text:
    A. G. GOODNIGHT v. STATE.
    No. A-9187.
    Sept. 17, 1937.
    (71 Pac. 2d 789.)
    O. A. Brewer, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was charged with the larceny of domestic fowls, one turkey gobbler; was tried, convicted, and sentenced to serve a year in the state penitentiary, and has appealed to this court.

The testimony on behalf of the state in substance is that Mrs. Mary Sons, who lived southeast of Boswell, Okla., was the owner of some turkeys. She was working] in town and left her property, including her turkeys, in charge of Fred Karkkendall at her home place. Among the turkeys was a mammoth bronze gobbler; this gobbler was missed from her flock of turkeys by Mr. Karkkendall. “I saw the turkey when Mr. Karkkendall brought it in after he recovered it. I had my turkeys marked with a punch in the web of the foot the 4th or 5th of March, 1935.»

L. O. Smith stated he lived at Boswell on or about the 5th of October, 1935; that he knew A. G. Goodnight, saw him on that date. Witness stated Goodnight came to his place about 9 o’clock at night and wanted him to take the defendant and two others home; Goodnight lived seven or eight miles in the country; that he paid him by giving him a turkey for hauling him out home in his car. When, he brought the turkey home he clipped its wings to keep it from flying out of the yard and turned it loose. Witness further stated:

“About three days after I got the turkey Mr. Kark-kendall came to my house; my wife told him I had traded for or bought a turkey; I came in about four o’clock that afternoon and met Mr. Karkkendall and he asked me about the turkey and I told him I got it from the defendant and to go ahead and get it if it was his turkey. I drove the parties out in the country and we stopped at the house and Mr. Goodnight got the turkey. I thought he lived there, but later learned Mr. Karkkendall lived there. We drove up to this place and the defendant got out of the car and told me he would get the turkey, and went in and got it. We met Lester McGeary on the road; Oster Bob was with us.”

Mrs. Mary Sons, recalled for further examination, stated, in the summer before she went to town she traded one turkey hen with the father of the defendant Goodnight for another turkey hen; that he took the turkey home and if it ever came back to her house she never knew anything about it; when the turkey hen was presented to the witness Mrs. Sons, she stated positively that it was not her turkey hen; she did not look like an old hen; her tur-. key had a punch in the foot and she did not see any punch in the foot of this turkey hen.

The defendant, testifying in his own behalf; stated ■Mrs. Sons and his father had swapped turkey hens, and! his father brought his turkey hen down home and she ran off and went back; they tried to get her several times but could not; he traded this turkey hen to Booster Smith to take them out home; that he bought this turkey hen for 50 cents; and that he went up to the Karkkendall place and got the hen.

On cross-examination witness stated he knew nothing; about the turkey at Mr. Crowder’s place:

“When I hired Mr. Smith to take me home I told him I would buy him some gas and he said all right, I don’t know how much he was going to charge, he said he would make it light; we bought some gas and I think some oil, I would not be positive; I told him I would pay him in a turkey, and let the others pay me and he said ‘All right; I have to buy meat anyway’; we went to my house first; in order to get to' my house you have to pass Mrs. Sons;' we did not stop on the way down there; I live about a half mile from Mrs. Sons’ place where Mr. Kark-kendall lives; after we got home I got in the car and went back to Mrs. Sons’ place; the turkeys were on the roost, a whole bunch of them, I got Mr. Smith a turkey. I had not. ■been drinking very much that night.”

The foregoing is in substance the testimony.

The defendant has assigned six errors alleged to have been committed by the trial court. The fifth error assigned by the defendant is: “Error of the court in overruling defendant’s motion for a new trial.”

All of the other assignments are embraced in this assignment. There is no controversy between the evidence of the state and the defendant as to the fact that the defendant had the witness L. O. Smith drive the defendant and other parties out in the country to defendant’s home; that the defendant had the witness Smith drive back from his home to the home of Mrs. Mary Sons; at the time of the tailing of this turkey this home was occupied by Fred Karkkendall; and that the defendant went into where Mrs. Sons’ turkeys were roosting and got this gobbler and delivered it to the witness L. O. Smith.

The defendant in his defense says that some time the previous summer Mrs. 'Sons and his father had traded turkey hens, and that the turkey hen his father got from Mrs. Sons had gone back to her place; that he bought this hen from his father; and that he stopped there the night of the taking of this turkey hen and went to the turkey roost and got this gobbler. The jury evidently did not believe the testimony of the defendant. If, as stated by the defendant, he bought this turkey hen from his father and this hen had gone back to the Sons place, that would not be a defense to the charge in this case, for the reason that the turkey the defendant took from the roost and turned over to the witness Smith was a gobbler. His statement that he went to the Sons home and took this gobbler is practically a confession of guilt. Any one familiar with a flock of turkeys can readily detect a gobbler from a hen.

There is very little conflict in the testimony in this case, and this court has repeatedly held that, before a conviction will be reversed as contrary to the evidence, it must appear that there is no testimony in the record from which the jury could rationally conclude the defendant was guilty, unlessi it appears that the jury was influenced by improper motives. Wininger v. State, 55 Okla. Cr. 78, 24 Pac. (2d) 664.

Where the evidence and reasonable and logical inferences to be drawn from it are sufficient to convince the jury beyond a reasonable doubt of the guilt of the defendant, this court will not disturb tbe verdict for insufficiency. Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352; Clemmer v. State, 56 Okla. Cr. 354, 40 Pac. (2d) 37.

There is no evidence in the record showing the jury was biased or prejudiced against this defendant, and the evidence is amply sufficient to sustain the verdict. The motion of the defendant for a new trial was properly overruled. He was accorded a fair and impartial trial. The instructions of the court correctly advised the jury as to the law to guide them in their deliberations upon the facts introduced in evidence. No errors appear in the record warranting this court to set aside the verdict of the jury and grant the defendant a new trial.

The judgment of the trial court is affirmed.

DOYLE and BAREFOOT, JJ., concur.


source: Caselaw Access Project

author: DAVENPORT, P. J.

license: Public Domain

text:
    JIM JOHNSON v. STATE.
    No. A-9219.
    Sept. 17, 1937.
    (71 Pac. 2d 786.)

      S. R. Harper, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

Jim Johnson, the plaintiff in error, the defendant in the trial court, was by information charged with the larceny of one bay mare and one black horse, the property of M. P. Witcher. The larceny is alleged to have taken place on the 27th day of June, 1934, in Garvin county. Defendant was tried, convicted, and sentenced to serve a term of five years in the state penitentiary, at McAlester. The record was properly saved, and the defendant by petition in error with case-made attached has appealed.

M. P. Witcher, testifying on behalf of the state, stated he lives about two and three-fourth miles north of Pemell, in Garvin county, Okla.; that he owned several head of stock; that on the 27th day of June, 1934, a mare and two year old colt disappeared from his pasture:

“I tracked her north of farmer Bailey’s and lost her trail. The next morning I struck her tracks again where she had been carried through the gate in the old Prince field north of Bailey’s; she had been fresh shod and I could see her tracks right in the gate where she went through. I kept looking for the mare and colt but could not find them. I had a talk with the defendant about the mare and colt being missing, and stated if they would ■put my stuff back on the ground floor I would quit but if they didn’t I was going the limit, and he said he would try to put her back; later on I saw him in Lawton and he wanted to settle with me and pay me off; he did not make any particular offer as to the amount he was willing to pay, just wanted to pay me off and quit. This was before I had sworn out the warrant.”

The defendant in the conversation did not say he had taken the mare but he would try to get her back.

“I discussed with him the question that I had information he had taken the mare and colt. At the time the mare and colt were taken Jim Johnson lived right north of Ernest Bowman’s place, in Garvin county, Oklahoma, After I had sworn out the warrant he sent word to me and I met him in Duncan, and he wanted to settle with me and me quit the prosecution for the horses it was alleged he had stolen; John Winters brought the word to me to meet defendant in Duncan, and I met him at the court house. I told him I could not afford to take pay from him after I had started the prosecution. I do not know who took the mare out of the pasture but some one was bound to have done so because she went out through the field gate. I live better than two miles from Jim Johnson. I cannot tell you how long he had been there at the time the horses were taken; I gave no one any authority to take the mare and colt out of the pasture, they were taken without my knowledge or consent and against my will.”

Ernest Bowman, testifying on behalf of the state, stated:

“I live at Foster, Oklahoma; have known the defendant Jim Johnson for 13 years; I remember the occasion of June 27, 1934, on which Mr. Witcher lost some stock.”

At this point the witness stated:

“I will ask the request for my constitutional rights. Q. You don’t mean to answer then? The Court: Does it incriminate you if you answer the question? That is what I mean? A. Yes, sir: if I told you what I know about the case. Shall I tell? Mr. Bowie: Yes, sir, I would like for you to. The Court: Well, sustained, if he makes the demand. Mr. Bowie: Well, do you answer or insist on your constitutional rights? The Court: I don’t think you can. Mr. Harper: I don’t think you can inquire into that. Mr. Bowie: The only thing you want is immunity? A. I do. The Court: Now, just the immunity that you don’t prosecute against him? You offer that immunity? Mr. Bowie: I do., The Court: All right. Mr. Harper: We except to the ruling of the court.”

The witness then stated:

“Joe Bailey and Jim Johnson brought this mare and colt to my house; they said it was Mr. Witcher’s mare and colt. They woke me up between nine and ten o’clock at night and asked me to rope the colt for them; there was no one at the house except myself, wife and babies; I knew the Witcher mare but that was the first time I had seen the colt. After I roped the colt the defendant Johnson decided he could not haul both of them and wanted me to ride the mare toward Marlow and he would come back and meet me. He was supposed to give me $5.00 for making the trip but he did not pay me anything. When he met me he loaded the mare, and we drove on two or three miles and he told me I would have to be 'good, it was two against one. The two he referred to was he and Joe Bailey. Joe Bailey died since that time, I) don’t know the date, he was killed in the south side of this county by the officers.”

On cross-examination witness stated he lived in Gar-vin county; that the defendant and Joe Bailey came to his house with the mare and colt:

“At the time the mare and colt was taken I guess I lived about a quarter of a mile from Jim Johnson. I had gone to bed, Joe Bailey woke me up; they led the mare out in front of the yard and tied her something like fifteen steps from the porch of my house. The defendant stated he had traded for the mare and colt off of Joe Bailey. I roped the colt, and defendant decided he couldi not haul both of them and wanted me to ride the mare and he would come back and meet me; when he overtook me he said ‘This is a good place to catch a car’; after we loaded up he told me the mare and colt were stolen and I would have to be good. I have served a term in the penitentiary; was released the 13'th day of November; I do not want to go back to the penitentiary. The reason I went the first time was on account of Jim Johnson; he talked me into the notion of stealing some mortgaged property.”

Myrtle Bowman, the wife of Ernest Bowman, stated1 she was 28 years of age and lived three miles east of Foster:

“I know the defendant Jim Johnson; on the 27th day of June, 1934, Jim Johnson and Joe Bailey came over to our house; they said they had a mare and colt, said it was Witcher’s; they wanted my husband to rope the colt, and he roped the colt for them; after he roped the colt they decided they could not carry both in the car and wanted my husband to ride the mare off; he did; I think it was some time between nine and ten o’clock at night; Mr. Johnson said he would give my husband $5.00 to ride the mare.”

On cross-examination witness said they had been asleep when Johnson and Bailey came:

“I did not get up; they led them up close to the yard gate; I could not swear what color the mare and colt was, just heard them say it was a mare and colt. My husband got back the next evening.”

Ernest Bowman, recalled for further direct examination,, stated:

“I went about six miles from my place; got back home the next day about two or three o’clock; after loading the mare up in the truck I got in the truck with Mr. Johnson. We had the mare and colt in the truck.”

The foregoing is the substance of the testimony of the state. No testimony was offered by the defendant.

The defendant in his petition in error has assigned several errors alleged to have been committed in the trial of his case which he insists is sufficient to secure a reversal. The errors assigned are:

“The court erred in overruling plantiff in error’s demurrer to evidence of the defendant in error.
“The court erred in admitting the introduction of the testimony which was incompetent, irrelevant, and immaterial and prejudicial to the rights of the plaintiff in error, over the objection of the plaintiff in error.
“The verdict of the jury is contrary to law.
“That the court erred in its instructions to the jury.
“That the verdict of the jury was contrary to the evidence introduced in said cause.
“The court erred in overruling plaintiff in error’s motion for a new trial, to which action of the court the plaintiff in error then and there duly excepted.
“There was no legal evidence introduced by the defendant in error upon which a verdict could be legally rendered and upon which a judgment and sentence could be predicated.”

All of these errors Avill be considered together as the argument of the defendant is based on the question of the insufficiency of the evidence to sustain a conviction, and that the testimony of Ernest Bowman, who was granted immunity of the court in order to1 testify, was the testimony of an accomplice, and that the state did. not introduce sufficient testimony to corroborate the testimony of the accomplice. The defendant states in his brief that the evidence is wholly insufficient to meet the requirements of the established rule requiring the corroboration of the accomplice’s testimony.

Section 3071, O. S. 1931 (22 Okla. St. Ann. § 742), is as follows:

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

This court has construed our statute often, reaffirming the provisions of section 3071, supra, and held that a conviction on the testimony of an accomplice cannot be sustained unless corroborated by other evidence tending to connect the defendant with the commission of the offense. Kirk v. State, 10 Okla. Cr. 281, 135 Pac. 1156; Cornett v. State, 42 Okla. Cr. 93, 274 Pac. 676; Rogers v. State, 57 Okla. Cr. 294, 48 Pac. (2d) 344, and cases cited.

The question for this court to determine is: Is there sufficient evidence to corroborate the evidence of Ernest Bowman, an admitted accomplice? The testimony shows that when the defendant was advised he was charged with the larceny, Mr. M. P. Witcher, the owner of the mare and colt, told the defendant if they were put back on the ground floor he would go no further, but if they Avere not returned he would go- the limit, and the defendant replied in substance he would try to get them back. It is further shown that later on the defendant had a conversation with Mr. M. P. Witcher, at Lawton, and talked settlement with him but did not offer any definite amount. The defendant later sent for Mr. M. P. Witclier, and asked him to meet him in Duncan, and! Mr. Witcher met the defendant in Duncan at his request. The defendant wanted to settle with him and was advised by Mr. Witcher that a prosecution had been started and he could not agree to settle.

Mrs. Myrtle Bowman, the wife of Ernest Bowman, testified the defendant and Joe Bailey came to their home on the night of June 27, 1934, and woke them up and had the husband get up and go out and rope a colt for them,, and in the conversation she heard Bailey and the defendant tell her husband the mare and colt were Witcher’s; that her husband roped the colt and then, at the suggestion of the defendant, the defendant offered to give her husband $5 to ride the mare out toward Marlow; he did' so and did not return until the afternoon of the next day.

This court has many times had under consideration the question of the corroboration necessary for an accomplice. In Bond v. State, 54 Okla. Cr. 39, 14 Pac. (2d) 425, this court in the first paragraph of the syllabus stated:

“Where the sufficiency of the evidence to corroborate an accomplice is challenged, this court will take the strongest view of the corroborating testimony that such testimony will warrant, and, if it can say that there is corroborating evidence tending to connect the defendant with the commission of the offense, it will uphold the verdict.”

In Morton v. State, 46 Okla. Cr. 361, 287 Pac. 1087, this court in the fiWst paragraph of the syllabus stated:

“The testimony of an accomplice to sustain a conviction need not be corroborated in every particular in detail. The rule is that the testimony of an accomplice must be corroborated by such other evidence of material parts of Ms testimony as will tend to connect the defendant with the commission of the offense.”

In McCurdy v. State, 39 Okla. Cr. 310, 264 Pac. 925, 926, in the fourth paragraph of the syllabus the court stated:

“Evidence corroborative of an accomplice need not directly connect the accused with the commission of the crime. It is sufficient, although circumstantial, if such evidence tends to connect him with its commission.”

In Patterson v. State, 42 Okla. Cr. 255, 275 Pac. 387, in the first paragraph of the syllabus the court said:

“Corroboration of an accomplice’s testimony does not mean separate and complete proof of a crime but only that there should be some evidence of material facts in addition to the testimony of the accomplice tending to connect defendant with the commission of the crime charged. Held, that under the record in this case there is ample corroboration of the testimony of the accomplice.”

After a careful examination of the record in this case, we hold there is ample corroboration of the evidence of the accomplice Ernest Bowman. There are no reversible errors in the record.

The judgment of the trial court is affirmed.

DOYLE and BAREFOOT, JJ., concur.


author: DOYLE, J.

text:
    HARRY S. WILLIAMS v. STATE.
    No. A-9177.
    Sept. 17, 1937.
    (71 Pac. 2d 781.)

      A. J. Stevens and David Tant, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

Harry S. Williams was convicted in the district court of Woods county of the crime of grand larceny upon an information charging that on the 24th day of November, 1935, in said county, he did take and steal 400 gallons of gasoline, of the market value of $48, the property of the Farmers’ Independent Oil Company.

The jury by their verdict assessed his punishment at confinement in the state penitentiary for one year. He has appealed from the judgment rendered upon such conviction.

The following brief statement of the facts and the testimony will be sufficient to make clear! the contentions made:

It appears that the Farmers’ Independent Oil Company had storage oil tanks in the city of Alva between the Rock Island and Santa Fe tracks. The sheriff and two deputies had been watching near the tanks for about an hour'and a half before the defendant and two' other men drove up to the tanks with a tank trailer attached to the car. They were eyewitnesses to the taking of the gasoline stolen.

Neis Nelson, deputy sheriff, testified:

“About a quarter to 9 o’clock on the night of November 24, 1935, we saw a car with a tank trailer attached, drive in south of the Sinclair and Unity tanks, then the lights were turned out, the car came over to' the Farmers’ Independent Oil Company tanks, which were on a cement foundation about four and one-half feet high. Two men got out of the car, and the tank trailer was backed up to a tank. We could hear some hammering, and then heard gasoline coming out of the big tank and running into the tank on the trailer; it had run for several minutes, and the man on the ground got' up on the trailer, and said, ‘Cut it off.’ Then we turned our flash lights on them, we were perhaps 30 yards from them; at that time we heard a, voice call, ‘Look out.’ The two men at the tank ran, one north and the other one west; I caught the man that ran west, he first asked me who had him; I turned the light in his face and saw it was Harry Williams. Dewey Randall was with me and assisted in it; we took Mr. Williams down to the gas tank; I went to the Roller! Mills office and called Mr. Woods, and Mr. Huff, also Phil Walton, and they hauled the gasoline over to the service station of the Farmers’ Independent Oil Company.”

He further testified that when he caught the defendant:

“He asked me to turn him loose, and I said, ‘You are stealing from them, Harry,’ and he said, ‘Yes, I was, hut that is the first time I ever robbed them,’ and he put his arms around me and begged me to let him go, and I said, ‘You were stealing from them, Harry,’ and he still tried to pull loose, and Mr. Randall helped me. He said, ‘Let’s talk this thing over.’ I said, ‘No., let’s go to the car.’ He said: ‘My God, let me go; I will do anything, I will come to the office in the morning.’ We took him over to where Mr. Greer was, and I went and called the other men.”

The testimony of Ken Greer, sheriff, was in substance the same as that of the first witness. He further testified that when he took charge of the defendant he asked Mr. Randall if he had searched him. He said, “No,” and he told him to search him. Then the defendant, Williams, said: “Ken, what do you think I am, a hijacker? This is the first time I ever stole anything in my life.” That when Mr. Walton arrived he asked him if he gave Mr. Williams, permission to haul any gasoline from those tanks, he said, “No,” and Mr. Williams said to Mr. Walton, “You have got the goods on me,” or something like that. That after the defendant was placed in jail he asked him who the other two. men were. He said two fellows came to his place that night and hired him to haul a load of gasoline for them out about Freedom, and they were to give him $4 to haul this load; he gave their names as Bud Manning and Sam Welch.

The testimony of Dewey Randall, deputy sheriff, was substantially the same as that of the other two witnesses. He further testified that he came up where Mr. Nelson was scuffling with the defendant and took hold of him; Williams said, “Let’s talk this thing over, this is the first time I ever stole anything from them,” or something to that effect.

Phil Walton testified he is and has been manager of the Farmers’ Independent Oil Company for more than three years last past; that he was called to the company storage tanks that night and arrived there ten minutes after nine; that Mr. Williams pointed to> the tank and asked him if that was our tank. He said, “Yes, they are.” Williams said, “Well, boys, you have me with the goods on.” He found one lock on1 the tank unlocked with a key, the top of the gate on the other had been taken off, and it had been opened with a pair of pliers; that both valve tops were locked with one chain, which had been broken; that he did not give any one consent to take any gasoline from the tanks. That there were 400 gallons of gasoline found in the trailer tank; that the hose connecting the company tank with the trailer tank did not belong to the Farmers’ Independent Oil Company; that the market value of the gasoline taken was 12 cents a gallon.

As a witness in his own behalf the defendant testified : That he had been living in Alva since 1921, was a graduate of the high school and Normal College at Alva. That he had been engaged in the gasoline business for several years. That about 2 o’clock in the afternoon of November 24, 1935, two fellows came to his station driving a Chevrolet car and wanted- to buy 400 gallons of gasoline, and he did not have stock sufficient on hand to let them have that much, tout told them before they left that if they made any deal to buy any he would like to figure with them on hauling it. That when they came back they told him their names were Bud Manning and Sam Welch, and they engaged him to transport in his tank car 400 gallons of gasoline, telling him that they had bought it from the Farmers’ Independent Oil Company. They showed him a ticket for 400 gallons and it had the name “Phil” on it. That his tank car was not in good condition, and he and these two men spent the balance of the afternoon getting the car ready to haul the gasoline. That about 7 o’clock they left the station to go to the tanks, going a block north, a block east, then turned into the driveway that goes to the tanks on the railroad right of way. That he was driving a Buick sedan with a tank trailer. That he unhooked the trailer and they backed it by hand to the tank; then he backed his car-up and they hooked the trailer to the car before they loaded it. That he had turned off the lights on the car, but they had two flashlights. One man got up on the platform; he had the key and opened the valve; that he stayed on the trailer with a measuring stick and used it to measure the 400 gallons; then he told them to turn it off, one of the men hollered, “Look out!” and started to run, and he started to run with him and went 125 yards before Mr. Nelson caught up with him, and said, “Who are you?” Mr. Nelson flashed a light in his face and said: “Is it you, Harry? What were you doing down there?” And he said: “I am getting; ready to haul some gasoline.” About this time Dewey B-andall came up and witness said: “My God, Neis, if you think I am stealing this gasoline, turn me loose, and get those other fellows; I was not stealing it.” “We started back, Ken Greer was standing there waiting for us.” That he had run about 100 yards when he heard shots fired. That the next morning he told Sheriff Greer that they had hired him to haul gasoline, and that was why he was there. That he had a conversation there with Phil Walton and asked him if he sold any gasoline1 to any fellows that afternoon, but did not make the statement to Mr. Walton that, “You have got the goods on me this time.” He also denied having made the statements testified to by the officers that: “This is the first time I ever stole anything. This is the first time I ever robbed them.”

Three witnesses testified that they called at the defendant’s service station in Alva that day and saw two men working on a car or trailer.

The first assignment of error is that: “The verdict of the jury is not supported by the evidence.”

Considering all the facts and circumstances in the case, there can be no> doubt as to1 the sufficiency of the evidence to sustain the conviction.

The commission of the crime was proved by uncon-troverted evidence; the voluntary admissions of guilt on the part of the defendant at the time of his apprehension were shown by the testimony of four witnesses. We regard the circumstances established against the defendant amply sufficient to sustain the verdict. The inferences properly to be drawn from such circumstances point unerringly to his guilt. The taking was on a Sunday night. The lights on the defendant’s car were turned off before entering the tank yard. When intercepted there was flight, and the apparent intentional neglect to make inquiry before engaging in a doubtful transaction indicates guilty knowledge. His explanation is unbelievable and scarcely arises to tlie dignity of evidence. Without any doubt the contention made is without merit.

The second assignment is:

“Error of the court in reprimanding defendant’s counsel, which prevented the defendant from having a fair and impartial trial.”

This assignment is based upon the following excerpt from the record on cross-examination of the witness Nelson :

“Q. How long after you got back with your man was it until Mr. Greer returned? A. We were about half way back to the car when Mr. Greer came. Q. Youl hadn’t gotten, back when Mr. Greer came back? A. No, sir, we were having quite a time carrying Harry. Q. I didn’t ask you that, just answer my question. The Court: Now, he did answer your question, don’t start any abuse of the witness. Mr. Tant: I want to save exceptions to the court’s remark. The Court: The court will call you down when you get out of line. Mr. Tant: Exceptions.”

This assignment requires no discussion. It is obviously without merit.

The third assignment is:

“Error of the court in refusing to allow the defendant to introduce testimony tending to show the bias and prejudice of the 'complaining witness against the defendant.”

The record shows that the witness Walton on cross-examination testified:

“Q. Now, you and Mr. Williams have had some trouble between you, have you not? A. No, sir, I would not say it was trouble, no, sir. Q. Well, there has been some difference between you? A. ¡Some little difference, yes, sir. Q. You have made efforts to get wholesalers to discontinue furnishing him gas, have you? Mr. Lesley: That is objected to as incompetent, irrelevant, and immaterial. The Court : Objection sustained. Mr. Tant: Exceptions. Q. I will ask you the question this way. You have, through your influence as manager of this big concern down here, have had him cut off from his supply of gas, haven’t you? Same objection. Sustained. Mr. Tant: Give us exceptions. This testimony is offered for the purpose of showing the witness’ interest, and if permitted to answer the question propounded, he would state substantially that there was a business difference and difficulty existing between this witness and the defendant and that he has, through his influence with the wholesale .dealers, caused the wholesale dealers to stop selling this defendant gasoline, and it will show there was a difference existing between them and he was making an effort to force this defendant out of the gasoline business. Mr. Lesley: The state objects for the reason it is incompetent, irrelevant, and immaterial and not proper cross-examination. The Court: Objection is sustained. Mr. Tant: Exceptions.”

As a. general rule it is not competent to cross-examine a witness as to any distinct collateral fact not brought out in the examination in chief, Avith a view of impeaching his testimony by introducing other witnesses to contradict him. And, if a question as to such collateral fact be put to a witness with intent to discredit his evidence, his answer must be falten as conclusive. No eA'idence can be introduced afterwards to contradict him. Payne v. State, 10 Okla. Cr. 314, 136 Pac. 201; Willis v. State, 13 Okla. Cr. 700, 167 Pac. 333.

In Wharton on Ev., par. 559, the rule is stated thus:

“In order to avoid an interminable multiplication of issues, it is a settled rule of practice that, when a witness is cross-examined on a matter collateral to the issue, he cannot, as to his ansAver, be subsequently contradicted by the party putting the question.”

It follows that the ruling of the trial court in excluding this proffered evidence was correct.

The fourth assignment is based on the refusal of the court to allow the defendant to introduce evidence to show his financial condition at the time of the alleged offense.

The defendant testified that he had about $200 on his person when arrested; that he had sold his property on 64 Highway the day before.

He was then asked:

“Q. What was the consideration for the sale? State’s objection as incompetent, irrelevant, and immaterial sustained. Mr. Stevens: Give us exceptions. We offer it for the same reason given for the other question. The Court: He has already answered the other one. Mr. Stevens: He didn’t state what the consideration was. The defendant now offers to prove by this Avitness, Mr. Williams, that on the day before this transaction he sold his property on Highway 64 for $7,500, $4,000 or thereabouts of which was cash, and this is to shoAV the unlikelihood of Mr. Williams, at that time stealing $48 worth of gasoline. The Court: Objections sustained.”

It is sufficient to say there was no' error in the rulings of the court.

The remaining assignments of error are that the court erred in giving to the jury a certain instruction and erred in refusing, to give an instruction requested by the defendant.

It appears that no objection was made or exception taken to any of the instructions given 'by the court. Considered as a whole, the instructions given correctly cover the law of the case.

The court refused to> give the jury an instruction to the effect:

“If you believe the said defendant did not have an understanding or agreement with said parties to. steal said oil, but that he was merely employed by them to haul it, then you should find the defendant not guilty.”

While we are inclined to think the instruction requested should have been given, however, the instructions given in a general way covered the theory of the defense. We are clearly of the opinion that the court did not commit prejudicial error in refusing to give the requested instruction.

This court is not permitted to' reverse a rightful judgment of conviction on the ground of misdirection of the jury unless, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right. Section 3206, St. 1931 .(22 Okla. St. Ann. § 1068).

No other reason for reversing the judgment having been assigned, and finding the record free from reversible error, the judgment of the lower court is affirmed.

DAVENPORT, P. J., and BAREFOOT, J., concur.


text:
    A. C. BOLES v. STATE.
    No. A-9270.
    Sept. 23, 1937.
    (72 Pac. 2d 403.)

      Jean P. Day, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, the defendant in the trial court, was by information charged with obtaining money under false pretenses; was tried, convicted, and sentenced to serve a term of three years in the state penitentiary and finded $1,000. From the judgment and sentence the defendant, A. C. Boles, has appealed.

His appeal was filed in this court on March 1, 1937. The case was on the 25th day of May, 1937, submitted on the record, and defendant given 30 days in which to file his brief. It has been about four months since the case was submitted and no brief has been filed by the defendant and no showing made why the brief has not been filed.

Where a case has been appealed to this court and: no brief is filed, this court will examine the record and see if there were any fundamental or prejudicial errors committed by the trial court. Williams v. State, 9 Okla. Cr. 185, 130 Pac. 1177; Northcutt v. State, 22 Okla. Cr. 410, 211 Pac. 521; Arthurs et al. v. State, 35 Okla. Cr. 126, 127, 248 Pac. 873; Fullingame v. State, 35 Okla. Cr. 154, 249 Pac. 166; Poole v. State, 37 Okla. Cr. 59, 256 Pac. 67.

After a careful examination it is not deemed necessary to- set out the evidence in full in this case. Suffice it to say the evidence is sufficient to sustain the judgment and sentence. There are no- prejudicial or fundamental errors in the record. The jury was correctly advised as to the law applicable to the facts. The defendant was accorded a fair and impartial trial. The judgment of the trial court is affirmed.

DOYLE and BAREFOOT, JJ., concur.


text:
    BILL TUCKER v. STATE.
    No. A-9280.
    Sept. 23, 1937.
    (71 Pac. 2d 1092.)
    Joe Adwon and James L. Gowdy, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, P. J.

The information in this case charged that Bill Tucker and Roy Denmark, on the 5th day of March, 1936, committed the crime of transporting intoxicating liquors. Bill Tucker was tried separately on the charge against him and a verdict of guilty returned fixing his fine at $50 and imprisonment at 30 days in jail. From this judgment of conviction the plaintiff in error, Bill Tucker, appeals. The parties hereafter in this opinion will be referred to as they appear in the trial court.

Before the jury was impaneled in this case, the defendant moved to suppress the evidence against him on the ground that it was secured by an unlawful search and seizure. Testimony was taken. The court overruled defendant’s opinion to suppress, and defendant saved an exception.

'On the defendant’s motion to suppress the evidence on the ground of unlawful search and seizure, he called W. E. Agee, who stated he knew Bill Tucker;

“I had no warrant for his arrest on the 5th day of March, 1936, nor did I have any warrant to search his car that day; defendant Avas going west about nine miles northeast of the Capitol. I was going east when I first saw him. George Kerr was after him in another car; I stopped him and searched him; he was not violating any law when I stopped him; he did not get out of the car until I stopped him.”

George Kerr, testifying on behalf of the state, stated' he lived in Oklahoma City; was a deputy sheriff; he knew the defendant Bill Tucker;

“I saw him on the 5th day of March, 1936, on the Witcher road north of Oklahoma City. I arrested him for reckless driving at the time I stopped him; had no warrant for Ms arrest nor a warrant to search his car; when I arrested him he was about half drunk and driving about sixty to seventy miles an hour on the wrong side of the road; I did not file any charge against him; I learned he had had' a fight up near the county line and went out to arrest the defendant; when I met him I turned and tried to catch him but couldn’t, and finally another officer stopped him.”

The evidence in the trial is in substance the same as on the motion to suppress.

The defendant has assigned ten errors alleged to have been committed by the trial court which are sufficient to reverse his case. The second and third assignments are asl follows:

“2. The court erred in overruling the motion to suppress the evidence. To which ruling, of the court the defendant duly excepted and still excepts.
“3. The court erred in permitting the state to introduce incompetent, irrelevant, and immaterial testimony over the objections of the defendant. To which ruling, of the court at the time the defendant excepted and still excepts.”

.Section 2780, O. S. 1931 (22 Okla. St. Ann. § 196), is as follows:

“A peace officer may, without a warrant, arrest a person: (1) For a public offense, committed or attempted in his presence. (2) When the person arrested has committed a felony, although not in his presence. (3) When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it. (4) On a charge, made upon reasonable cause, of the commission of a felony by the party arrested.”

In this case, if it be a fact, which is not proven, that the defendant had a fight near the county line, it was not in the presence of the officer and he would be without authority to make the arrest, the fight being a misdemeanor. The record is silent as to whether or not there had been a fight; nothing but rumor had the officer, and that would not have been justification for arresting the defendant if he had had the fight, unless it had occurred in the officer’s presence.

The defendant had a right to be on the highway, and while the witness Kerr attempts to say he stopped and arrested him for fast driving, the witness Agee contradicts Kerr and states positively he stopped the defendant, and the defendant was not violating any law when he stopped him and had not gotten out of his car. There is no contention by either of the state witnesses that they could see the defendant had whisky in his car at the time they stopped him upon the public highway without a warrant for his arrest, or to 'search his car.

An officer seeking the enforcement of one law should not violate another in order to accomplish his purpose. Such conduct brings the administration of justice into disrepute and shows a subversion of peace and good order. When the officers searched the car of the defendant and claim to have found the. whisky therein, they did so without any legal authority, and the search and seizure was unlawful and a violation of the defendant’s rights as guaranteed him by the laws and Constitution of Oklahoma.

In Whitford v. State, 35 Okla. Cr. 22, 247 Pac. 424, in the first paragraph of the syllabus the court stated:

“Where the offense is not a felony, an officer cannot arrest without a warrant, unless the offense was committed or attempted in his presence.”

In the second paragraph of the syllabus, the court further stated:

“Where the officer does not know of the act constituting the offense, it is not committed in his presence.”

The right of the officers to arrest without a warrant is well defined by our statute and the decisions of this court, and without a warrant an officer has no right to arrest on mere suspicion that a misdemeanor is being or has been committed. He can only arrest without a warrant if a misdemeanor is committed in his presence.

In Condron et al. v. State, 31 Okla. Cr. 130, 237 Pac. 465, in the body of the opinion this court said:

“It has been repeatedly held by this court that, where the offense is not a felony, an officer cannot arrest without a warrant, unless the offense was committed or attempted in his presence, and that, where the officer does not know of the act constituting the offense, it is not committed in his presence.”

There being no competent evidence to support a conviction without the use of the evidence that has been unlawfully obtained, the motion of the defendant to suppress the evidence should have 'been sustained, and the case dismissed, on the ground that there was no competent evidence to sustain a conviction.

The judgment is reversed, with directions to discharge the defendant.

DOYLE and BAREFOOT, JJ., concur.


text:
    STATE v. C. O. PYLE.
    No. A-9244.
    Sept. 23, 1937.
    (71 Pac. 2d 997.)
    Mac Q. Williamson, Atty. Gen., Fred Hansen, Asst. Atty. Gen., Holly L. Anderson, Co. Atty., and Dixie Gilmer, Asst. Co. Atty., for the State.
    Hickman & Ungerman, for defendant in error.
   DAVENPORT, P. J.

The plaintiff in error charged the defendant in error, Carl Pyle, whose true name is C. O. Pyle, by information with a violation of the Barbers Sanitary Act. Omitting the caption and signature, the information is as follows:

“Be it Remembered: That Holly L. Anderson, the duly qualified and acting county attorney for Tulsa county, Okla., who prosecutes in the name and by authority of the state of Oklahoma, comes now into court of common pleas within and for Tulsa county, state of Oklahoma, on this the 31st day of August, A. D. 1936, and gives the court to understand and be informed that on the 29th day of August, A. D. 1935, and prior to the filing of this information in Tulsa county, state of Oklahoma, Carl Pyle, in said county, and within the jurisdiction of this court, did unlawfully and willfully violate the sanitary provisions of the Barber Law of the state of Oklahoma, in the manner and form as follows, to wit: That on said above mentioned date, at Red Fork, Okla., said defendant used a toAvel on more than one customer without having it laundered. Contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

On September 8, 1936, the defendant, C. O. Pyle, filed his demurrer to the information, which demurrer, omitting the caption and signature, is in words and figures as follows:

“Comes now the defendant and demurs to the information herein upon the following grounds:
“1. That said information does not state facts sufficient to constitute an offense against the laws of the ■state of Oklahoma.
“2. That there is no statute defining, the offense attempted to be alleged in said information nor do the statutes of Oklahoma make said alleged act an offense.
“3. That that part of the statute creating the Board of Barber Examiners and making a violation of the rules and regulations adopted by such board criminal is unconstitutional and is an unwarranted attempt by the Legislature to delegate the power to define crimes to said board.”

This demurrer was briefed and argued by the attorneys for the state and the defendant, and when the case was called for trial, the state and the defendant through their respective counsel entered into the following stipulation :

“The Court: Let the record show it is stipulated by and between the state and the defendant, C. O. Pyle, through their respective counsel that the acts described in the information in case No. 31003, The State of Oklahoma v. C. O. Pyle, were and are in violation of the sanitary rules and regulations previously adopted' and in full force and effect under the authority granted by the law to the State Board of Barber Examiners.”

The demurrer to said information, and the defendant’s demurrer to said evidence, was sustained by the court, and the court entered the following judgment:

“Now, on this 9th day of September, 1936, this matter coming on for trial in its regular order, the state appeared by Holly L. Anderson, county attorney, and W. F. Gilmer, Jr., and John F. Conway, assistant county attorneys, and the defendant appeared by his attorneys Hickman and Ungerman, and the court having heard argument of counsel upon the demurrer of the defendant to the information filed herein took the ruling upon the demurrer under advisement until the conclusion of the trial. The state introduced its evidence and rested, and defendant demurred to the evidence of the state, whereupon upon application of the state this cause was continued for decision until the 11th day of September, 1936, and on the 11th day of September, 1936, this cause was again • continued on the application of the state until the 18th day of September, 1936, and the matter coming on to be heard before the court on the 18th day of September, 1936, and the court being fully advised in the premises finds that the demurrer of the defendant to the information of the state filed herein should be sustained, and that the demurrer to the evidence of the state should be sustained.
“It is therefore ordered, adjudged and decreed by the court that the demurrer of the defendant to the information filed herein be and the same is hereby sustained, and the demurrer of the defendant to the evidence of the state is hereby sustained. To which the state excepts.
“It is further ordered, adjudged and decreed by this court that the defendant be discharged, to which ruling of the court the state gave notice of intention to appeal to the Criminal.Court of Appeals of the state of Oklahoma, ¡upon the ruling of the court in sustaining the demurrer to the information and upon the reserved question of law as to whether or not the information herein charges a public offense. The state was given 30 days in which to make case-made, and the defendant was given 5 days thereafter to suggest amendments, to be settled upon three days’ notice.”

The defendant, as shown by the record, is charged with the violation of section 6, chapter 60, Session Laws 1933 (59 Okla. St. Ann. § 77), which is as follows:

“The Board of Barber Examiners shall have authority to, and shall, under the direction of the State Commissioner of Health, prescribe sanitary requirements for barber ■ shops, and barbers and apprentice barbers working therein. Any person operating, a barber shop who knowingly permits said sanitary requirements to be violated, and any person, whether or not a registered 'barber or apprentice barber, violating said sanitary requirements shall be guilty of a misdemeanor and upon conviction be punished by a fine of not more than one hundred ($100.-00) dollars. The violation of said sanitary requirements by a registered barber or apprentice barber shall also constitute grounds for the suspension or revocation of his certificate of registration, by the State Board of Barber Examiners.”

This is an appeal by the state from a judgment of the trial court sustaining the demurrer of the defendant to the information, on the ground that the statute the defendant is alleged to have violated is unconstitutional. The information in this case was filed on August 31, 1936, wherein the defendant was charged Avith violating the sanitary provisions of the barber laws of the state of Oklahoma, in the county of Tulsa. When the demurrer was sustained by the trial court, the state excepted to the ruling of the court, prayed an appeal, and appeal was filed in this court on November 4, 1936.

The section of the act it is alleged the defendant had violated was section 6 of chapter 60, 'Session Laws 1933 (59 Okla. ¡St. Ann. § 77). Since this case was filed in the court, our Legislature passed an act defined as “Board of Barber Examiners,” which act is chapter 24, art. 2, and found on page 48, of the. Session Laws of 1936-37’ (59 Okla. St. Ann. § 91 et seq.), and was approved by the Governor on May 22, 1937. The title of the said act is as follows:

“A bill entitled An Act to regulate and control the barber industry; conferring upon the State Board of Barber Examiners powers and jurisdiction with relation thereto, defining such powers, jurisdiction and duties; authorizing the said Board to approve agreements and to make orders fixing minimum prices for barber work; providing for judicial review of such acts of said board; providing penalties for the violation of this act.”

Section 8 of the act (59 Okla. St. Ann. § 98) is as folloAvs:

“That a violation of any provision of this act or of any rule, when a written certified copy of said rule has been served upon the person violating said rule, subpoena or order of the board lawfully made pursuant hereto, except as otherwise expressly provided by this Act, shall be a misdemeanor punishable by a fine not less than twenty-five ($25.00) dollars and not exceeding three hundred ($300.00) dollars, or by imprisonment not exceeding six (6) months, or both.
“The board may institute such actions in the courts of competent jurisdiction as may appear necessary to enforce compliance with any provision of this Act or to enforce compliance with any rule, subpoena or order of the Board made pursuant to the provisions of this Act, and in addition to any other remedy may apply to any District Court of competent jurisdiction for relief by injunction.”

Section 16 (59 Oída. St. Ann. § 91 note) provides:

“That all laws or parts of laws in conflict herewith be, and the same are, hereby repealed.”

The passage of the Act of May 22, 1937, repealed the act under which this prosecution was started, and the question involved becomes a moot question.

In Parker et al. v. Territory ex rel. Bostick, County Attorney, 20 Okla. 851, 94 Pac. 175, 176, the Supreme Court of the Territory, in the body of the opinion, stated:

“The proposition involved is the determination of the question of whether or not certain statutes of the territory of Oklahoma relating to roads and bridges, and the limitation upon the powers of the county commissioners to levy assessments for the building thereof, have been repealed by implication or otherwise.
“In view of the fact that the time for mailing the assessment involved in this suit has long since lapsed, and the term of office of the defendants has long since expired, no practical result can follow a determination of the question presented.”

In Hudspeth v. Commonwealth, 204 Ky. 606, 265 S. W. 18, the court in the body of the opinion stated:

“It is the universal rule that courts will not consume their time in deciding abstract propositions of law or moot cases, and have no jurisdiction to do so. A moot case is one which seeks to get a judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right, before it has been actually asserted and contested, or a judgment upon some matter which, when rendered, for any reason cannot have any practical legal effect upon a. then existing controversy. As falling within that category it is well established that where, pending an appeal, an event occurs which makes a determination unnecessary or which would render the judgment that might be pronounced ineffectual, the appeal should be dismissed. 4 C. J. p. 584, § 2396; * * * Finley v. Smith, 89 S. W. 547, 28 Ky. Law Rep. 564; Mills v. Green, 159 U. S. 651, 16 S. Ct. 132, 40 L. Ed. 293.”

In Mesa Mail Pub. Co. v. Board of Supervisors of Maricopa County et al., 26 Ariz. 521, 227 Pac. 572, in the body of the opinion the court said:

“While this court, so far as has been called to* our attention, has made no previous expression upon this subject, the law in other jurisdictions is well settled that the court will not decide moot questions or abstract propositions. * * * State v. Lambert, 52 W. Va. 248, 43 S. E. 176; Kidd v. Morrison, 62 N. C. 31.”

It would be patent that the determination by this court on the question presented by the state in its appeal would be wholly ineffectual to afford the state any relief regardless of how the question should be determined, and without expressing an opinion as to the merits of the question raised by the appeal, we hold the question moot, and the appeal is dismissed.

DOYLE and BAREFOOT, JJ., concur.


author: BAREFOOT, J.

text:
    LEO F. MATHERLY v. STATE.
    No. A-9210.
    Sept. 23, 1937.
    (71 Pac. 2d 1094.)
    Fred L. Patrick and W. F. Pardoe, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Everett S. Collins, Co. Atty., for tbe State.
   BAREFOOT, J.

The first error assigned by defendant is that the conrt erred in refusing toj sustain the motion to quash the panel of jurors drawn in Creek county for the January, 1936, term of court.

It is contended: (a) That the jury list was not selected with regard to the voting strength of the several townships, (b) The jury commissioners failed to certify the voting precincts of the jurors drawn by them. No proof was offered to sustain the first proposition and defendant in his brief cites no1 authorities. The certificate of the jury commissioners recites:

* * * Each being and possessing the qualifications for jurors in and for Creek county, state of1 Oklahoma, as prescribed by law, selecting the same from the various municipal townships of said county, as nearly as practicable to the voting strength of each municipal township.”

It is time that the list of jurors prepared by the commissioners does not show the election precinct in which each of the jurors resided. It does show the post office address and often the street address. This, we think, substantially complies with the intention of the Legislature when it says that the election precinct of each juror shall be given. This provision of the statute was evidently for the purpose of locating the jurors and enabling interested parties to investigate the qualifications of such jurors. Certainly the giving of the address, as was done here, would answer this purpose. Section 808, Okla. Stats. 1931, Okla. Stats. Ann., vol. 38, p. 676, § 13, provides in part:

“A substantial compliance with the provisions of this chapter shall be sufficient to prevent the setting aside of any verdict rendered by a jury chosen hereunder, unless the irregularity in drawing, and summoning or empaneling the same, resulted in depriving a party litigant of some substantial right.”

It not being shown that defendant was deprived of any substantial right, or was deprived of a fair trial, through the failure of the jury list to set forth the voting precinct, we see no error of the court in overruling the motion to suppress the jury panel.

The second contention of defendant is that the verdict is not sustained by sufficient evidence and is contrary to law. This question, to our mind, presents a very serious one, and demands a review of the evidence offered in this case. The statement of facts as given in defendant’s brief is not disputed by the state. We have carefully read and reread this statement and the evidence offered. The only witnesses presented by the state on direct examination were the prosecutrix, Mabel Matherly, Dr. Humphrey, and Dr. Adams. The defendant testified in his own behalf, and introduced many witnesses who testified to his good character and reputation in the community where he lived and had lived for many years', at the time of the commission of the crime charged. He also introduced other witnesses who' contradicted certain statements made by prosecutrix. On rebuttal the state introduced several witnesses who testified that the reputation of defendant was bad. Two of these witnesses had had trouble with the defendant and were unfriendly toward him, and the other did not give much reason for his testimony. Much of the testimony of the defendant and prosecutrix was the same. By this testimony it is revealed that the defendant in 1913 or 1914 married one Bertha Ingalls. That about a year' thereafter, the prose-cutrix, Mabel Matherly, was born. That about a year thereafter defendant and his wife separated and he procured a divorce. The record does not disclose which of the parties was given custody of the prosecutrix, but it is shown that afterwards the defendant had custody of her, first keeping her with the parents, of his former wife, and with other persons, one being his brother and wife. When prosecutrix was about three years of age, defendant entered the army during the World War. At this time defendant placed his child with his father and mother, who lived in the small town of Olive in Creek county. That after defendant entered the army his former wife and mother of the child obtained possession of her for the purpose of drawing compensation during the time of his service in the war. That when the prosecutrix was 11 years of age she was returned to defendant by his former wife. The defendant having married the second time, she was taken to the home of defendant and his second wife. During her 11th year prosecutrix wrote a very insulting letter about her father to her mother and in Avhich language was used very unbecoming a girl of her age. She lived with her father and stepmother in their home near Olive, and attended the public schools of that community until she was about 21 years of age, graduating from the high school there. During all of this time she was given a good home by her father and stepmother, Avas well dressed, and given every opportunity that a community of that size offered. Prosecutrix testified that during, this time her father was very strict on her, and that she was not permitted to keep company with any boys in the community. The defendant, while admitting he Avas strict as to the class of boys whom he permitted to accompany her, denied these charges, and several boys testified as to being in her company and taking her places on different occasions, and of knowing other boys who did the same. The evidence further disclosed that defendant had many kinspeople living in this community during the time that these charges were' made. He had three brothers and sisters, and his father and mother.

The information against the defendant was filed on the ¡11th day of March, 1935; the date alleged in the information as to the commission of the offense charged was December 29, 1933. He was tried on the 18th day of March, 1936. The prosecutrix at the time of the trial was 21 years of age. She testified that for six years prior to the commencement of this action defendant had numerous acts of sexual intercourse with her, beginning at the time she was 14 years of age and continuing until she was 20 years of age, and that all of such acts were by the use of fear and1 force upon the part of the defendant. That as a result of these acts she had a child prematurely born in 1931, at which time she was waited on by Dr. Thompson at her home. That in 1934 she had a second child bom in a hospital at Cushing, where she was waited upon by Dr. Adams, and it was this act upon which the complaint and information was based in this action. She testified that she had never told anyone of these acts of intercourse until after defendant had been placed in jail on the charges filed against him in this case. She testified that she had not told her stepmother, but that her stepmother knew all about it and gave this as a reason for her stepmother leaving the defendant’s home and going to her home in Arkansas. The evidence in this connection shows that the stepmother on one occasion was away two months in the state of Arkansas, at which time she returned and lived with defendant and prose-cutrix over a period of years and then left again and at the time of this trial was living’ a.t Norfleet, Ark. She was not called as a witness and did not testify in this case. The testimony of prosecutrix further revealed that at the time of the birth of the child at the Cushing hospital she told Dr. Adams the name of the party who was the father of her child, and it was a person other than her father, and she also told the county judge of Payne county the same story. Her explanation of this at the time of the trial was that she was afraid to tell the truth for fear of injury by her father.

The prosecutrix testified that these acts of intercourse started when she was 14 years, of age and many of them were committed, including the first time, in a room adjoining that occupied by her stepmother, and she testified to many times1 when she claimed' her stepmother was present in the house. At one time she testified as follows :

“Q. Did you- ever tell anybody? A. No, sir, I never did come right out and tell my stepmother, but I told her enough that she knew. I told him I could send him to the pen for life and he would double up his fist and knock me down. Q: When did he do that? A. One time when I got ready to leave. Q. In whose presence? A. My stepmother’s; he doubled up his fist and knocked me down and my stepmother got in between us. Q. Did! you ever tell anybody about it? A. I told people he was mean to me, but I didn’t tell what he was doing because I was afraid to tell.”

She testified that she did not tell the officers about it the first night after her father was arrested, but the second night, when they took her to Drumright she told it. She gave as a reason that her father was mean to her; that she was afraid of him; and that everybody in Olive knew she was afraid of him. In another part of her testimony she said:

“A. I was afraid of him. Q. Why? A. Because he was mean to' me. Q. Didn’t he always furnish you with as good clothes as anybody in the community? A. Oh, yes, sure. Q. Didn’t he always provide for you as much as any girl in that community? A. Yes, sir. Q. ¡Sent you to school? A. Yes, sir. Q. Four years of high school? A. Yes, sir. Q. Gave you plenty to eat? A. Yes, sir. Q. And as nice a home as anybody has over there? A. Yes, sir. Q. And provided well for you? A. Yes, sir. Q. Then in what way was he mean to you? A. Simply because he was. When I was 11 years old I couldn’t walk through the room but what he would make some remark and when I was 12 he said, ‘She is the hottest assed thing I ever saw to be 12 years old’; and Mattie called him down.”

Also :

“Q. And you didn’t tell any of your aunts and uncles? A. No, sir. Q. Nor your grandfather or grandmother? A. No, but they all knew it. Q. How did they know it? A. Well, because my stepmother knew it. She knew it in her own mind but she couldn’t prove it, and she told the folks about it. Q. You know she told all the folks about it? A. Yes, sir. Q. And nothing was done about it? A. No, sir. Q. And nothing was ever said about it? A. No, sir, my stepmother tried to get Uncle Harvey to talk to daddy and try to get him to do different but hei wouldn’t do it. Q. I believe you stated to the county attorney that you hated your daddy from the time you were about 11 years old? A. No, I never did until he started cowing me to death. Q. What age were you? A. Between 11 and 12.”

Dr. Adams, testifying for the state, said that on October 5, 1934, he delivered prosecutrix of a child; that at that time she gave him the name of one other than defendant as the father of the child; that defendant brought her to the hospital and that his wife prepared clothing for the child, as none was brought; that he and his wife adopted this child.

Dr. Humphrey testified that in April, 1932, he attended a young lady at the Matherly home; that he did not know whether it was prosecutrix or not; that it was a premature delivery; and that he was not told who the father of the child was.

We have given a rather full statement of the testimony offered by the state in this case. The evidence of the daughter is denied by defendant. Under the law, if the acts related by the prosecutrix were committed by force and fear, as she testified, it would not be necessary for her to be corroborated, or if she was under the age of consent at the time, our court has held that it would not be necessary for her testimony to be corroborated. See Carr v. State, 22 Okla. Cr. 371, 211 Pac. 423. But if she consented to the act she would then be an accomplice and under the statutes of this state it was necessary for her testimony to be corroborated. The question as to whether she was an accomplice is a question of law to be determined by the court. The question of the sufficiency of the corroboration is a question of fact for the jury. See Pruett v. State, 35 Okla. Cr. 359, 250 Pac. 1029.

The act relied upon in the allegation of the information was1 alleged to have been committed on the 29th day of December, 1934. At this time the prosecutrix would1 have been 20 years of age. It is inconceivable to us that these acts could have been committed by the defendant over a period of six years, sometimes every day or night in the week as testified to by prosecutrix, and while the wife of defendant was in an adjoining room, and this by the use of force and fear. The fact that the wife of defendant and the stepmother of prosecutrix lived with defendant under such conditions as these is inconceivable; yet, according to the testimony of the prosecutrix, she did this very thing covering a period of six years. It seems to us that under the testimony the court would have been justified in finding as a matter of law that if the defendant had committed the acts complained of by the prosecutrix it was accomplished Avith her consent, and this being true she would be an accomplice, and it would be necessary under the statutes of this state that her testimony should have been corroborated. As before noted, the prosecutrix testified to many acts when the stepmother was. present; she also' testified that the stepmother Avas now living in Norfleet, Ark. It might have been that she was not produced as a witness upon the theory that she could not testify against her husband, but prosecutrix also testified that many people in and around Olive knew all about this; yet no witness Avas placed upon the stand from this community Avho in any way corroborated the story told by the prosecutrix. See Cargill v. State, 25 Okla. Cr. 314, 220 Pac. 64; Lacey v. State, 27 Okla. Cr. 42, 224 Pac. 994. In a case of this nature, even though the evidence was not admissible the state might have seen fit not to object thereto'. In many cases the evidence has been admitted without objection. She went for six years, from the time she was 14 years of age until the túne she was a grown young lady 20 years of age, attending the public schools of this community, graduating from the high school, and according to her own testimony, told no one of the outrage that was being perpetrated upon her by her own father almost daily during this time, and further that this was being accomplished by force and fear. She never even mentioned this to her own people, many of whom lived in close proximity to where she lived. She did not mention it to any of her teachers. Certainly if her story was true some witness or witnesses could be produced by the state to corroborate her testimony.

The evidence revealed that the defendant endeavored to secure a place in the home of Mr. Lucas, superintendent of schools at Olive, and Mr. Holcomb, a prominent farmer in that community, for his daughter to reside. These propositions Avere considered very favorably by these parties and would have been accepted but for minor difficulties aside from this case. This was at the very time she testifies that these different outrages were being perpetrated against her by her father. It is passingly strange that he would attempt to place her in the homes of these good people if he was guilty of having the relations Avith her in the manner she testified.

We fully realize that a jury passed upon- these facts, and we also note, and the wisdom of the ages has revealed, the great prejudice which exists against one charged with the crime of which this defendant stood charged. If he was guilty he deserves the extreme punishment; but this guilt should be established by evidence which leaves no doubt in the mind of the court and jury as to its truthfulness. The record in this case cannot be read with its contradictory statements by the prosecutrix, its unreasonableness, its lack of corroboration, and especially the fact that witnesses Avere not jdaced upon, the stand whom the prosecutrix herself stated knew about many facts which, if true, would have corroborated her testimony. This court, in two recent cases, has decided questions similar to the one here involved. The case of Williams v. State, 61 Okla. Cr. 396, 68 Pac. 2d 530,531, and Self v. State, 62 Okla. Cr. 208, 70 Pac. 2d 1083, 1093. Many authorities are cited in these cases sustaining the views here taken. In the Self Case, the court says:

“The charge of illicit sexual relations is easily made, and often inspired by malice, hidden motives, or revenge, and evidence to establish the same may be easily fabricated and hard to disprove. As has been well stated 'by an able jurist: ‘There is no class of prosecution attended with so much danger, or which affords so ample an opportunity for the free play of malice and private vengeance. In such cases the accused is almost defenseless.’
“In our opinion no person charged with crime should be convicted on such improbable, inconsistent, and unreasonable testimony as that given by the prosecutrix in this case.”

See Morris v. State, 9 Okla. Cr. 241, 131 Pac. 731; Ferbrache v. State, 21 Okla. Cr. 256, 206 Pac. 617; Witt v. State, 29 Okla. Cr. 357, 233: Pac. 788; Palmer v. State, 7 Okla. Cr. 557, 124 Pac. 928.

This court, after carefully reviewing this record and the proceedings of this trial, has come to the unanimous conclusion that it Avould be unjust for this defendant to serve a term in the penitentiary, for a period of ten years upon the testimony offered in this case. It is better that the case be reversed and that an opportunity be given to see if the testimony of the prosecutrix may be corroborated if the state deems it advisable to retry it. If not, it should be dismissed.

We deem it advisable to' refer to the instructions given by the court because the giving, of certain of these instructions, in our opinion, was erroneous. The record discloses that defendant did not except to the giving of the instructions and for the first time in his motion for new trial stated that the court erred in giving instructions Nos. 1 to 14, inclusive. This court has held many times that where the defendant has failed to1 take his exceptions to the instructions of the court, the same will not be considered only to see if fundamental error has been committed by the court in the giving of the instructions. We call attention to the instructions which we think were error. In instruction No. 4, the court instructed the jury as follows:

“You are instructed that it is not necessary for the state to prove the exact time of the commission of the alleged crime and that proof of its commission at any time within three years next prior to the filing of the information herein, to- wit, on the 11th day of March, 1935, is sufficient as to time.”

By this charge the court instructs the jury that proof at any time within three years next prior to1 the ■filing of the information is sufficient as to the time. It is true prior acts in cases of this character are competent for the purpose of showing familiarity between the parties and for the purpose of corroborating the offense charged where the prosecutrix was not an accomplice, ■but where the prosecutrix is an accomplice as shown by the facts in this case, the jury should have been limited to find whether the act Avas committed on the date alleged in the information. The defendant, was specifically charged on that date. This distinction is clearly shown in the ease of Ealum v. State, 32 Okla. Cr. 197, 239 Pac. 933, 934. The court, after referring to the cases cited in defendant’s brief, says:

“The Coss Case, supra [53 Ore. 462, 101 Pac. 193], is a case wherein rape is charged, and several acts appear in the testimony. The Moss Case, supra [73 Wash. 430, 131 Pac. 1132], is a charge of adultery, and four separate and distinct acts appear in the evidence. The Clark Case [27 Idaho, 48, 146 Pac. 1107], supra, is an incest case, and more than one act appears in the evidence. The Williams Case [133 Cal. 165, 65 Pac. 323], supra, is an adultery case, and numerous acts appear in the evidence.
“In all these cases it was proper to offer evidence of other acts, as it would be under! our practice, in order to show the relation, inclination, and. intent of the parties. But to warrant a conviction it would be necessary to rely upon one specific act, and it would be further necessary that the jury be limited to one act.” State v. Clark, 27 Idaho( 48, 146 Pac. 1107; State v. Coss, 53 Ore. 462, 101 Pac. 193; State v. King, 50 Wash. 312, 97 Pac. 247, 16 Ann. Cas. 322.

In People v. Williams, 133 Cal. 165, 65 Pac. 323, 324, the court says:

“The trouble arises from the fact that upon a charge of crime involving sexual intercourse by consent other like offenses may be shown to prove that the parties are lewdly inclined, and that the barriers of modesty have •been broken down with reference to each other; not primarily to prove habitual or continuous criminality or other offenses. In this case, as well as in any other, the prosecution must charge a specific offense; and the conviction, if one is had, must depend upon the proof of that offense alone.”

In the case of Walker v. State, 12 Okla. Cr. 179, 153 Pac. 209, 213, this court says:

“While the announcement, of the court may be a correct general statement of hnv as applied to al variance between the time fixed in an indictment and that proven upon a trial, it was not a fair and explicit statement of the rule as it should have been applied to the facts in evidence in this case. The only testimony tending to shoAV the time of the commission of the offense was that of t-lie witness Brady, who stated that ‘it was either in September or October of the year 1911.’ The defendant was entitled to know the particular offense that he was called upon to defend against and to know approximately the time when it was committed, and we think that under the peculiar circumstances of this case the uncalled for announcement of the court was prejudicial to the substantial rights of the defendant.”

The prosecutrix testified to many acts of intercourse and on many different dates, some of them prior to the time she had reached the age of consent, others after she had reached that age; the specific act alleged in the information being after she had reached the age of consent. Under the above instruction, the jury could have found the defendant guilty although they did not believe him guilty at the time alleged in the information. If they believed him guilty prior to her arriving at the age of consent, the law is that she would not have to be corroborated. If they believed him guilty after she had arrived at the age of consent and that the act was committed voluntarily upon her part, then it would be necessary for her to bei corroborated. One juror could have believed defendant guilty on one date and another juror believed him guilty on another date. It will thus be seen that this charge did not distinguish as to the questions involved here, and we are of the opinion that the same was fundamental error.

In instruction No. 7, the court instructed the jury that a person charged with the commission of a crime cannot be convicted upon the uncorroborated testimony of an accomplice. The court then says:

“You are instructed that the question of whether or not the prosecuting witness, Mahel Matherly, was an accomplice to the alleged crime charged against the defendant is a question of fact for the jury to be determined from all the evidence and all the facts and circumstances before you in this case.
“In this connection you are instructed that a female person cannot be an accomplice to* the crime of incest unless she consents to the act and is in fact guilty of the crime herself; and, that in no event can a female person be deemed an accomplice to such crime where she was caused to submit by the use of force, fraud or undue influence on the part of the defendant.”

It will thus be noted that the court by this instruction submits to1 the jury the question of fact as to whether the prosecutrix, Mabel Matherly, is an accomplice, and under the second paragraph quoted, tells the jury that a female person cannot be an accomplice to' the crime of incest unless she consents to the act and in fact is guilty of the crime herself and cannot be deemed an accomplice where she submits to the act through force, fraud, or undue influence on the part of the defendant. This may be a true statement of the law, but as pointed out in referring to instruction No>. 4, it would be impossible for the jury to' distinguish between the two instructions, for a different rule applies if the jury relied upon conviction at a time before she reached the age of consent or after she had reached that age. Under the holdings of this court, the question of whether or not the prosecutrix, Mabel Matherly, was an accomplice was a question of law to be determined by the court. See Pruett v. State, supra; Yeargain v. State, 57 Okla. Cr. 136, 45 Pac. 2d 1113; Cudjoe v. State, 12 Okla. Cr. 246, 154 Pac. 500, L.R.A. 1916F, 125. This rule is well defined in the case of State v. Clark, 27 Idaho, 48, 146 Pac. 1107, 1115, where the court says:

“The evidence shows that intercourse could not have occurred without the consent of the prosecutrix. She was therefore an accomplice if the crime were committed. Mercer v. State, 17 Tex. App. [452], 465. According to the prosecutrix’s own testimony, this incestuous intercourse continued from the time she was about 11 years of age until she was about 22 years of age; that it was repeated once or twice a week during a period of about 11 years, and in the very presence of other members of the family, always in the very room where her own mother or brothers or sisters were sleeping. That this should have continued that period of time without the consent of the prosecutrix is to the ordinary mind unnatural, unreasonable, and incredible. We cannot 'believe it possible that those acts could have occurred as testified to by the prosecutrix without her consent. The irresistible conclusion from all of the evidence is that she was an accomplice in the performance of the act, if it occurred, for which this defendant was convicted. As bearing upon this question, see Pate v. State (Tex. Cr. App.) 93 S.W. 556.
“Under the facts of this case, the court ought to have instructed the jury that according to the testimony of the prosecutrix she was an accomplice. We think the correct rule is laid down in that regard in the case of Clifton v. State, 46 Tex. Cr. R. 18, 79 S.W. 824, 108 Am. St. Rep. 983, a case similar in some respects to the one at bar. The illegal acts alleged there covered a period of some six or eight years, and the prosecutrix denied that she engaged in the sexual intercourse with the same purpose and intent as the defendant, that she was neither desirous nor willing to do it, that she did so because she was under defendant’s influence, and whatever he did she thought would be right, and the court there charged the jury similarly to the charge above quoted, and the court said:
“ ‘Now, the jury evidently understood from the charge that, unless shei engaged in the intercourse with the same desire as did the appellant, she would not be an accomplice. This is not the true criterion under the facts of this case. If she submitted to his embraces, as she says, at intervals for a considerable period of time and kept silent, she would nevertheless be an accomplice, although she did not willingly enter into it with the same desire as did appellant.’
“And the court held that said charge was error.
“So, under the facts of this case, the court ought to have instructed the jury that the prosecutrix, according to her own testimony, was an accomplice, and that they could not find the defendant guilty upon the uncorroborated testimony of the prosecutrix. In other words, her testimony in regard to the illegal act must be corroborated.”

See Gillespie v. State, 49 Tex. Cr. App. 530, 93 S.W. 556; Tate v. State (Tex. Cr. App.) 77 S.W. 793.

We believe that under the facts in this case the court should have determined, as a matter of law, the question as to whether or not the evidence showed that prosecu-trix had voluntarily committed the act and should have told the jury that under such testimony she was an accomplice and it was necessary for her testimony to be corroborated. We have read some cases in which the court holds that this question may be submitted to the jury as a question of fact, but under the holding of the Pruett Case, supra, we think the court should have determined this question as a matter of law.

In reversing this case the court has taken into consideration the above instructions and has come to the conclusion that justice demands that a new trial be given in this case.

For the reasons hereinbefore stated the judgment of the district court of Creek county is reversed.

DAVENPORT, P. J., and DOYLE, J., concur.