the defendant had a fixed, definite, habitation or residence within the territory. If such fact existed, — if the defendant did, in fact, during the disputed time, have a fixed, permanent residence within the territory, — that fact was peculiarly within his knowledge, and would be easily susceptible of proof by him; and we think it would be a sound rule only which would require him to make such proof.”

In Rea v. State, supra [3 Okla. Cr. 281, 105 P. 386], this court held:

“The statute of limitations does not negative a single element of the crime with which a defendant may be charged. It does not put in issue the guilt of the defendant. It therefore is not necessary for the prosecution to prove beyond a reasonable doubt .that the offense committed is not barred by the statute of limitations.”

In Davenport v. State, supra, this court stated ■ [20 Okla. Cr. 253, 202 P. 25] :

“It is Avell settled that, where the statute of limitations is relied upon fór a defense in a criminal action, the burden is upon the defendant to prove by a preponderance of the evidence any matter showing that the statute of limitations is not tolled.”

In Crain v. State, supra, [70 Okla. Cr. 45, 104 P. 2d 454], Judge Barefoot of this court, after reviewing the authorities, cited with approval the cases of Coleman v. Territory and Davenport v. State, supra, and stated:

“If the rule here contended for is sound, then an offender for any crime less than murder, if he can successfully conceal himself and avoid arrest for three years, is free from prosecution.”

In the instant case, the defendant offered no evidence but rests his proposition solely upon the ground that the state failed to prove that the prosecution, in so far as manslaughter was concerned, was not barred by limitations. We think the ruling of Judge Tarsney in disposing of a similar contention applies forcefully to the conclusion which we have reached in this case. If the defendant during the disputed time was an inhabitant or usually resident within the state, such fact was peculiarly within his knowledge and would be easily susceptible of proof by him, and we think it would be a sound rule which would require him to make such proof. It would present an almost insurmountable obstacle to the state to require that the state should show the whereabouts of the accused during all of the time from the date of the crime until his arrest. We do know from the evidence in the record that the defendant, at the time of the commission of the alleged crime, lived in Kansas. That after the crime was committed, be went to California, and at tbe time of Ms arrest lie was in Phoenix, Arizona. As to whether the defendant was outside of the state so as to toll the statute of limitations was not readily susceptible of proof by the state. Such fact was locked in the mind of the accused. He alone knew his whereabouts during the long period from the time of the homicide until his arrest.

By reason of the foregoing authorities, it is evident that the court did not err under the evidence before it in submitting the issue of manslaughter in the first degree to the jury in so far as the question of limitation is concerned.

The defendant next contends that the court erred in refusing to give defendant’s requested instruction No. 2, which was an instruction on circumstantial evidence. The instruction requested by the defendant was an accurate statement of the law on circumstantial evidence; but we find that the court, in instruction No. 19, gave an instruction on circumstantial evidence which, although not in the exact language of the requested instruction, was substantially the same and was a correct statement of the law.

The same may be said of defendant’s requested instruction No. 1. We think it contained a substantial statement of the law, but the record discloses that the trial court very carefully gave a complete and fair statement of the law applicable to the evidence in instructions 12, 18, 14, 15, 16 and 17.

There is no material error. The judgment and sentence of the district court of Kay county is accordingly affirmed.

BRETT, J., concurs. BAREFOOT, P. J., dissents.


text:
    MONT HULSEY v. STATE.
    No. A-10794.
    March 24, 1948.
    (192 P. 2d 301.)

      Sigler & Jackson and Champion, Champion & Wallace, all of Ardmore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Mont Hulsey, was charged by information filed in the county court of Carter county with the alleged crime of “Taking Indecent Liberties with the Person of a Child,” was tried, convicted, and sentenced to serve one year in tbe county jail, and has appealed.

The proof of the state showed that three workmen, while engaged in repairing a roof on a building on Main street in the city of Ardmore, saw the defendant sitting in the seat of an automobile parked on Main street with a small girl. The defendant had raised the girl’s dress and seemed to be playing with her privates. The men watched the occurrence for a few minutes and saw the the young girl leave and go into a department store. The men notified the chief of police who later arrested defendant.

Geneva Lynn Shankles testified that she was ten years of age on April 18, 1945, at the time of the alleged occurrence between her and defendant; that she had known the defendant about six years; that she saw him parked in front of the Squeeze Inn and he called her over to the car; that defendant opened the car door and she got in and sat down; that he pulled up her dress and commenced to play with her privates; that she sat there with him and let him play for fifteen minutes; that he then gave her fifteen cents and she left and went to Daube’s store. She further testified that he had played with her in that manner on other occasions but did not give any specific dates.

On behalf of the defendant a Doctor testified that the defendant was a veteran of World War I; that he had had a nervous breakdown and had been sent to the Veterans Hospital at Muskogee for treatment; that upon being released from the Veterans Hospital the Doctor had had him under observation and treatment for his nervous ailment. He testified on cross-examination that a large part of defendant’s trouble bad been aggravated by bis drinking.

Tbe defendant testified in bis own bebalf and said that be had known tbe little girl for about six years; that on tbe day previous to tbe occurrence he bad worked at the Jones Furniture Store and commenced to feel badly; that he commenced drinking and did not remember anything; that be was later arrested by tbe chief of police; that be bad two sons and a daughter and three grandchildren. On cross-examination be testified that be bad drunk about five bottles of beer and was parked in his automobile waiting for bis wife to get off from work. Defendant also introduced proof of bis good reputation in the community where be resided as being a peaceable, law-abiding citizen.

The first proposition presented on bebalf of defendant is that tbe evidence is insufficient to sustain a conviction under the general statute relied upon by tbe state which provides:

“Every person who wilfully and wrongfully commits any act which grossly injures tbe person or property of another, or which grossly disturbs the public peace or health, or which openly outrages public decency, and is injurious to public morals, although no punishment is expressly prescribed therefor by this Code, is guilty of a misdemeanor.” Tit. 21, § 22, O. S. 1941.

This statute has been construed by this court in a number of cases. In the early case of Steward et al. v. State, 4 Okla. Cr. 564, 109 P. 243, 32 L. R. A., N. S., 505, it is stated:

“It is the exclusive province of the Legislature to declare what shall constitute a crime, but it is the duty of the courts to determine whether a particular act done or omitted is within the intendment of a general statute.
“The Legislature in creating an offense may define it by a particular description of the act or acts constituting it, or it may define it as any act which produces, or is reasonably calculated to produce, a certain defined or described result.”

In State v. Lawrence, 9 Okla. Cr. 16, 130 P. 508, it was held that before an act could be punishable under the above statute, it must be publicly and openly done.

In the later case of Roberts et al. v. State, 27 Okla. Cr. 97, 225 P. 553, 555, this conrt, is discussing the applicability of said statute, stated:

“The true rule of interpretation of this statute should be and is that any act which is so grossly immoral as to shock the sense of decency of self-respecting people as a whole, or any act manifestly indecent and repugnant to the usages and customs of civilized society, or any act which is unquestionably criminal, though not covered by any other criminal statute, is a violation of the act.”

In West v. State, 27 Okla. Cr. 125, 225 P. 556, the defendant was charged with committing acts similar to those allegedly committed by defendant in the instant case, except that the acts were committed in a private home and not in a public place. In reversing the conviction it was stated:

“The testimony of the child was to the effect that an indecent assault and battery had been committed upon her person, but without any physical injury to her person. The act, according to her testimony, was committed in a private place. There was no testimony by any other witness that the accused committed an indecent act. No showing was made that the act Avas done in a manner ‘openly outrageous to public decency and injurious to public morals,’ as set out in the information and as provided by statute. If the testimony of the child is to be believed, the conduct of the accused, reprehensible as it was, was not open and notorious within the meaning of this statute. As was pointed out by this court in the case of Roberts et al. v. State, 27 Okla. Cr. 97, 225 P. 553, in an opinion rendered April 26, 1924, this statute was not designed to correct every moral dereliction. It is in a sense a police regulation, designed to protect the public peace by suppressing open and notorious acts having a tendency to outrage public decency and corrupt the public morals. The facts proved in this case do not bring it within this rule.”

See, also, Hall v. State, 67 Okla. Cr. 330, 93 P. 2d 1107; Kitchen v. State, 66 Okla. Cr. 423, 92 P. 2d 860; Fessler v. State, 12 Okla. Cr. 579, 160 P. 1129; Rachel v. State, 71 Okla. Cr. 33, 107 P. 2d 813, 814.

In Rachel v. State, supra, the following rules of law were adopted:

“The provision of the statute making it an offense to commit any act which openly outrages public decency and is injurious to public morals is directed against acts which are committed openly and affect the public. Penal Code, sec. 1769, 21 Okla. St. Ann. § 22.
“The term ‘openly’ as used in the statute providing that every person who willfully and wrongfully commits any act which openly outrages public decency and is injurious to public morals is guilty of a misdemeanor, means in an open manner, not clandestinely, not privately or in private, and is used in the sense of not being concealed as opposed to being hidden or secret. Pen. Code, sec. 1769, supra.”

It is our conclusion after a consideration of the statute and the above decisions that if the defendant had been clearly charged with a violation of the above statute, Tit. 21, § 22, O. S. 1941, the evidence on behalf of the state- wherein it was shown that the acts allegedly committed by defendant were open to the view of the public on Main street would have been sufficient to have sus? tained the conviction.

This brings ns to the consideration of the other two propositions presented on behalf of the defendant which may be considered together, and that is whether the information states an offense and whether the court erred in failing to give the jury a complete set of instructions.

The information filed against the defendant described the crime as “Taking Indecent Liberties With the Person of a Child.” In the charging part of the information it is stated:

“That the said Mont Hulsey, on the day and year aforesaid, and in the County and State aforesaid, did, in a public place, on Main Street of the City of Ardmore, in said County and State, unlawfully and wrongfully take indecent liberties with the body and person of one Geneva Lynn Shankles, being then and there a female infant ten years of age, in that the said Mont Hulsey did carnally abuse the said Geneva Lynn Shankles with his hands at said place as aforesaid, which acts were open to view of the citizens of the City of Ardmore, in the County and State aforesaid, and all of which acts openly outraged public decency and were injurious to public morals, contrary to the form of the Statutes, in such cases made and provided, and against the peace and dignity of the State.”
Prior to the passage and approval of House Bill No. 397 of the 20th Legislature on May 5, 1945, 21 O. S. Supp. § 1123, we had no statute specifically prohibiting conduct such as was indulged in by the defendant on the occasion in question. Since said act was passed subsequent to the time of the commission of the alleged crime by defendant, it would not control in the disposition of this case; but, if he is to be punished, it is solely because the information charges an offense under the general statute hereinabove quoted which prohibits “an act which openly outrages public decency and is injurious to public morals.”

In Bristow v. State, 86 Oída. Cr. 97, 189 P. 2d 629, it was held:

“The introductory paragraph of an information is ordinarily equivalent to a mere descriptive label. The charging part of the information must be examined to determine the character of the offense, if any, set forth in the information.”

Although the introductory paragraph of the information describes the offense which the defendant is alleged to have committed as being the crime of “Tailing Indecent Liberties With the Person of a Child,” the charging part of the information states that the act was done, first, in a public place on Main street in the city of Ardmore; second, the specific act is described as carnally abusing Geneva Lynn Shankles, age 10 years, with his hands in open view of the citizens.

The words “carnal abuse” are defined as an act of debauchery of the female sexual organs by those of the male which does not amount to penetration. Black’s Law Dictionary, Third Edition.

We think that the information should have been made more specific by alleging the specific act or acts committed by the defendant, but this court is committed to the view of placing a liberal interpretation on informa-tions and sustaining them where it alleged the elements of the offense sufficiently to apprise the defendant of he must be prepared to meet. Vincent v. State, 75 Okla. Cr. 128, 129 P. 2d 214. In accordance with this view this information and conviction would probably be sustained if it were not for the fact that the court in construing the information failed to sufficiently define the essentials of the offense in his instructions.

In instuction No. 1 the court detailed the information filed against defendant. The trial court then instructed the jury that the defendant was charged with violating the statute which we have hereinabove quoted. An instruction was then given concerning the competency of the evidence pertaining to the good reputation of the defendant. Another instruction was given upon the plea of temporary insanity and then an instruction was given which advised the jury as follows:

“If you find from the evidence beyond a reasonable doubt that the defendant, Mont Hulsey, is guilty as charged in the information, you will so say by your verdict and fix his punishment at a fine not exceeding $500.00 or imprisonment in the County Jail not exceeding one year, or by both such fine and imprisonment. (Defendant excepted to the giving of this instruction. Exception overruled. Defendant excepted to the ruling of the Court.
“John E. McCain Judge”

Nowhere in the instructions did the court attempt to define or explain the offense with which the defendant stood charged. One of the defenses interposed was that the act if committed by the defendant was not openly done and it was shown on cross-examination of the state’s witnesses that the defendant was sitting in his automobile with many people passing by within a few feet of his car without noticing any action on the part of defendant which was sufficient to attract their attention. The witnesses who were on the top of the building testified that several people passed by the car during the time the defendant had the little girl in the car with him, and that apparently none of them observed what was being done. Based on this evidence and the interpretations placed upon the statute relied upon by the state for a conviction, the defendant was entitled to an instruction defining the offense in such a manner as to submit to the jury the issue as to whether the act complained of was open to the yiew of the public in such a manner that it offended public decency.

We have hereinbefore quoted from the decisions in the case of Roberts v. State, supra; West v. State, supra; and Rachel v. State, supra; in which this court laid down the tests for interpretation of the statute, and these rules of law or ones in substance should be given to the jury for their guidance in determining whether the acts committed are an offense under the statute. As the case was submitted to the jury the information and all of the conversation concerning the information was directed to the alleged crime of “Taking Indecent Liberties With the Person of a Child,” and without a definition of the elements of the offense the jury might have thought it their duty to find the defendant guilty of “Taking Indecent Liberties With the Person of a Child,” even though they might have thought at the same time that the act was not openly and publicly committed in such a manner as to offend public decency and injure public morals.

In West v. State, supra, this court stated in the syllabus:

“The commission of reprehensible indecent acts by a man of mature years with a female child of tender years, where no physical injury resulted, and where the acts complained of were done in private, does not come within the provisions of section 2287, Compiled Statutes 1921, [21 O. S. 1941, § 22], commonly known as the statute against outraging public decency.”

This is one of those border line cases which is now clearly made criminal under provisions of the 1945 legislative act, supra, but which were not a violation of Tit. 21, § 22, O. S. 1941, supra, unless committed openly and publicly prior to the passage of the 1945 act.

Because the instructions did not definitely and clearly apprise the jury of the essential elements of the offense charged against the defendant, the case is reversed and remanded with instructions to grant the defendant a new trial.

BAREFOOT, P. J., and BRETT, J., concur.


author: BRETT, J.

text:
    C. L. NEAL v. STATE.
    No. A-10825.
    March 24, 1948.
    (192 P. 2d 294.)

      Logan, Cummins & Oerke, of Lawton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant, C. L. Neal, was charged by information filed in the county court of Comanche county with the offense of transporting persons for the purpose of prostitution, was tried, convicted and sentenced to serve one year in the county jail, and has appealed.

At the beginning of the trial the record discloses the following proceedings occurred:

“By the Court: The Court asks that all persons in the court room leave the court room except those actually engaged in the trial of this case, and that the doors of the courtroom be closed and that said hearing be held thence forward behind closed doors, and that the Bailiff is instructed to remove all other persons from the hearing and presence of this Court.
“By Jack Cummins: Comes now the defendant and moves for a mis-trial on the grounds that invoking the rule of all persons from the court room is prejudicial to the rights of the defendant and put the purview of a doubt in the jury’s mind establishing that this defendant has something to hide or cover up, therefore it is highly prejudicial to the rights of this defendant.
“By the Court: Overruled.
“By Jack Cummins: Exceptions.” C.M. 9.

At the conclusion of the evidence for the state, counsel for the defendant stated:

“By Jack Cummins: Comes now the defendant and renews his motion for a mis-trial at this time for the reason that the trial has been conducted in violation of Article 2, Section 20, of the Constitution of the State of Oklahoma, which requires that the defendant be given a speedy and public trial.” C.M. 46.

This motion was overruled with an exception allowed to the defendant.

It is insisted that the action of the trial court in excluding all persons from the courtroom and directing that the trial be held behind closed doors violated the constitutional right of the defendant to a public trial.

Apparently this court has never had occasion to decide the particular question involved as no decision of this court is cited in either of the briefs filed herein, and in our research upon this question we have been unable to find any decision of our court on this question.

The Constitution of Oklahoma 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: * * Art. 2, § 20, Oklahoma Constitution.

Similar constitutional provisions are set forth in many other state Constitutions and the 6th Amendment to the United States Constitution likewise contains a similar provision.

In the case of Davis et al. v. United States, 8 Cir., 247 F. 394, which case involved a prosecution in the United States District Court for the Eastern District of Oklahoma, the Circuit Court of Appeals of the 8th Circuit held:

“1. Under Const. U. S. Amend. 6, declaring that in all criminal prosecutions the accused shall enjoy the right to a public trial, it is error to exclude all persons excepting relatives of the defendants, members of the bar, and newspaper reporters, because feeling between the partisans of the prosecution, and defense bad risen to a bigb point, and it was reported that some of the witnesses were intoxicated; it appearing that, though the courtroom had become crowded, the court had previously merely cleared the aisles, and that many spectators who were decorous were excluded, only a few persons being admitted through the favor of the bailiff, and therefore such direction to clear the courtroom must be deemed to have deprived defendants of a public trial.
“2. Where the order of the court directing that the courtroom be cleared of all spectators except relatives of the defendants, members of the bar, and newspaper reporters deprived defendants of a public trial guaranteed by the Constitution, and prejudice will be implied, and an affirmative showing that defendants were harmed is unnecessary to justify reversal.”

In the body of the opinion it is stated:

“We appreciate the better position of the trial court to appraise the significance of surrounding conditions, but we cannot avoid the conviction that it acted upon the representations of those who did not adequately realize the great importance of keeping a place where the justice of the nation is judicially administered a public place for the admission of peaceful citizens. An intoxicated man could have been excluded or removed; the aisles and passageways could have been kept clear; when the seats were filled, other spectators could have been denied at the door; if the noise in the lobbies interfered with the proceedings, the lobbies could have been cleared; and individuals whose conduct outside the courtroom made their presence within a menace might have been excluded. But it is quite a different thing to exclude the public generally, regardless of their conduct or character.
“The Sixth Amendment provides that ‘in all criminal prosecutions the accused shall enjoy the right to a * * * public trial.’ The provision is one of the important safeguards that were soon deemed necessary to round out the Constitution, and it was due to the historical warnings of the evil practice of the Star Chamber in England. The corrective influence of public attendance at trials for crime was considered important to the liberty of the people, and it is only by steadily supporting the safeguard that it is kept from being undermined and finally destroyed. As the expression necessarily implies, a public trial is a trial at which the public is free to attend. It is not essential to the right of attendance that a person be a relative of the accused, an attorney, a witness, or a reporter for the press, nor can those classes be taken as the exclusive representatives of the public. Men may have no interest whatever in the trial, except to see how justice is done in the courts of their country.”

In the case of State v. Beckstead, 96 Utah, 528, 88 P. 2d 461, the syllabus reads:

“2. The trial court’s order, excluding all spectators except witnesses from courtroom before trial for carnally knowing female, was erroneous as depriving defendant of constitutional right to ‘public trial.’ Rev. St. 1933, 20—7—1, 20 — 7—2; Const, art. 1, § 12.
“3. The right to public trial being guaranteed by Constitution, defendant in criminal case may demand it, and denial thereof by trial court is presumed prejudicial. Const, art. 1, § 12.”

In the opinion it is stated:

“The error complained of in the exclusion order may seem technical. It is, however, fundamental. We are of the opinion that the order excluding all spectators including friends and relatives of the Defendant was error. The Constitution of this State, Sec. 12, Article 1, provides, among other things, that in criminal prosecutions the accused shall have the right to a speedy public trial. That section is discussed in a case similar to the instant case in State v. Jordan, 57 Utah, 612, 196 P. 565; also State v. Bonza, 72 Utah, 177, 269 P. 480; State v. Smith, 90 Utah, 482, 62 P. 2d 1110, and cases cited therein. In the cases first cited, what constitutes a public trial is considered as well as a reference to Cooley’s Constitutional Limitations. In all of those references, it is laid down as requisite that in a criminal prosecution the trial must be public. The order in the instant case deprived the Defendant of a public trial within the meaning of Section 12 of Article 1 of the Constitution of Utah * * * In criminal causes the constitution neither classifies nor limits the public in its right to attend criminal prosecutions. * * *
“The fact that the order was later modified by advising relatives that they might return and the further fact that some of them did return could not affect the consequences of the error. The original order was carried out during a portion of the trial.”

In the case of Tanksley v. United States, 9 Cir., 145 F. 2d 58, 156 A. L. R. 257, the headnotes read:

“1. Prejudice to one charged with crime, from a denial of the constitutional right to a public trial, will be presumed.
“2. The exclusion of the general public from the courtroom during a trial on a charge of having raped a married woman of ninteen years, to which the defense was consent, cannot be justified on the ground of embarrassment to the prosecuting witness.
“3. One of the main purposes of the requirement that the trial on a criminal charge be open to the public is the reasonable possibility that persons unknown to the parties or their counsel-, but having knowledge of the facts, may be drawn to the trial.”

Following the report of this case in 156 A. L. R., supra, there is an extensive annotation of the authorities on the question here involved which supports the reasoning of the cases hereinabove cited.

It appears from a consideration of these cases that the courts of all states whose Constitution guaranteed one accused of crime the right of public trial, were in agreement upon the proposition that the accused may insist upon the trial being absolutely open and public, except insofar as there is some good reason for excluding certain persons or classes, in which event these, and these only, may be excluded. It would appear that while the trial judge may for special causes exclude any spectators from the courtroom, yet he cannot make the order of exclusion extend further than the special issues warrant in the particular case. A sweeping order such as has been made in this case cannot be sustained. To do so is to say that the constitutional guaranty of a public trial is an empty promise. It not alone affects the accused but the public also is interested in knowing how their servants, the judge, county attorney, sheriff, and court clerk conduct public business.

For the reason that the defendant was denied his constitutional right to a public trial, the cause is reversed and remanded with instructions to the county court of Comanche county to grant the defendant a new trial.

BAREFOOT, P. J., and JONES, J., concur.


text:
    MRS. GLEN HOWARD v. STATE.
    No. A-10853.
    March 31, 1948.
    (192 P. 2d 297.)

      F. V. Westhafer, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   BAREFOOT, P. J.

Mrs. Glen Howard, the defendant, was charged in the court of common pleas of Tulsa county with the offense of cruelty to animals; waived a jury and was tried before the court, found guilty and sentenced to pay a fine of $25 and the costs, and has appealed.

Defendant, in her brief, states:

“Information had been filed as a felony charge, but at time of trial the information was changed to charge a misdemeanor.”

The record in this case shows that judgment and sentence was entered on October 19, 1946; that the case-made was served upon the county attorney of Tulsa county on December 26, 1946, was signed and settled by the trial court on January 11, 1947, and on the same day was filed in the court of common pleas and withdrawn, but the petition in error with case-made attached was not filed in this court until March 22, 1947, which was more than 120 days after the judgment was rendered by the trial court..

Tbe Attorney General bas filed a motion to dismiss tbe appeal on tbe ground that tbe same was not filed witbin tbe time provided by Tit. 22 O. S. 1941 § 1054, wbicb provides:

“In misdemeanor cases tbe appeal must be taken witbin sixty days after tbe judgment is rendered. Provided, However, that tbe trial court or judge may, for good cause shown, extend tbe time in wbicb such appeal may be taken not exceeding sixty days. * * *”

Under this section of tbe criminal code, an appeal filed in this court after the expiration of one hundred twenty days from tbe date of tbe judgment in a misdemeanor case is not filed witbin tbe statutory time, and this court is without jurisdiction to bear and determine tbe issues. Powell v. State, 65 Okla. Cr. 250, 85 P. 2d 326; Lee v. State, 74 Okla. Cr. 358, 126 P. 2d 94; Butler v. State, 83 Okla. Cr. 305, 173 P. 2d 453.

For tbe reasons herein stated, this court is without jurisdiction to hear and determine tbe appeal, and the motion to dismiss is sustained, and tbe case dismissed.

JONES and BRETT, JJ., concur.