text:
    J. W. DAVIDSON v. STATE.
    No. A-2912.
    Opinion Filed October 5, 1918.
    (175 Pac. 120.)
    1. EVIDENCE — Good Character — Reasonable Doubt. A defendant in a criminal action is presumed to be innocent until the contrary is proved, and, when the proof lends to overthrow this presumption and to fix upon such defendant the presumption of guilt. he is permitted to support the original presumption of innocence by proof of good character. Such good character, when proven, is a circumstance tending in a greater or lesser degree to establish his innocence. It is of value, not only in doubtful eases, but also when the testimony tends strongly to establish the guilt of the defendant. When proven, it is a fact in the case, and it is not do be put aside by the jury in order to ascertain if the other facts and circumstances considered in themselves do not establish the defendant’s guilt beyond a reasonable doubt; but such good character, if proven, should be considered by the jury in connection with all the other testimony in the case, and the jury should acquit if the evidence of good character, alone or with tiie otlier evidence, creates a reasonable doubt as to the defendant’s guilt.

      Z. APPEAL AND ERROR — Reduction of Sentence. Under section 0008, Rev. Laws 1010, this court has the Rower, in the further- , anee of justice, to modify any judgment appealed from by reducing the sentence.

      Appeal from County Court, Caddo County; ■ C. R. Johnston, Judge.

    J. W. Davidson was convicted of unlawful possession of intoxicating liquors, and appeals.'
    Modified and affirmed.

      Bristow & McFadyen, for plaintiff in error.
    ■The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

J. W. Davidson, plainti ffin error, was convicted in the county court of Caddo county on an information charging the possession of one gallon of whisky with the unlawful intent to sell, barter, give away, and otherwise dispose of the same in violation of law, and in accordance with the verdict of the jury he was sentenced to be confined- in the county jail for six months and to pay a fine of $250.

The evidence was substantially as follows:

- A. J. Smith, the complaining witness, testified that he and his brother-in-law, T. E. Robinson, met the defendant in Anadarko, near the Windsor Hotel; that they talked to him about getting some whisky, and he said, '“Give me a dollar and a half, and I will get you a pint,” and he went into the hotel and came out with the whisky, and they gave, him $1.50 for it; that they drank some of it and then gave the bottle to the chief of police; that he and his brother-in-law received between them $10 from the deputy county attorney for buying; the whisky and delivering the same to the chief of police.

T. E. Robinson testified, in substance, the same as the-witness Smith.

Fred Sullivan, chief of police in Anadarko, testified that he received the pint of whisky from Smith and Robinson and arrested the defendant, and then searched his boom, finding a bottle partly full of whisky and quite a number of empty whisky bottles.

The express agent at Anadarko testified that the defendant had received from him eight shipments of whisky of one gallon each within the last three months, and produced waybills.

The defendant testified that he was 50 years old; that he had farmed two years near Gracemont, and the last two years near Anadarko; that on the day alleged in the information he brought a load of cotton to Anadarko, had it ginned, and then received a shipment of a gallon of whisky; that he sent five pints home in the wagon with his son, and he took the other three pints to his room in the Windsoir Hotel; that he met a friend from Arkansas, and they drank some of the whisky, and when his friend left on the evening train he kept on drinking, and the next .morning he found himself in jail; that he was intoxicated to such an extent that he did not know what he was doing until the next morning; that he did not sell the whisky to Smith and Robinson, but did not remember what he did do. On cross-examination he was asked what time was it when he was arrested, and he answered, "About. 8 o’clock at night.”

Two of the errors assigned are the usual ones; that the verdict of guilty is not sustained by sufficient evidence, and is contrary to law. Others are that the court erred in failing to instruct the jury fully as to the law of the case, and erred in giving certain instructions excepted to.

To sustain a conviction for having possession of intoxicating liquors with intent to violate any of the provisions of the prohibition law, there must be evidence to prove possession and the unlawful intent. In this case possession is admitted. The proof relied upon to show the unlawful -intent was a sale. It is insisted that the evidence’ shows that the defendant was so drunk at the time of such sale as to be incapable of forming the necessary intent. Drunkenness, if so extreme as to make the existence of a definite purpose impossible, may be a defense to any crime of which a specific design or intent is an essential element. “To regard the fact of intoxication as meriting consideration in such a case is, not to hold that drunkenness will excuse crime, but to inquire whether the very crime which the law "defines has-been in point of fact committed.” (17 A. & E. Enc. of L. 407.)

We think the evidence was ample to show the unlawful intent, and that the instruction submitting this issue to the jury, while objectionable, was sufficient upon the facts of this case. The instruction submitting the law of character evidence is objectionable. If upon his trial the defendant places his previous good character in evidence, and no evidence tends to dispute it, the defendant is en-' titled, if he request it, to have a proper instruction given on evidence of good character. A defendant in a criminal action is presumed to be innocent until the contrary is proved, and, when the proof tends to overthrow this presumption and to fix upon such defendant the presumption of guilt, he is permitted to support the original presumption of innocence by proof of good character. Such good character, when proven, is a circumstance tending, in a greater or lesser degree, to establish his innocence. It is of value, not only in doubtful cases, but also when the testimony tends strongly to establish the guilt of the defendant. When proven, it is a fact in the case, and it is not to be put aside by the jury in order to ascertain if the other facts and circumstances considered in themselves do not establish the defendant’s guilt beyond a reasonable doubt; but such good character, if proven, should be considered by the jury in connectionr with all the other testimony in the case, and the jury should acquit if the evidence of good character, alone or with the other evidence, creates a reasonable doubt as to the defendant’s guilt.

It was the duty of counsel for the defendant to have asked for a proper instruction on character evidence, and, not having done so, the erroneous instruction does not constitute reversible error. At most, it could only prejudice the defendant in the assessment of the punishment, which we think under the facts in this case is too severeand for this reason, in the interest of substantial justice, we have concluded to modify the judgment and sentence to .the extent of reducing it to confinement in the county jail for 30 days and a fine of $50, and costs, and in default of the payment of the same to be satisfied as by law provided.

It appears that the court included in the judgment an attorney’s fee for the county attorney as a part' of the costs. This was without authority of law -and is not to be included as costs.

The judgment and sentence, as modified, will be affirmed.

ARMSTRONG and MATSON, JJ., concur.


source: Caselaw Access Project

author: MATSON, J.

license: Public Domain

text:
    S. H. PATE v. STATE.
    No. A-2993.
    Opinion Filed October 5, 1918.
    (175 Pac. 122.)
    1. JURY — Challenge to Panel — Grounds. Remarks of the trial judge addressed to persons- summoned as petit jurors at the beginning of the term of court at which defendant was tried and convicted, form no ground of challenge to the entire panel of jurors. A ohal-lenge to the entire panel of petit jurors can be founded, in a criminal case, only on the grounds stated in section 5842, Rev. Laws 1910.
    2. TRIAL — Remarks of -Trial Judge. Remarks of the trial judge to the panel of jurors summoned at the beginning of the term at which defendant was convicted examined, and held not to be prejudicial to this defendant, but properly .within the scope of the trial court’s duties.
    3. APPEAL AND ERROR — Admission of Evidence — Harmless Error. In this slate the burden is upon the defendant on appeal, not only to show that the court erred in the admission of evidence, but also, in addition thereto, to satisfy this court that the admission of such evidence injured the defendant substantially.

      Appeal from Superior Court, Muskogee County; H. C. Thurman, Judge.

    S.'H. Pate was convicted of unlawful possession of-intoxicating liquors, and he appeals.
    Judgment affirmed.

      W. J. Crump, M. G. Bailey, and Don M. Crump, for plaintiff in error.

      S. P. Freeling, Attorney General, and R. McMillan, Assistant Attorney General, for the State.
   MATSON, J.

This is an appeal from a judgment of conviction rendered in the superior court of Muskogee county against the defendant for having possession of intoxicating liquors with the unlawful intention of selling the same. Said judgment was rendered at the January, 1917, term of said court; the information charging in substance that oh the 8th day of January, 1917, the said S. H. Pate, in the county of Muskogee, had possession of 482 quarts of whisky with the intention then and there on his part of selling, conveying, bartering, giving away, and otherwise furnishing the same.

In substance the evidence is as follows: That the defendant was running a drug store in the town of Haskell, Muskogee county, Okla., and that there were a number of rooms upstairs over said drug store, some of which were occupied by the defendant and his family; that on the night of the 7th, or the morning of the 8th of January,' .1917, B. C. Hughes and several other officers searched the drug store and the rooms upstairs. In room No. 7 upstairs 388 quarts of whisky were found, and in the drug store downstairs 144 quarts of whisky were found; that the defendant was in bed in a room upstairs at the time the officers got there; that there were a lot of empty bottles back of the building in barrels, some of which were whisky bottles; that the drug store owned by the defendant had the reputation of being a place where liquor was sold; that the defendant had the keys both to'the room upstairs and to the drug store; that the defendant asked some of the officers “who tipped him off”; that the defendant called someone over the telephone at the time the officers were there and asked whoever he was talking to to get in touch with his lawyer, stating in substance:

“They have got me this time. All .the law in the country is here. I have just throwed up my hands.”

The defendant testified in his own hehalf in substance that, on the morning the liquor was found in the drug store and in room No. 7 upstairs, he was sick in bed; that he had been running the drug store at that place since the 15th of November, 1916; that the whisky found there did not belong to him, and that he had no knowledge of its being there; that his wife had rented room No. 7 to Ed McGinnis; that they had 14 rooms upstairs; that he and his wife occupied two, and the balance of the rooms were rented; that his wife rented the rooms and owned the building; that on the evening of the 7th of January McGin-nis borrowed s the keys to the drug store, stating that he wanted to go down and get something out of the store; that defendant’s wife gave McGinnis the keys, and that, when McGinnis came back, he threw the keys in at the door where defendant lived upstairs; that defendant had no knowledge of the fact that McGinnis wanted to put liquor in the store, or in room No. 7; that the automobile standing at the back of the building at the time the officers made the search belonged to McGinnis; that defendant sent word to McGinnis in the presence of the officers to come and get his car; that McGinnis came and got the car, and that defendant had not seen or heard of McGinnis since that time; that McGinnis had been in and around the town of Haskell for four or five months, and was supposed to be an oil man — that is, was a driller working for wages; that the whisky found in the drug store had evidently been put in there that night when defendant was asleep.

It is contended that the court erred in overruling the motion of plaintiff in error to quash and set aside the panel of jurors serving at the time this case was tried. This motion is based upon a statement, made by the trial court at the beginning of the term at which this cause was tried, to the jurors impaneled at that time, some of whom sat upon the jury in the trial of this-case, which statement is as follows:

“Gentlemen, before asking you if you have any excuse to offer why you should not serve as jurors at this term of court, I want to call your attention to the conditions. This court cannot perform its duty to this country without your co-operation. Today and tomorrow we shall be engaged in the trial of civil cases, and then we shall take up the criminal cases. On account of the rumored conditions existing in this county, I believe that this term of court will be the most important to the county which has been held during the past year, and possibly of more importance than any which will be held in this court during the coming year. Most of you men are busy men and will serve as jurors at a financial sacrifice, but we need just-'that kind of men to serve as jurors. We must have men in these civil cases who will do the square thing as between the parties, and in these criminal cases, many of which involve alleged violations of the liquor laws, we must have jurors who have the backbone to sit in the jury box, and, when the evidence convinces you as reasonable men that a defendant has flagrantly violated the liquor law, return a conscientious verdict, and fix a punishment such as will really punish for the offense and have a deterring effect on the defendant and others, when tempted to engage in such unlawful transactions. The custom in this county of juries fixing the punishment of this class of offenders, I mean those who are shown to be flagrant violators of the law, at 30 days in jail and a fine of $50, has become, from a practical standpoint, a mere license to engage in an unlawful business, and jurors who haven’t enough backbone to fix a punishment under the law sufficient for the offense committed should not sit as jurors in any court. -Don’t misunderstand me. I am not suggesting that you should convict any man unless you conscientiously believe from the evidence that that man is guilty. The court wants equal and exact justice done, but realizes that it takes good men and good citizens to do it. Under these conditions, I ask, gentlemen, if there are any of you who feel that you should'not serve as jurors.”

No challenges were interposed to the individual jurors. Sections 5841 and 5842, Eevised Laws 1910, provide:

“A challenge to the panel is an objection made to all the trial jurors returned, and may be taken by either party.
“A challenge to the panel may be founded only on a material departure from the forms prescribed by law, in respect to the drawing and return of the jury, or on the intentional omission of the sheriff to summon one or more of the jurors drawn, from which the defendant has suffered material prejudice.”

’it is clear that the remarks of the trial j udge above set ,out at the time of impaneling the jury form no ground of challenge to the entire panel under the statutes of this state, and the defendant does not contend that the remarks of the trial court in any way influenced any individual member of the jury who sat in the trial of this case to return a verdict against him.

However, it is appropriate to remark that the statements made by the trial judge in this case were entirely proper. It has always been a custom of this jurisdiction for the trial judge to admonish petit juries summoned to sit at any particular term as to their duties under the law. There is nothing in the remarks directed against any particular persons known to be charged with the violation of fhe criminal law at that term of court. The admonitions given by the court to the jury were applicable alike to all those who were proven guilty of a violation of the prohibitory liquor statutes, and the fact that the court said that, where a flagrant violation of such statutes was proven beyond a reasonable doubt, the offender should not be dismissed with the lowest fine and imprisonment, is certainly to be commended rather than condemned; and where, as in this case, ■ the evidence is convincing that the defendant supplied himself with a quantity of whisky sufficient nearly to float an ordinary battleship, he is in a very delicate position, to say the least, to complain of remarks of the court above set out.

A person who violates the laws of this state by selling intoxicating liquors does so after mature and thoughtful consideration, and solely for the purpose of gain. Such a violator makes it his business to disrespect and disregard the law, and to cause others to do the same thing. The evidence of guilt in this case is so overwhelming, and the defense interposed so flimsy, as not to merit serious consideration.

Among other things, it is contended that upon cross-examination the defendant was compelled to admit that he had paid the retail liquor dealer’s license to the federal government for a period prior to .the time this whisky was found on his premises, and under his control; but it is contended that this was prejudicial error, because the payment did not cover the particular time alleged in the information, and counsel cite the case of Tucker v. State, 9 Okla. Cr. 555, 132 Pac. 689, to support their contentions. But the Tucker case was based upon a conviction for a violation committed prior to the taking effect of the statute making the possession of more than one gallon at a person’s residence, or more than one quart of liquor at a person’s place of business, prima facie evidence of an intent to violate the law. In this case, the violation occurred after that statute took effect, and the same presumption obtained against this defendant based upon the quantity found as obtained, based upon the payment of the retail liquor tax. The admission of such testimony, therefore, in this case, cannot be held to be prejudicial.

The judgment of conviction, that the defendant pay a fine of $500 and be imprisoned in the county jail for a period of six months, is affirmed.

DOYLE, P. J„ and ARMSTRONG, J., concur.


text:
    JOHN COLLINS v. STATE.
    No. A-2980.
    Opinion Filed October 7, 1918.
    (175 Pac. 124.)
    1. CONTINUANCE — Discretion of Court — Absent Witnesses. An application for a continuance on account of absent witnesses is addressed to tbe discretion of the trial court, and a judgment of conviction will not lie disturbed because the trial court overruled such a motion, unless there appears to have been a manifest abuse • of discretion.
    2. SAME. Application and motion for a continuance and evidence in support thereof examined, and held, no abuse of discretion shown in overruling the same.
    8. JURY — Excusing Juror — Bias—Review on Appeal. Where the trial court on challenge by the state excuses a juror because of bias in favor of one of the defendants jointly on trial, and also because of his intimate acquaintance with the family of such defendant, his action in so doing was a matter of discretion, and unless there appears to hare been an abuse of discretion oil tbe part of the trial court, which operated to (lie prejudice and injury of the appellant, tbe judgment of conviction will not lie set aside.
    4. APPEAL AND' ERROR — Prejudice—Burden of Proof. Before this court is authorized to reverse a judgment of conviction, the burden is upon the appellant to show that error was committed in the trial prejudicial to his substantial rights.
    5. WITNESSES — Competency—Discretion of Court. The question of the competency of a witness under ten years of age is a matter addressed peculiarly to the discretion of the trial court.
    6. SAME — Testimony of Infant. Where no abuse of discretion appears in permitting a witness under ten years of age to testify in behalf of the state, this court is not authorized to reverse a judgment of conviction upon that ground.

      '¡. EVIDENCE — Expression of Opinion. Upon the trial, a deputy sheriff, who arrested this defendant some five or six hours after the alleged crime had been committed, was permitted to testify that at the time of such arrest, the defendant was intoxicated. Held, that an objection to such testimony upon the ground that it was error to permit the said officer to express his opinion as to the intoxicated condition of the defendant is not well founded.

      8. APPEAL AND ERROR — Objections by Codefendant. Where two or more persons are being jointly tried and certain evidence applicable to only one of such defendants is admitted without objection or exception by either of the other defendants, it is too late, after conviction, for one of said defendants to whom such evidence was not applicable to first urge that the court erred in admitting such testimony as to him.
    9. EVIDENCE — Expert Evidence — Firearms. The. subject of firearms and the size of bullets shot by different kinds of pistols is a proper subject upon which to permit a qualified person to express an opinion, where such opinion is material to the issues involved in the trial.
    10. APPEAL AND ERROR — Remarks of Prosecuting Attorney— Failure to Object — Review. Where certain remarks of the county attorney in argument to the jury are not such as are made grounds for reversal by statute, and there was no motion.to exclude such remarks from the consideration of the jury, nor any ruling of the trial court adverse to the defendant to which an exception was saved at the time, there is no question presented for this court to consider.
    11. EVIDENCE — Proof of Motive. Proof of motive, while not indispensable, is always permissible where the intent of the defendant in the commission of the 'act is at issue.

      12. HOMICIDE — Indictment and Information — Conspiracy—Instructions — “Principals.” In a prosecution for homicide alleged to have been committed by two or more persons, it is not necessary for the indictment, or information, to charge a conspiracy to commit murder. All persons concerned in the commission of crime in this state, whether they directly committed the act, or aid and abet in its commission, though not present, are “principals,” and they may be indicted, or informed against, and tried as such. Under such an indictment, or information, where the proof would tend to sustain the inference that a conspiracy existed between the said principals to commit the alleged crime, it was appropriate for the trial court to give an instruction upon the subject of conspiracy to murder.
    13. APPEAL AND ERROR — Instructions—Harmless Error. Instruction on conspiracy to murder examined, and held clearly harmless as to this defendant under the facts of the case.

      Appeal from District Court, Pittsburg County; Ernest B. Hughes, Assigned Judge.

    John Collins was convicted in the district court of Pittsburg county of the crime of murder, and sentenced to imprisonment in the penitentiary for life, and appeals.
    Judgment affirmed.
    Samuel Corbin was killed on the 14th day of July, 1916, at his little store near Cole’s Crossing on the Wilbur-ton branch of the Missouri, Kansas & Texas Railroad in Pittsburg county, Okla. The building was located a short distance from the south side of the railroad on a little hill and faced north. ' Corbin lived there alone and conducted a small grocery and supply store. He was a man of some means and had some personal property at said place. His nearest neighbor was the family of Ed Gonzales, who lived at a section house on the railroad about a hundred yards from the store, which, section house was on the south side of the railroad, but north of Corbin’s place in plain view.
    The defendant John Collins, together with his brother, Charlie Collins, and Elmer Freeman, was seen on the afternoon before the killing, which occurred about dusk, at a store managed by Mr. Vance Long at the little village of Carbon, a short distance from Cole’s Crossing. Several witnesses saw them at this store in the afternoon, and positively identified the defendants as the parties who were seen there. The defendants were also "identified by other parties, who saw them in the vicinity of the place where this crime was committed at different times during the afternoon of the day on which the crime was committed.
    Some of the family of Ed Gonzales, just a few minutes before the killing t9ok place, saw the three defendants at the Gonzales’ home and saw the defendant John Collins with a gun or pistol; testifying that John Collins asked, “Is that man up there at the store now?”- and was informed that they “didn’t know whether he was up there or not.” That the three defendants were then seen immediately to go up to the store of the deceased. That when they got to the store they opened the door without knocking and went in. That in a few minutes gunshots were heard up in that direction, which attracted the attention of those at the, Gonzales home, and they saw the defendant John Collifis fire the last shot as he stepped out of the door of the deceased’s store.' That Charlie Collins and Elmer Freeman rushed out of the door ahead of John Collins, and went away and waited for John. The three were then seen starting down a lane in the direction of Haileyville, the home town of the defendants. That a Mr. Rogers started out in pursuit of the defendants, tried to head them off, and was shot at by one of the defendants. That the place where the deceased was killed’was a rather lonely spot, and the country surrounding, the place was not thickly .settled. That Dr. Turner, who was called to attend the deceased after the shooting, reached there before the deceased died, and the deceased told Dr. Turner that he (deceased) was in a dying condition; that three men came in his store and asked for something to eat, and deceased told them he did hot have anything to eat; and that, without another word, they opened fire on him with their guns.
    The deceased died shortly thereafter. The defendants were arrested a litle after midnight of the night after the killing at the town of Haileyville. Charlie' Collins was found at his home, and John Collins and Elmer Freeman were found together in another house. Charlie Collins and John Collins both had pistol’s in their possession at the time of their arrest, John Collins’ pistol being concealed under the covers in the bed in which he was sleeping.
    The defense interposed was an alibi, the defendants claiming to have been in and around Haileyville during the entire day and evening of the 14th of July, 1916, and having several witnesses to support their theory of defense.

      W. N. Redwine and Marianelli & Exendine, for plaintiff in error.

      S. P. Freeling, Attorney General, and R. McMillan, Assistant Attorney General, for the State.
   MATSON, J.

(after stating the facts as above). It is first contended that the trial court erred in overruling defendant’s motion for a continuance on account of the absence of Jack Benson and Jim McKinney, two witnesses for the defendant whose testimony is alleged to have been material, in that it would have tended to establish the alibi, the defense interposed in behalf of defendant.

The case was first set for trial on the 2d day of October, 1916, at which time the motion for a continuance was interposed, and at that time the case was continued until the 12th day of October, 1916, in order to give the defendant time to procure the attendance of these witnesses and also to have the benefit of the services of Mr. Redwine, the chief counsel of the defendant, who was suffering from a slight illness on October 2d. On the 11th day of October, the defendant renewed his motion for a continuance on account of the absence of these witnesses, and alleged in said motion that he had diligently tried to obtain their presence, or testimony, but that he was unable to locate them; that the witness James McKinney had enlisted in the United States army, and his whereabouts were unknown at that time; and that the witness Benson was supposed to be located somewhere in Arkansas, but that the defendant was unable to learn his present post office address.

Applications for a continuance are addressed to the discretion of the trial court, and it has been repeatedly held by this court that a judgment of conviction will not be disturbed because a trial court overruled an application for a continuance on account of absent witnesses, unless there, appears to have been a manifest abuse of discretion. Also, it has been held by this court that applications for a continuance are to be strictly construed against the applicant. They cannot be aided by inference or presumption. The presumption will be entertained in this court that the application states the facts of the case relied upon in the strongest light possible in favor of the defendant. Rhea v. Ter., 3 Okla. Cr. 230, 105 Pac. 314; Davis v. State, 10 Okla. Cr. 174, 135 Pac. 438; Sayers v. State, 10 Okla. Cr. 239, 135 Pac. 1073; Petty v. State, 11 Okla. Cr. 438, 147 Pac. 782; Morehead v. State, 12 Okla. Cr. 62, 151 Pac. 1183, Ann. Cas. 1918C, 416.

In overruling the motion for a continuance, the trial court used the following language: •

“There isn’t any showing here at all that, there is any prospect of getting these witnesses here who are out of the jurisdiction of the court, none whatever, and no attempt, eto be made. There is absolutely no assurance to this court that the attendance of these witnesses can be had at a subsequent day of this term or at a subsequent term of this court.”

The remarks of the trial judge in overruling the motion for a continuance state the truth. Continuance on account of absent witnesses should never .be granted merely for delay, but only in order to obtain for the defendant material testimony in his behalf.

As- it is apparent from the face of the application, and from the testimony of witnesses in support thereof, that there was no reasonable possibility of obtaining the attendance of the absent witnesses at the next term of court or at a later day in the same term, there was no abuse of discretion on the part of the trial court in overruling the motion. The burden is upon the defendant to show a reasonable probability that the attendance of the absent witnesses may be obtained by the granting of the continuance, or, where the witnesses are absent from the state, that their whereabouts may be discovered and depositions taken before the next term of court.

In this case, a continuance was allowed for ten days, and at the end of that time the defendant was just as much in the dark as to the whereabouts of these witnesses as he was at the time he first filed his application. The crime ■was committed in July, 1916, and the trial was not had until October. These absent witnesses lived in Haileyville, Okla., at the time of the commission of the alleged crime, and Haileyville was also the home of the relatives of the defendant, and, had reasonable diligence been exercised, it •is apparent that closer touch would have been kept of witnesses whose testimony was considered important and necessary in the defense. It may also be noted that it is set out in. the application that the testimony of these witnesses is cumulative of 'the testimony of other witnesses who were present at the trial, and testified in the behalf of the defendant, so that, viewing the application of the court’s action in overruling the same from every standpoint,, it is apparent that there was no abuse of discretion.

During the progress of the trial, the court excused on challenge by the state the juryman Noble. Upon his voir dire examination, this juryman said that he had been an old acquaintance of one Freeman, and the family of said Freeman, a codefendant, jointly on trial, and that his acquaintance with the said Freeman and Freeman’s family and friendship for the family would likely bias him in favor of Freeman, and for that reason, although he knew nothing about the facts of the particular case, he would like to bé discharged from the jury.

Whether or not the juryman, under the circumstances stated, should have been permitted to sit in the trial of the case, was a discretionary matter with the trial court. • See subdivision 2, section' 5858, Revised Laws 1910. The court’s action is not shown to be prejudicial to this defendant in any way.

It is also contended that the court erred in overruling the defendant’s challenge to the juryman Cochran, because on his voir dire examination the juror stated that if a situation should arise in the case where an acquaintance in whom he placed confidence and knew to be trustworthy testified to one state of facts, and a stranger testified to another state of facts contradictory thereto, he (Cochran) would be inclined to believe the acquaintance in preference to the stranger, and for that reason it is contended that because Cochran was an acquaintance of certain officers who testified in this case, and was a stranger to the defendant and some of his witnesses, the said juror should have been discharged. The grounds urged constitute none of the statutory disqualifications of a trial juror. In the absence of any showing of disqualification, this court cannot hold that the defendant was prejudiced because the juror Cochran sat upon the jury in the trial of the cause. Before the court is authorized to reverse a judgment of conviction, the burden is upon the appellant to show that error was committed prejudicial to his substantial rights.

The next assignment of error relates to the action of the trial court in permitting one Nolie Scruggs to testify as a witness on behalf of the state. The said Nolie Scruggs was at the time of giving her testimony about nine years of age. This question also is one peculiarly within the discretion of the trial court. We have examined the record, both the voir dire examination into the competency of this witness, and also the record of the testimony of the witness concerning the facts of the case; and we see no abuse of discretion in permitting this witness to testify. She seemed to be capable of receiving just impressions of the facts respecting which she was examined, and of relating them truthfully. This is the statutory test of competency of witnesses under ten years of age. Darnell v. State, 14 Okla. Cr. 540, 174 Pac. 290, and cases there cited.

It is also contended that the court erred in permitting a deputy sheriff, who arrested this defendant some five or six hours after the alleged crime had been committed, to testify that, at the time of such arrest, it was the impression of the witness that the defendant had been drinking. The objections urged go not to the relevancy of the testimony, but are that the impression or opinion of the officer as to intoxication of the defendant was inadmissible. We think the objections urged to be without merit. Intoxication may be proved by the opinion of witnesses. Stuart v. State, 38 Tex. Cr. R. 627, 44 S. W. 505; Pace v. State, (Tex. Cr. App.) 79 S. W. 531; State v. Dolan, 17 Wash. 499, 50 Pac. 472; Dozier v. State, 130 Ala. 57, 30 South. 396. The case of Colbert v. State, 4 Okla. Cr. 500, 113 Pac. 558, does not support the contention of counsel for plaintiff in error that a witness may not be permitted to give an opinion as to the intoxicated condition of a person. It appears, from the body of the opinion in that case that the witness was permitted to testify that the defendant was drunk, but this court held that such witness should not be permitted to further testify and give opinion, judging from the drunken condition of the defendant, whether or not he was able to walk, etc. A clear distinction is made between permitting a witness to testify as to the intoxicated condition of the defendant, and permitting the opinion of such witness to be given as to whether or not the defendant was so intoxicated as in the opinion of the witness to preclude his having committed the crime charged; that being the ultimate fact to be determined by the jury.

Another objection that is clearly without merit relates to a certain conversation that the deputy sheriff, Larrison, had with Mrs. Charlie Collins in the presence of the co-defendant Charlie Collins at the time and just before the said Charlie Collins was arrested, relative to the whereabouts of Charlie Collins on the day the killing took place. This evidence was clearly competent as to Charlie Collins, who was jointly being tried, and was admitted without objection and exception on the part of either of his co-defendants. The substance of Mrs. Charlie Collins’ testimony relative to the whereabouts of her husband on the day of the homicide, even had it been objected to and been improperly admitted, had no reference to this defendant and was in no way prejudicial to him. We see no merit, therefore, in this assignment of error. Bartel v. State, 4 Okla. Cr. 135, 111 Pac. 669; Ford v. State, 5 Okla. Cr. 241, 114 Pac. 274; Steward v. State, 9 Okla. Cr. 327, 131 Pac. 725.

It is also contended that the court erred in permitting the witness T. C. Collier, sheriff, to testify over the objection of defendant in regard to a certain' bullet which was found in the body of the deceased, and in permitting said Collier to compare the same with a bullet taken out of a shell which was found in a pistol in the bed where this defendant was sleeping at the time of his arrest. We think this evidence was proper. An issue was raised as to the size of the bullet found in the body of the deceased, whether or not it was a 38-caliber or a.41. Some evidence had been introduced to the effect that the bullet found in the body of the deceased was a 38-caliber bullet. The gun found in the bed of the defendant was a 41-caliber, and the sheriff was permitted to compare a bullet taken from a shell found in said gun, with the bullet found in the body of the deceased, and, after having properly qualified as an expert in the use of pistols, he was permitted in the presence of the jury to compare said bullets, and to express his opinion that they were of the same caliber.

The subject of firearms and the size of bullets shot by different kinds of pistols is not a subject upon which the ordinary layman would be qualified to express an opinion ; but this. witness, having been a peace officer for many years, and having shown himself to be familiar with the use of firearms and the manner in which the same were loaded, and also with the different kinds of cartridges and bullets used in various kinds of firearms, was qualified, after a comparison of the same, to give, in our opinion, as an expert, his opinion as to whether or not the bullets introduced in evidence were of the same size. The bullets themselves were permitted to be introduced in evidence, and this character of demonstrative evidence is always permissible where material to the issues, and in this case we think it clearly established that the evidence was material. 8 R. C. L. section 173; Crawford v. State, 112 Ala 1, 21 South. 214; State v. Laudano, 74 Conn. 638, 51 Atl. 860.

Certain remarks of the county attorney to the jury in argument are, complained of. An examination, of the record fails to disclose that the defendant moved that they be excluded from the consideration of the jury, or that the trial judge made any ruling concerning such remarks, to which the defendant objected and saved an exception. The remarks incorporated in the case-made are not such as should cause a reversal of this judgment in the absence of any adverse ruling of the trial court thereon. Counsel for defense should have moved the court to exclude the remarks and, if the court failed to do so, should have saved an exception to such ruling. In the absence of any ruling by the trial court or exception thereto, there is nothing for this court to consider. Tucker v. State, 9 Okla. Cr. 587, 132 Pac. 826; Johnson v. State, 5 Okla. Cr. 13, 113 Pac. 552; Williams v. State, 4 Okla. Cr. 523, 114 Pac. 1115.

It is also contended that the court erred in permitting a witness to testify that the deceased at' the time he was killed was possessed of a very valuable diamond ring, and had other personal property on the premises where the kill-t ing occurred. ■ We think this evidence is competent as tending to show that the motive for the killing may have been robbery. While proof of motive is not indispensable, yet it is always permissible where intent in the commission of the act is at issue. State v. Hembree, 54 Or. 463, 103 Pac. 1008; People v. Grow, 16 Cal. App. 147, 116 Pac. 369.

Another assignment of error urged in the brief of counsel for defendant, and vigorously presented in oral argument as grounds for reversal of this judgment, relates to instruction No. 6, given by the court over the objection and exception of the defendant, which instruction is as follows:

“The court instructs the jury that where two or more persons combine or conspire together by some concert of action, to accomplish some criminal or unlawful purpose or some purpose not in itself criminal or unlawful by criminal or. unlawful means, then such combination is what is known in law as a conspiracy to commit crime. The court instructs the jury as a matter of law that while it is necessary, in order to establish a conspiracy, to prove a combination of two or more persons by concert of action, to accomplish the criminal or unlawful purpose alleged in the information, yet it is not necessary to prove that the parties ever came together and entered into any formal agreement or arrangement between themselves to effect such purpose. A cornbination or cominon design or object may be regarded as proved if the jury believe from the evidence beyond a reasonable doubt 'that' the parties charged were actually pursuing, in concert, the unlawful object stated in the information, whether acting separately or together, by common or different means, provided all were leading in the same unlawful result, and if two or more persons, moved and influenced by a common intent and purpose to feloniously assault another with a deadly weapon and to take his life or to commit such felony upon .such person, then the law says that under such circumstances the act of one is the act of all assailants and the shot of one is the shot of all; they are all responsible, under such circumstances, for the acts of each other.”

It- is contended that this instruction is erroneous because the information does not charge the defendants with the conspiracy to commit murder, nor does the testimony anywhere tend to prove a conspiracy on the part of this defendant, or his codefendants. It is not necessary for the indictment or information to charge a conspiracy. Under our statutes:

“All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.” (Section 2104, Revised Laws 1910.)

They may be indicted and tried as such. Drury v. Ter., 9 Okla. 398, 60 Pac. 101.

The information in this case jointly charged this defendant, with his brother, Charlie Collins, and one Elmer Freeman, directly with committing the murder of one Samuel Corbin. Under such a charge, where the proof would tend to sustain the inference that a conspiracy existed between the said principals to murder, it was appropriate for the court to give an instruction to that ' effect, and the theory of the state in this case, and the evidence in support thereof was sufficient to authorize the jury to reach the conclusion that a conspiracy did exist between these parties jointly charged to kill and murder the said Corbin. ° But it is apparent, from an examination of the evidence in this case, that the jury wholly disregarded the conspiracy theory, else Charlie Collins and Elmer Freeman would also have been convicted. But in view of the fact that Charlie Collins and Elmer Freeman were acquitted and John Collins alone was convicted, and the eyewitnesses to the tragedy testify that John Collins was seen to fire shots at the deceased after Charlie Collins and Elmer Freeman were seen to run away from the scene of the tragedy, it is clear that this defendant was convicted because the jury believed that he was the person who “directly committed the act constituting the offense,” and that Charlie Collins and Elmer Freeman did not conspire with him in its commission.

The evidence on the part of the state clearly indicates that the fatal shots were fired by John Collins independent of any collusion or concert of action on the part of his co-defendants, and it would be a plain miscarriage of justice to reverse this case as to John Collins because the court gave the foregoing instruction relative to conspiracy, as such instruction was clearly harmless as to John Collins. It is well established in this state that an error in the instructions of the court will not be considered reversible unless it appears from the record that the • defendant was injured thereby. Boswell v. State, 8 Okla. Cr. 152, 126 Pac. 826; Ostendorf v. State, 8 Okla,. Cr. 360, 128 Pac. 144.

Other assignments of error are urged as ground for reversal of this judgment; but upon a thoughtful and careful examination of the record, and after a thorough and able presentation of the casé by counsel, the conclusion is reached that the errors complained of are such as heretofore have been decided by this court adversely to the contentions of the defendant’s counsel. 0

The evidence in this case is amply sufficient to support the verdict and judgment. Defendant was ably represented in the court below and had a fair and impartial trial according to the forms of law.

The judgment is affirmed.

DOYLE, P. J„ and ARMSTRONG, J., concur.


author: DOYLE, P. J.

text:
      Ex parte E. T. BUTLER.
    No. A-3446.
    Opinion Filed October 7, 1918.
    (175 Pac. 132.)
    1. HABEAS CORPUS — Appeal—Burden of Proof. Upon an application for writ of habeas corpus to be let to bail after commitment for a capital offense by an examining magistrate, tlie burden is upon the petitioner to show facts sufficient to entitle him to bail, when those facts! do not appear from the evidence adduced on the part of the prosecution.
    2. BAIL — Application—Evidence—Reasonable Doubt. If upon a consideration of all the evidence introduced on the application for bail the court is of the opinion that it is insufficient to create a reasonable doubt of the petitioner’s guilt of a capital offense, bail will be refused.
    3. APPLICATION FOR BAIL. Upon this application, the evidence considered, and bail denied.
    E. T. Butler brings writ of habeas corpus to be admitted to bail.
    Writ denied, and bail refused.

      Pruiett, Sniggs '& Burns, for petitioner.

      R. McMillan, .Assistant Attorney General, and W. W. Cotton, County Attorney of Muskogee County, for respondent.
   DOYLE, P. J.

In this proceeding the petitioner, E. T. Butler, by his attorneys, has presented to this court a verified petition, wherein he alleges that he is unlawfully imprisoned and restrained of his liberty in'the county jail of Muskogee county, by John S. Borger, sheriff of said county; that the cause of his said restraint is that he has been committed to said county jail by an examining magistrate upon a preliminary examination held by him at Muskogee on the 8th day of July, 1918, upon an information charging petitioner with the murder of one J. M. Davis'in said county and state on the 3d day of July, 191&. Petitioner avers that he is not gulty of the crime of murder as charged in said information, and that upon the evidence introduced at said preliminary examination, together with the affidavits of petitioner and certain other persons which are presented herewith, it is shown that the proof of his guilt of the crime of murder is not evident nor the presumption thereof great, and that therefore petitioner is entitled to be let to bail. It is also shown that the petitioner applied to the district court of Muskogee county to be admitted to bail, and that bail was denied. A transcript of the testimony taken upon the preliminary examination is made a part of his petition.

The testimony for the state upon the preliminary examination shows that about 11 a. m. on the 3d day of July, 1918, the petitioner did kill and murder J. M. Davis, by shooting him twice with a shptgun; that the shooting occurred in the office of J. M. Davis, o,n the second floor of the Carter building in the city of Muskogee; that the petitioner and the deceased, both colored, .were practicing physicians with offices in said building. No evidence was offered on the part of petitioner upon his preliminary examination, and petitioner in his affidavit admits the shooting, but claims it was done in his necessary self-defense.

The settled rule of this court is that upon an application for bail by writ of habeas corpus, after commitment for a capital offense, by an examining magistrate, the burden is upon petitioner to show facts sufficient to entitle him to bail, when these facts do not appear from the evidence adduced on the part of the prosecution, and if, upon a consideration of all the evidence introduced on the application for bail, the court is of the opinion that it is insufficient, to create a reasonable doubt of the petitioner’s guilt of a capital offense, bail will be refused. In re Kerriel, 12 Okla. Cr. 386, 157 Pac. 369, afid cases cited.

We have examined the record, and, without entering into a discussion of the facts, we deem it sufficient to say that, upon a careful consideration of all the evidence presented in support of the application, we are of opinion that petitioner is not entitled to be admitted to bail • as a matter of legal right.

It is therefore considered and adjudged that the writ be denied, and bail refused.

ARMSTRONG and MATSON, JJ., concur.


text:
    J. A. ROSS v. STATE.
    No. A-2983.
    Opinion Filed October 7, 1918.
    (175 Pac. 129.)
    APPEAL AND ERROR — Affirmance. The letter and spirit of the law is that, if the defendant has had a fair trial, and if this court is satisfied that the verdict against the defendant was not reached by error, or as the result of passion or prejudice, the conviction should be affirmed.

      Appeal from County Court, Cotton County; J. C. Norman, Judge.

    J. A. Ross, convicted of a violation of the prohibitory law, appeals.
    Affirmed.

      Charles H. Ruth, for plaintiff in error.
    The Attorney General' and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, J. A. Ross, was convicted in the county court of Cotton county on an information charging that in said county on the 4th day of January, 1917, he did then and there willfully and unlawfully transport and convey 240 qdarts of whisky from the north end of the Burkburnett bridge, across Red river, to a point one mile northeast of said bridge in Cotton county. His punishment was fixed at 30 days’ confinement in the county jail and a fine of $300. From the judgment rendered in pursuance of the verdict, an appeal was perfected by filing in this court on April 17, 1917, a petition in error with case-made.

The evidence shows that the defendant Ross was riding in an automobile driven by another person; that they crossed from Texas on said bridge, and were stopped by officers about a mile northeast of the bridge in Cotton county. They found 240 quarts of whisky therein, and the defendant Ross admitted the whisky in the car belonged to him. There was no evidence offered on the part of defendant.

Counsel for plaintiff in error has assigned a large number of errors on the record of this case, and the technical questions raised have beeii elaborately discussed both orally and in the briefs. However, upon a careful consideration of the record, our conclusion is that the appeal is without substantial merit. The information is sufficient and is properly verified. The objections interposed to the jury panel were properly overruled. The instructions given by the court fairly and fully cover the law of the case, and the instructions requested were properly refused.

We are of the opinion that, on the undisputed facts and the law as we understand it, the defendant was properly and legally convicted. The letter and spirit of the law is that if the defendant has had a fair trial, and if this court is satisfied that the verdict against the defendant was not reached by error, or as the result of passion or prejudice, the conviction should be affirmed.

Finding no substantial error in the record, the judgment is affirmed. •

ARMSTRONG and MATSON, JJ., concur.


text:
    C. H. JONES v. STATE.
    No. A-2982.
    Opinion Filed October 8, 1918.
    (175 Pac. 556.)
    INTOXICATING LIQUORS — Unlawful Transportation — Evidence, in . a prosecution for unlawfully conveying intoxicating liquor, the record and evidence examined, and held that no material error was committed on. the trial and the evidence is sufficient to sustain the conviction.

      Appeal from County Court, Cotton County; J. C. Norman, Judge.

    G. H. Jones, convicted of a violation of the prohibitory law, appeals.
    Affirmed.

      Charles Ruth, for plaintiff in error.
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, C. H. Jones, was convicted in the county court of Cotton county on an information charging that in said county, on the 3rd day of January, 1917, he did then and there willfully and unlawfully transport and convey 299. quarts of whisky from the town of Randlett to a point five miles north of said town on the public road adjoining the farm of Mr. Gallant, in Cotton county. • His punishment was fixed at 30 days’ confinement in the county jail and-a fine of $350. From the judgment rendered in accordance with the verdict, an appeal was perfected by filing in this court on April 17, 1917, a petition in error with case-made.

The evidence shows that the officers came upon the defendant Jones and a man named Reddell on the public highway at the point alleged in the information. They had a Cadillac car and one of the tires was off; the officers searched the car and found 299 quarts of whisky in sacks; they also found a gun in the car with the whisky. L. O. Watson testified:

That he -had a conversation with the defendant, Jones, and he said “that if he had another casing they would not have got him; that he was a fool for not having another casing along.” He also said that “a man is a fool who would not take along an extra tire on a trip like that, and that if he had an extra casing the officers would not have gotten him.” That he verified the information in this case, and he saw his deputies unloading the whisky at Walters.

There was no evidence offered on the part of the defendant.

The errors assigned are:

The court erred in overruling defendant’s motion to quash the information and the warrant in this case. The court erred in overruling the defendant’s motion to quash the venire of jurors. The court erred in overruling the objections of the defendant to the testimony of L. O. Watson, Clarence Carter, Cleeve Hooper, and C. E. Cook. The court erred in refusing to direct a verdict for the defendant. The court erred in refusing to give certain requested instructions and in giving certain instructions over the defendant’s objections. That the verdict is contrary to the law and the evidence.

Upon a careful consideration of the record, our conclusion is that the technical questions raised by the errors assigned are destitute of merit; the information was sufficient, and the instructions given by the court fully and fairly cover the law of the case. The evidence is conclusive of the defendant’s guilt. It is our opinion that on the undisputed facts, and the law as we understand it, the defendant was properly and legally convicted. The letter and spirit of the law is that if the defendant has had a fair trial, and if. this court is satisfied that the verdict against the defendant was not reached by error, or as the result of passion or prejudice, the conviction should be affirmed.

Finding no substantial error in the record, the judgment is affirmed.

ARMSTRONG and MATSON, JJ., concur.


author: ARMSTRONG, J.

text:
    GEORGE SNODGRASS v. STATE.
    No. 2353.
    Opinion Filed October 9, 1918.
    (175 Pac. 129.)
    1. TRIAL — Instructions—Insanity. An instruction upon tlie issue of insanity, when that issue is properly raised, should be given in compliance with the rule laid down in Adair v. State, G Okla. Cr. 284, 118 Pac. 410, 44 L. It. A. (X. S.) 119.
    2. SAME — Insanity—Instructions—Burden of Proof. An instruction given in the following language: ‘‘You are instructed that the defendant has interposed as one of his defenses in this case the plea of insanity. When that defense is interposed the burden of proof is upon the defendant to introduce sufficient evidence to raise in your minds a reasonable doubt of his sanity at the time of the alleged offense; and if from all the evidence in the case there is a reasonable doubt in your minds as to the sanity of the defendant at. the time it is charged that he committed the offense, you will return a verdict of not guilty” — is unfair to the accused, in that it fails to say that if he meets the burden of introducing sufficient proof to raise a reasonable doubt as to his sanity, the law imposes on the state the burden of establishing the sanity of the accused, the same as any other material fact, to warrant a conviction. The law requires the state in this class ot-eases, if sufficient proof has been introduced to raise a reasonable doubt as to the insanity of the accused, to meet that issue by introducing sufficient competent proof to establish the sanity of the accused beyond a reasonable doubt.
    , 3. APPEAL AND ERROR — Instructions—Harmless Error. When a person is tried upon a criminal charge, interposes a plea of insanity as a defense, and fails to introduce competent proof suf- ■' ficient to establish the issue or raise a reasonable doubt thereof, the giving of an instruction which would have been prejudicial if the issue had been properly raised becomes harmless.

      Appeal from District Court, Le Flore County; W. H. Brown, Judge.

    George Snodgrass was convicted of murder, and appeals.
    Affirmed.

      S. A. Neely and Lunsford & Bulgin, for plaintiff in error.

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

The plaintiff in error, George Snodgrass, was convicted in the district court of Le Flore county at the April, 1914, term on a charge of murder, and his punishment fixed at imprisonment in the state penitentiary for life.

The information charges that the plaintiff in error murdered H. L. McCabe on January 20, 1914, in Le Fiore county. The proof discloses that the homicide occurred in the town of Spiro on the morning of January 20, 1914; that McCabe was a middle-aged blacksmith, living in said town, and Snodgrass a barber, about 70 years of age; that the parties lived on adjoining lots; that there had been ill feeling existing between them for some months; that the deceased had been annoying the Snodgrass family in an effort to force them to sell their property to him at a sacrifice and move away. Snodgrass had made frequent complaints to his friends and neighbors about the imposition of McCabe upon him and his family. A number of these neighbors testified as witnesses at the trial to the effect that on this subject of imposition and abuse offered toward his family and the indignities heaped upon them they believed that the plaintiff in error was insane. On the morning of the homicide, Mrs. Snodgrass, who, according to the testimony of the case, had tried to keep down trouble between the" deceased and the plaintiff in error, told her husband, the plaintiff in error, about a number of indignities McCabe had perpetrated against her a short time prior thereto, and urged him to sell their property and move away from the neighborhood. Among other things, she told him of numerous occasions upon which the deceased had used vile and abusive language toward her, and on the day before had exposed his sexual organs before her and asked if she did not want them used upon her. Upon the conclusion of the story told by Mrs. Snodgrass, the plaintiff in error, without eating his breakfast, went immediately down town to his barber shop. Shortly after his arrival there McCabe passed by, made some demonstration of hostilities, and called the plaintiff in error a damned old son of a bitch.

The plaintiff in error reached inside the barber shop and secured a shotgun and shot McCabe. He fell to the ground, and after he had fallen the plaintiff in error walked up to him and shot him again, walked around the body a time or two, and struck the head of the deceased with the gun barrel repeatedly. On the day before the homicide the gun used in perpetrating the killing was repaired by a local gunsmith and carried' to the barber shop by the plaintiff in error and there left by him. The state contended at the trial that the gun was repaired at the instance of the plaintiff in error and placed in his barber shop to be used for the purpose of killing McCabe. The plaintiff in error contended that this was not the case, but that he had the gun repaired to shoot some rabbits on a little place he owned near town, and he had left the gun at the barber shop so it would be convenient to use in hunting the rabbits.

The defense interposed was that of insanity. A large number of witnesses were introduced who testified that they believed the plaintiff in error was insane. The testimony offered on behalf of the state tended to establish the fact that the plaintiff in error was not insane, and that the homicide was perpetrated by him with the premeditated design to effect the death of the deceased.

The jury found the plaintiff in error guilty as charged, and fixed his punishment at life imprisonment in the state penitentiary. This court will not undertake to discuss the verdict of the jury, although a different conclusion could have been reached, and would have been warranted, unless there is error of law. The record, therefore, has been carefully examined, with the view of determining whether or not there is prejudicial error of law disclosed.

(1) From this examination we find but one proposition for discussion — that is based upon the contention that the court erred in refusing to instruct the jury that under the law the burden was on the defendant to introduce only sufficient evidence upon the proposition of insanity to raise a reasonable doubt in the minds of the jury as to his sanity, and, when, this was done, the burden was upon the state to prove beyond a reasonable doubt that the defendant was sane and capable of distinguishing right from wrong or of understanding the wrongfulneps of the act at the time the homicide was committed.

The court instructed the jury, in lieu of the request, as follows:

“You are instructed that the defendant has interposed as one of his defenses in this case the plea of insanity. When that defense is interposed the burden of proof is upon the defendant to introduce sufficient evidence to raise in your minds a reasonable douhf of his sanity at the time of the alleged offense; and if, from all the evidence in the case, there is a reasonable doubt in your minds as to the sanity of the defendant at the time it is charged that he committed the offense, you will return a verdict of not guilty.”
“The test, within the meaning of the law, as to whether a man is /sane or insane, (1) the mental capacity to distinguish between right and wrong as applied to the particular act, or (2) knowing the wrongfulness of an act, the defendant is not criminally responsible if by reason of insanity he did not have the will and mental power to refrain from committing such an act.”

These are the only instructions given on this issue. Counsel excepted to the first instruction upon the ground that—

“it does not cover fully the law relative to the burden in insanity cases, in that it should state that whenever the defendant introduces sufficient evidence to raise a resisoriable doubt as to the defendant’s sanity, then it devolves upon the state to show beyond a reasonable doubt that the person charged with a crime is sane.”

It is argued that the giving of the instruction complained of, and the refusal to give the requested instruction, was prejudicial error, and that on this ground the judgment of conviction should be reversed.

There is no doubt but that the court should have followed the rule laid down in Adair v. State, 6 Okla. Cr. 284, 118 Pac. 416, 44 L. R. A. (N. S.) 119, wherein it is said:

“Sanity being the normal and usual condition of mankind, the law presumes that every person is sane; hence the state in a criminal prosecution may rely upon such presumption without proof relative thereto. But, when the defendant in a homicide case produces sufficient evidence to raise a reasonable doubt of his sanity, the law then imposes on the state the burden of establishing the sanity of the defendant, the same as any other material fact necessary to warrant a conviction; .and if, upon consideration of all the evidence in the case, the jury have a reasonable doubt that the defendant' at the time of. the commission of the act charged was mentally competent to distinguish between right arid wrong, or to understand the nature of the act he was committing, he must be acquitted.”

The instruction given should have contained a clause stating the rule in this manner, in order that absolute fairness might prevail, and the accused might have full and impartial consideration at the hands of the jury of all the facts, provided he met the burden by offering-competent proof to the extent of raising a reasonable doubt as to his sanity.

(2) The latter instruction given to. the jury, however, is more than fair to the plaintiff in error — it gave him the benefit' of the irresistible impulse doctrine, which is not a defense under the law of this state. We are therefore of the opinion that, although the instructions did not as fully cover the principle of law involved as they should have covered it, yet, upon the whole, the instructions are more favorable than the plaintiff in error was entitled to receive. This being the case, this court would not be warranted in reversing the judgment.

The experts who testified in this case on behalf of the plaintiff in error, in answer to lengthy hypothetical questions covering the facts disclosed by the record, answered that the defendant was either angry or insane. If medical experts and students of insanity who have had experience in handling patients afflicted with insanity — and these physicians testified that they had had such experience— were not able to say that a person on these facts and for whom they were testifying was insane, it would hardly be reasonable to expect a jury of laymen to so conclude. A number of laymen who were intimately associated with-the parties involved in this case, and who were close neighbors to them, testified to many facts which indicated that' the plaintiff in error was insane, and other neighbors., who were also closely associated with both the deceased and the plaintiff in error, testified to the contrary.

The writer of this opinion has read this record many times, and has very reluctantly reached the conclusion that this judgment should be affirmed on account of all the disclosures contained therein, but under the doctrine laid down in many,cases, that issues of fact are for the jury, and, in the absence of prejudicial error of law, the judgment will not be reversed, has finally concluded that the judgment should be affirmed. This court was not constituted to extend clemency, but to administer the law fairly and impartially, under the Constitution and the statutes, of this state. After careful consideration of all the testimony offered by both sides, we conclude that the burden placed on the plaintiff in error to offer testimony sufficient to raise a reasonable doubt as to his sanity was. not overcome. The jury was therefore entitled, under all the evidence, to conclude that he was guilty of murder as charged.

The judgment is affirmed.

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


author: DOYLE, P. * J.

text:
    BOB LEBRECHT v. STATE.
    No. A-2960.
    Opinion Filed September 12, 1918.
    Rehearing Denied October 12, 1918.
    (175 Pac. 119.)
    APPEAL AND ERROR — Harmless Error — Instructions. The letter and spii'it of the law is that if the defendant has had a fair trial, and if this court is satisfied that the verdict against the defendant was not reached by error, or as the result of passion or prejudice, the conviction should be affirmed. In this case erroneous instructions were harmless, for the reason that the defendant by his testimony admitted the facts necessary to a conviction.

      Appeal from County Court, Cotton County; J. C. Nprman, Judge.

    Bob Lebrecht was convicted of a violation of the prohibitory law, and appeals.
    Affirmed.

      John M. Young and B. M. Parmenter, for plaintiff in error..
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. * J.

The plaintiff in error was convicted in the county court of Cotton county on an information charging that in said county on the 4th day of January, 1917, he did then and there willfully and unlawfully transport and convey 96 quarts of whisky and one quart of apricot brandy from the north end of the Burkburnett bridge across the Red river to a point one mile northeast of said bridge in Cotton county. His punishment was fixed at 30 days’ imprisonment in the county jail and a fine of $200. From the judgment rendered in pursuance of the verdict an appeal was perfected by filing in this court on March 17, 1917, a petition in error with case-made.

The evidence shows that the defendant, Lebrecht,- was riding in an automobile driven by another man; that they crossed from Texas on said bridge; and were stopped by the officers about a mile and a-half northeast of the bridge; that the automobile' had the side curtains up and was loaded with 96 quarts of whisky in sacks and one quart of brandy. The defendant was partly intoxicated. He claimed the whisky in the car belonged to him and that he was taking it to Lawton for his personal use. As a defense the defendant placed his previous good character in evidence, and considerable testimony was giten tending to support it. As a witness in his own behalf the defendant testified that he had lived at Lawton for 15 years and was connected with Lebrecht Hide Company; that his wife lived at Wichita Falls; that he frequently made trips to Wichita Falls to see his wife and get whisky for his own use, and sometimes he would bring back two or three cases of whis-ky ; that Tucker, the driver, was hired by him to drive the car; that he never sold any whisky, and on this occasion he thought he would buy a load of it; that the automobile was stopped by some planks sticking up in a culvert;.that he was taking the whisky to Lawton for his own personal use. Other testimony was offered tending to show that the defendant was a habitual user of whisky, and consumed on an average of two quarts a day.

The contention of counsel for the defendant upon the trial and in this court is that the transportation was interstate transportation of intoxicating liquors, that had been lawfully purchased in the state of Texas and was being transported by the defendant ,to his home at Lawton, Okla., for his individual and private use, and for this reason the evidence is insufficient to sustain the'verdict. The other alleged errors relate to the refusal of the court to give to the jury certain requested instructions and to the giving of certain instructions over the objection of the defendant. Upon an examination of the record we are of opinion that the defendant by his testimony admitted the facts necessary to a conviction and for this reason he could not be prejudiced by the instructions complained of.

On the undisputed facts as shown by the evidence we do not deem it necessary to consider the technical questions presented in plaintiff in error’s brief. It is sufficient to say that the plain purpose, intent, and object of the prohibition ordinance of the Constitution, and the laws enacted to effectuate the provisions thereof, is to prevent the use of intoxicating liquors as a beverage. It follows that the evidence in the case tending to show the defendant’s abnormal capacity to consume whisky was incompetent and irrelevant to any material issue in the case. This court has uniformly held that where the case is entirely made out against the defendant, and the jury has so found, the judgment will not be reversed for errors which do not affect the substantial merits of the case, Upon the undisputed facts and .the law as we understand it, the defendant was rightfully and legally convicted.

The judgment of the county court of Cotton county herein is therefore affirmed.

ARMSTRONG and MATSON, JJ., concur.


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    WALLACE DAGGS v. STATE.
    No. A-2165.
    Opinion Filed October 12, 1918.
    (175 Pac. 374.)
    MAYHEM — Sufficiency of Evidence. In a prosecution for maiming, tlie evidence examined, and held sufficient to sustain tlie verdict, and that no reversible error was committed on the trial.

      Appeal from District Court, Pontotoc County; Thos. D. McKeown, Judge.

    Wallace Daggs was convicted of mayhem, and he appeals.
    Affirmed.

      Cmtoford & Bolen, for plaintiff in error.
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Wallace Daggs, Walter Winters, Arch Keahey, and Roy Buster, were, by information filed in the district court of Pontotoó county, jointly charged with maiming, in that they did unlawfully, willfully, and feloniously make an assault upon and did castrate one Thomas Hurst. The defendants demanded a severance, and upon his separate trial the plaintiff in error, Daggs, was convicted and his punishment fixed at imprisonment for one year and one day in the penitentiary. From the judgment rendered on the verdict, he appeals.

■ The motion for new trial was based on the grounds that the verdict of guilty is not sustained by sufficient evidence, and is. contrary to law, and alleged misconduct of the county attorney in asking prejudicial questions, and in making prejudicial remarks in his argument to the jury.

The evidence on the part of the state shows or tends to show that Hurst, the complaining witness, left, the home of Drain Norton, in Ada, about 1 o’clock p. m. on December 22d, the date alleged in the information. About 5 o’clock that evening he returned and told Norton that he cut himself going through a barb wire fence. Norton had a neighbor call a doctor, and when he examined the complaining witness he found that his left testicle had been cut out, and he called another doctor to assist in dressing the wound. The complaining witness testified: That he was crossing the defendant Daggs’ pasture near Ada that afternoon and met the four defendants there together. That they assaulted him, and he was knocked insensible by a stroke on the back of the head, and when he came to he found that one of his testicles had been cut out. It was lying on the ground near him. ' That he crawled to some water close by and revived himself enough to travel, and then returned to the home of Drain Norton., That he told Norton that the cut was from a barb wire fence at that time because he expected to revenge himself. That one Dick Bond visited him and talked to him several times and advised him to leave. That in February he went with Bond to the office of the defendánt’s attorney and there received $200 and signed some papers by making his mark. That he understood that he had to leave the country when he took the money. That evening Bond went with him to the railroad depot, and Wallace Daggs was there and talked to him. That he was afraid that the defendant would do him harm and took the train and went to Texas, where he was arrested and brought back.

Three or four witnesses testified that they saw the defendants together about 4 o’clock that afternoon in defendant Daggs’ pasture near Ada, and they seemed to be wiping their hands, and that they were apparently drinking, and one of the defendants was waving a bottle.

For the defense the defendant introduced the following instrument:

“Ada, Okla., 2-14-1913.
“Wallace Daggs and the other parties accused of cutting me should not be prosecuted or punished, there is nothing to it.
“Tom X Hurst.
mark
“Witness to mark: Thomas E. Davenport.
“Subscribed and sworn to before me this Feb. 14th, 1913.
“[Seal.] L. A. Braly, Notary Public.
“My Com. ex. on the Yth day of Sept., 1916.”

Two of the defendants testified that they were with the defendant Daggs at his place that afternoon; that they did not see the complaining witness. Charley Daggs, a jail guard and a cousin of the defendant, and J. E. Winn, serving a term for selling whisky, testified that while the complaining witness was in jail he said his trouble was caused by a woman.

Several character witnesses testified to the’ previous good character of the defendant as being a peaceable and law-abiding citizen. The defendant did not testify.

Counsel for the defendant contend that the verdict is not sustained by sufficient evidence, because the complaining witness made contradictory statements and no motive is shown.

Upon a careful consideration of the record, we are of opinion that the verdict was entirely justified by the facts proved, and any other verdict than the one returned would have been against the weight of the evidence. The jury had the witnesses before them and could see their manner of testifying', and they, no doubt, in determining the truth took into consideration all the attending circumstances of the cáse. The record fails to sustain the alleged misconduct of the county attorney.

The motion for new trial on the ground of newly discovered evidence was properly overruled.

This disposes of all the alleged errors presented in the record. Upon the whole case we find that the defendant has had a fair and impartial trial, and has been legally convicted. The judgment of the district court of Pontotoc county is therefore affirmed.

ARMSTRONG and MATSON, JJ., concur.


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    W. F. LLOYD v. STATE.
    No. A-2477.
    Opinion Filed October 12, 1918.
    (175 Pac. 374.)
    1. APPEAL AND ERROR — Errors. This court will review the record on appeal only as to errors properly preserved as provided by the statutes, or those which are reasonably calculated to deprive the accused of a substantial right, or such as may result in depriving him of a fair and impartial trial.

      2. ASSAULT AND BATTERY — Indictment and Information — Assault with Dangerous Weapon — Conviction—Charge of Court. In a prosecution for assault with a sharp or dangerous weapon with intent to do bodily harm, the jury may find the defendant guilty of any offense the commission of which is necessarily included in that with which the defendant is charged in the information, and it is the duty of the court to submit to the jury instruction upon ('very degree of assault which the evidence, in any reasonable view of it, suggests.

      Appeal from District Court, Kiowa County; James R. Tolbert, Judge.

      W. F. Lloyd was convicted of assault, and he appeals.
    Reversed.

      O. J. Logan, for plaintiff in error.

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

The plaintiff in error, W." F. Lloyd, was convicted at the December, 1915, term of the district court of Kiowa county, on a charge of assault with a sharp and dangerous weapon with - intent to do bodily harm, and his punishment fixed at 18 months’ imprisonment in the state penitentiary.

The information charged W. F. Lloyd jointly with three' of his sons with assaulting Luther Bryan with a knife on the 21st day of July, 1914. The evidence disclosed the fact that there had been ill feeling between the Bryan and Lloyd families for some time. On a former occasion there had been a fight in which W. F. Lloyd was injured somewhat. On the day this offense is alleged to have been committed all of the parties attended a Sunday school, held at a neighborhood schoolhouse-. After the, services had closed, one of the Lloyd boys asked Luther Bryan to come outside of the building, saying that he wanted -to talk to him. They went out and had some conversation, and a fight ensued between the two. Another one of the Bryans joined jin the fight, and one of the Lloyd boys came in also. Another one walked up to where the fight was in progress, and was standing with his song book under his arm looking on. Luther Bryan and one of the Lloyds were on the ground. The Bryan boy, apparently getting the best' of the scrap, broke away from the fight, got up and seized a piece of plank three or four feet long, about one inch thick and three or four feet wide, and struck the nonoffending Lloyd boy, who was standing by looking on the proceedings, on the head, and knocked him senseless. He fell as though he was killed. W. F. Lloyd, the father of the injured boy and of the other Lloyd boys, came on the scene about this time. Bryan ran, and W. F. Lloyd pursued him with an open knife. At the same time he called to one of his other sons to catch Bryan and kill him, saying that he had just killed his brother. After chasing Bryan some distance, W. F. Lloyd came close'enough to, and did, inflict a flesh wound on Bryan’s arm with a knife. The Bryans left the grounds and went to their home, and neither of the Bryans was arrested, and no effort was made to prosecute them at all. The Lloyds went home and were later arrested and brought to trial.

All the testimony in the record has been carefully considered, as well as the instructions of the court. There were no exceptions taken to any rulings of the court, and no exceptions taken to any of the instructions given. This case was apparently tried by an inexperienced attorney, who had no idea that an appeal required the preservation of a record. The record discloses the fact that a motion for continuance was. filed before the trial was begun, but was not properly presented to the court for action, and no exceptions taken to the action, or failure to' properly act, on it by the court. The same condition of the record appears • in connection with the motion for a new trial, based on the ground of newly discovered evidence. -In our judgment, it would be a miscarriage of justice to affirm the judgment as rendered. There was no felonious assault committed under the proof. The plaintiff in error should not have been punished for more than simple assault and battery, which was included in the offense charged in the information. This issue, however, was. not submitted by the court, nor was any request made by counsel that it be so submitted, and his failure so to do was prejudicial error, sufficient to- entitle the plaintiff in error to a new trial. The judgment will therefore be reversed, and a new trial ordered.

Counsel who briefed this case did not appear .in the trial court, and they recognize in the brief submitted that their record was not properly preserved for the presentation of the appeal.

Reversed.

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


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    JOE COX v. STATE.
    No. A-2824.
    Opinion Filed October 14, 1918.
    (175 Pac. 264.)
    J. TRIAL — 'Demurrer to Evidence. A demurrer to the evidence is properly overruled, when there is competent evidence from which a deduction of guilt can be reasonably drawn.
    2. LARCENY — Proof—Possession of Stolen Property. Proof of the possession of stolen property is alone not sufficient to warrant conviction, but where there is other proof supporting the inference sufficient to warrant submission of the issue to the jury, this court will not disturb their findings thereon.
    3. TRIAL — Private Prosecuting Attorney. The assistance of private counsel in the trial of a criminal cause in this jurisdiction is not prohibited by law, and when the county attorney in the county 'in which the cause is pending institutes the proceeding and controls the trial of the ease, there is no error in permitting other counsel to appear, examine the witnesses, or assist in any other manner in a due and orderly conduct of the trial.
    4. APPEAL AND ERROR — Reversal—Instruction. A reversal of a judgment of conviction will not be granted in this court on the ground that an instruction in the following language: “When the fact of tlie theft lias been shown, and the question is whether or not the defendant committed it, his possession of the stolen property at a time not too long after the stealing is a circumstance for the .-jury to consider and weigh in connection with all the other evidence, acts, and circumstances in the case. Its significance will vary with its special facts and with the other facts of the case, among which are the nearness or remoteness of the proven possession of the larceny, the nature of the property as passing readily from hand to hand or not, together with such other facts and circumstances as would reasonably influence the opinion of the jurors as to the guilt or innocence of the defendant” — does not have coupled with it a specific instruction to the effect that the possession of the stolen property alone would not warrant a conviction.

      5. SAME — Evidence—Sufficiency. When there is competent proof offered tending to establish the fact that the property alleged to have been stolen in a grand larceny case exceeded $20.00 in value, tiiis court will not disturb the findings of the jury on that ground, although a different conclusion could also have been reached.

      Appeal from District Court, Washita County; Thomas A. Edwards, Judge.

    Joe Cox was convicted of grand larceny, and he appeals.
    Affirmed.

      Richard A. Billups, for plaintiff in error.

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

The plaintiff in error,- Joe Cox, was convicted in the district court of Washita county at the July, 1915, term, on a charge of grand larceny, and his punishment fixed at imprisonment in the state penitentiary for a term of-three years. The information charges the plaintiff in error with larceny of merchandise from the Foss Mercantile Company, in Washita county, on or about the 20th day of April, 1915. The value of the articles mentioned in the information is stated at $47.45. The proof discloses the fact that the store building containing general merchandise belonging to the Foss Mercantile Company was burglarized on the 20th day of April, 1915, and a large quantity of dry goods and clothing stolen therefrom. Many of these 'articles were recovered from a store operated by John A. Green, at Duke, Okla.

It is contended by the state that the plaintiff in error stole the property from the Foss Mercantile Company, and took it to Duke, and there sold it to Mr. Green, or delivered it to him to be by him sold. Quite a quantity of the merchandise was on the counters and on the shelves in Green’s store at the time it was recovered. Other items were in a trunk left at Green’s store by the plaintiff in error, according to the contention of the state. John Green, the owner of the store from which the merchandise was recovered, and an employee by the name of Hunter, testified at the trial on behalf of the state, but did not make satisfactory witnesses according to the argument of the Attorney General, and a review of their examination supports this contention.

The first proposition urged by counsel in their brief as ground for reversal of this judgment is based on the contention that the court erred in overruling the demurrer to the evidence. The demurrer is as follows:

“Comes now the defendant and demurs to the evidence as wholly insufficient to sustain the allegation of the state set forth in the information, and the further objection that there is a fatal variance between the ownership as alleged in the information and the ownership as proven or attempted to be established in the case, and a total failure of proof and no proof of any kind connecting this defendant with the commission of this offense.”

A review of the record fails to support this contention. There is no doubt but that the larceny was committed and the merchandise delivered to Green’s store, and there is ample proof in the record from which the jury could legitimately conclude that the plaintiff in error was the guilty party. The testimony warrants the conclusion of the jury that the property was stolen in the manner and form as charged in the information. There is no vital variance between the proof and the allegations in the information.

Counsel argues the credibility of the witnesses and the weight of the testimony at length in the brief. Examination of the records discloses no reason why this court should set its judgment against that of the jury. In fact, we are inclined to the view that the jury reached a correct conclusion. Counsel also argues that this conviction should be reversed, under the rule laid down in the case of Blair v. Territory, 15 Okla. 549, 82 Pac. 653; but this case does not come within the doctrine there declared, to the effect that proof of the possession of stolen property alone is not sufficient to sustain a conviction. There is ample proof in this record, in addition to the possession of the stolen goods, which clearly points to the guilt of the accused, and from which a proper inference of guilt could be drawn.

The next proposition discussed is based upon the contention that the court erred in permitting the county attorney of Custer county, over the objection of the plaintiff in error, to conduct the trial of the accused. At the time this objection was made the court overruled the same and made the following statement, which is included in the record:

“The court observes that the county attorney of this county (Washita county) remains in charge of the cause, and that the county attorney of Custer county is merely examining the witnesses.”

The record fails to disclose that the county attorney of Custer county examined more than one or two witnesses. The ruling of the trial court was proper, and the conduct of the trial. in this respect legal and regular. The objections and exceptions are wholly without merit. The contrary doctrine was laid down in Reed v. State, 2 Okla. Cr. 589, 103 Pac. 1042, and has been uniformly followed by this court.

Counsel also argues that the examination conducted was unfair and prejudicial, and sufficient to entitle him to reversal of this judgment, under the doctrine laid down in Rogers v. State, 8 Okla. Cr. 226, 127 Pac. 365. The parallel between the examination that is disclosed by the two records is not apparent. In the case under consideration there is no indication of a desire upon the part of the prosecution to-be unfair or unjust to the witnesses, but rather an indication on the part of the witnesses to evade the truth and avoid disclosing criminating facts. The objection presented by the record in the Rogers Case and in this case are not identical in any way. The examination of the witnesses was entirely proper under all the circumstances, and no,more vigorous than warranted.

The next proposition urged is based upon the contention that the court erred in giving the following instruction :

“When the fact of the theft has been shown, and the question is whether or not the defendant committed it, his possession of the stolen property at a time not too long after the stealing is a circumstance for the jury to consider and weigh in connection with all the other evidence, acts and circumstances in the case. Its significance will vary with its special facts, and with the other facts of the case, among which are the nearness or remoteness of the proven possession of the larceny, the nature of the property as passing readily from hand to hand or not, together with such other facts and circumstances as would reasonably influence the opinion of the jurors as to the guilt or innocence of the defendant.”

The objection to this instruction is without merit. The court in the charge covered all of the issues fairly and impartially, and there was nothing prejudicial in the instruction complained of, considered together with all other instructions given.

The next proposition urged is based upon the contention that the testimony failed to establish the value of the property alleged to have been stolen at more than $20. In this connection it is argued that the state should have established that all the merchandise was taken at one time and exceeded $20 in value. Counsel rely on Camp v. State, 1 Okla. Cr. 531, 124 Pac. 331, wherein it is said in the syllabus:

“In a trial for grand larceny, where the offense was not committed by taking property from the person of another; the evidence must establish beyond a reasonable doubt that the value of the property taken exceeded $20.
“Where property was taken on a number of different occasions, each separate. taking constituted a separate and distinct offense, and a person cannot be convicted of grand larceny upon proof that the entire property taken on such different occasions exceeded $20 in value.”

There is ample testimony in this record to establish 'the value of the property taken, and to warrant the jury in concluding it was all taken at one time and by the same party. We do not feel called upon to disturb the findings of the jury in this connection.

Finding no error sufficient to warrant a reversal of the judgment, it is in all things affirmed.

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