text:
    BILLY VANN v. STATE.
    No. A-3738.
    Opinion Filed May 29, 1922.
    (207 Pac. 102.)
    (Syllabus.)
    1. Forgery — Evidence of Mere Conspiracy to Obtain Its Proceeds» Insufficient. Where a criminal statute defines the crime of “forgery” as the doing of some particular act or acts, the accused will be held amenable for the doing of only such acts as¡ come properly within the definition; and where the evidence fails to show that the accused committed the forgery, or aided or abetted in its commission, but shows that the accused, after the forgery was complete, conspired with the forger and other® to obtain the proceeds of the forgery, the accused will not be held amenable for the original offense.
    2. Same — Conspirator as Accessory After Fact. Under such circumstances, under our statute, he is an accessory (after the fact); only, and cannot be prosecuted as a principal, jointly or separately, for the original forgery.
    Appeal from District Court, Muskogee County; Benjamin B. Wbeeler, Judge.
    Billy Vann was convicted of forgery in tbe first degree and sentenced to seven years’ imprisonment in tie state penitentiary, and be appeals.
    Reversed.
    Gavin & Porter, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty, Gen., for tbe State.
   BESSEY, J.

Billy Vann, in this opinion referred to as tbe defendant, was, jointly witb W. A. Rentie, Tom Peters, Freddie Rentie, Roy Rentie, and Rebecca Mays, charged witb tbe crime of forgery in tbe first degree, by information filed on June 17, 1918. Tbis prosecution grew out of a conspiracy entered into between W. A. Rentie, Freddie and Roy Rentie, Rebecca Mays, and Tom Peters to .have Rebecca Mays, a young negro girl, impersonate one Katie Thompson, a Creek freedman allottee of land. It was agreed that Rebecca Mays should sign, execute, and acknowledge a deed to 80 acres of tbe Katie Thompson allotment, and that tbe conspirators should collect tbe purchase money, to be divided among themselves for their •own use and benefit. Pursuant to tbis conspiracy, Rebecca Mays represented to J. A. Evans, agent for J. C. Smith, that she was Katie Thompson and pretended to sell tbis particular 80 acres of land to Smith, impersonating Katie Thompson and signing her name to the deed, acknowledging its execution as Katie Thompson, and receiving therefor a part of the agreed purchase price from Evans. The balance of the purchase price, about $1,100, was to be paid so soon as the abstract of title was examined and approved.

After the forgery of this deed as stated, on the 18th day of May, and after the deed had been delivered and recorded on the 20th day of May, Evans, the agent of the grantee named in the deed, not being satisfied that the grantor was indeed Katie Thompson, inquired of Billy Vann, this defendant, whether he knew Katie Thompson. The defendant stated -that he knew Ned Thompson well and knew that he had a daughter. The evidence is conflicting as to whether the defendant knew that the daughter’s name was Katie. In order to avoid paying, the balance of the purchase price to the wrong person, on the 21st day of May Evans .requested the defendant Vann to go with him to the place.where Rebecca Mays was staying in Muskogee, for the purpose of identifying her as Katie Thompson. Evans, Fred Rentie, W. A. Rentie, Tom Peters and the defendant drove to the place where Rebecca Mays was, and the defendant identified her, or partially identified her, as being Katie Thompson. There is evidence tending to show that for this identification Vann was to be compensated by payment to him of a part of the unpaid balance of the purchase price.

Later, upon further investigation, Evans ascertained that Rebecca Mays had impersonated Katie Thompson, and he thereupon caused the arrest of all the parties implicated in the conspiracy. Fred Rentie, Roy Rentie, and Rebecca Mays pleaded guilty to. the information. As to what disposition was made of the charge against the other defendants does not appear of record here.

The charging part of the information upon which the conviction of this defendant was based recites that the defendants, naming them, did on the 17th day of May, 1918, knowingly, willfully, unlawfully, fraudulently, falsely, and feloni-ously make and forge a certain deed and instrument in writing, the same purporting to be the act and deed of one Katie Thompson and purporting to convey the rights and properties of the said Katie Thompson in the land described' therein, with the unlawful and felonious intent to defraud J. C. Smith.

It is urged by the defendant that there is no testimony in this record indicating that he was in any way connected with the original conspiracy to forge this instrument; and that he had nothing whatever to do with the transaction until after the instrument was forged, delivered, and recorded; and that the testimony is therefore wholly insufficient to support the verdiet as to this defendant, finding him guilty of forgery.

A careful examination of all tbe evidence supports the claim that this defendant had nothing whatever to do with this transaction until after the deed had been forged, delivered, and recorded. This brings us to the question of whether the defendant can be held upon a charge of forgery where he participated only in the fraudulent scheme to procure money by reason of a forged deed, after the deed had been uttered, delivered, and recorded by means of the scheme perpetrated by the original conspirators.

Section 2104, E. L. 1910, is as follows:

“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 2105 defines “accessories” as follows:

“All persons who, after the commission of any felony, conceal or aid the offender, with knowledge that he has committed a felony, and with intent that he may avoid or escape from arrest, trial, conviction, or punishment, are accessories.”

Section 2107 provides for the punishment of accessories:

“Except in cases where a different punishment is prescribed by law, an accessory to a felony is punishable by imprisonment in the state penitentiary not exceeding five years, or in a county jail not exceeding one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.”

It will be observed that this defendant was not prosecuted as an accessory, but was prosecuted as a principal, under section 2621, E. L. 1910, which is, in part, as follows:

“Any person who, with intent to defraud, forges, counterfeits or falsely alters:
“First. Any will or codicil of real or personal property, or any deed or other instrument being or purporting to be the .act of another, by which any right or interest in real property is, or purports to be, transferred, conveyed or in any way -changed or affected. * * *
“Is guilty of forgery in the first degree.”

The gist of the offense under this section of the statute is the uttering of the false or forged instrument, coupled with the intent to defraud. Actual fraud need not in fact be alleged or proved. The crime is complete so soon as the false or forged signature is made, with the fraudulent intent, even though that intent may fail of realization. Arnold v. State, 15 Okla. Cr. R. 519, 178 Pac. 897; 26 Corpus Juris, 906, 907; 12 R. C. L. 152.

In the case of State v. Lingafelter, 77 Ohio, 523, 83 N. E. 897, it was held that, according to the Ohio statutes (like our -own), whoever before the consummation of an offense aids, ¿abets, or procures another to commit the offense, may be prosecuted and punished as if he were the principal offender; but that, where one is indicted and placed on trial for the -crime of forgery, and the evidence fails to show that the ac-cused committed the forgery or aided and abetted in its commission, but tends to prove that said offense had been committed by another and that the accused person performed acts in the interest of the forger for the purpose of covering up his forgery and of preventing his detection and punishment, such ■person cannot be convicted of the forgery. We see no distinction in the application of the principle under consideration where a forgery is committed by a number of persons acting -together and where the forgery was committed by one acting alone. If Eebecea Mays, acting alone, had committed and •consummated this forgery, clearly a subsequent conspiracy formed at a later day with Bill Vann to divide the benefits of -the forgery would not have made him a party to the forgery.

Now, if the defendant and original conspirators had been charged with the crime of false pretense or with criminal conspiracy, any person joining in, aiding and abetting in the unlawful enterprise before its consummation would be guilty as a principal; but this rule of law cannot be invoked where the crime charged is one that has been fully consummated and the criminal object of the conspiracy to commit the crime charged is at an end before the defendant is in any way implicated in the enterprise, or has any knowledge of it; any person who thereafter seeks to profit by reason of the unlawful enterprise is guilty, if at all, of some other offense. State v. Lingafelter, supra.

If there are two or more independent felonious conspiracies entered into by some of the parties, the participants in either will be held for the results of only the conspiracy in which he may have participated, and will not be held accountable for another conspiracy with which he was not connected, although some of the parties took part in both conspiracies.

Under our statute above quoted, section 2104, R. L. 1910, making accessories before the fact principals, there are two things that must concur in order to justify the conviction of one as an accessory before the fact: First, he must have advised or urged the parties, or in some way aided them to commit the offense, although not present when the offense was committed; second, the crime must have actually been committed by the principal.

All persons who, after the commission of the felony, conceal or aid the offender, are accessories. From this it will be seen that an accessory after the fact, the only kind known under our law, is not an accomplice nor a coeonspirator. One indicted for the crime of robbery as á principal cannot be convicted of the offense charged in the indictment if the evidence shows that he was only an accessory after the fact. People v. Gassaway, 28 Cal. 405; Bradley v. State, 2 Ga. App. 622, 58 S. E. 1064; People v. Chadwick, 7 Utah, 134, 25 Pac. 737.

There is an important and material difference between an .accessory before the fact, in our state a principal, and an accessory after the fact. If the accused is found guilty as an accessory to the crime before its commission, he may be punished as a principal; but, if a person be found guilty as an ac•cessory after the fact, the statute provides another procedure and penalty. State v. Phillips, 18 S. D. 1, 98 N. W. 171, 5 Ann. Cas. 761, and notes; State v. Umble, 115 Mo. 452, 22 S. W. 378; Wharton’s Crim. Evidence, § 440; 1 R. C. L. 148.

Where a criminal statute by express terms defines a crime .as the doing of some particular act, the accused will be held amenable for the doing of only such acts as come properly -within the definition. An accessory, under our statutes, is not so connected with the crime, and is only connected with -the offender and his interests after the offender has eommit-■ted the original offense. Accessories therefore cannot be guilty of the commission of the main offense. State v. Strong, 52 Tex. Cr. R. 133, 105 S. W. 785.

In this ease there is nothing in the record to show that ■this defendant had anything to do with or had any knowledge of the execution of the forged deed or of the scheme to forge ..such instrument prior to its execution, acknowledgment, and delivery. He became implicated in the affairs of these con-spirators after the deed was delivered and recorded, by forming and entering into another conspiracy with those implicated in the forgery, whereby they were to procure the balance of the purchase price of the land. By his conduct in confirming the statements of those concerned in the forgery, to the effect -that Rebecca Mays was in fact Katie Thompson, he secured a further payment on the purchase price of the land, and the conspirators expected thereby to procure the entire balance of such purchase price.

The defendant was not charged as an accessory after the fact or with criminal conspiracy to defraud, as principal. He was charged with forgery in the first degree. The evidence and the instructions of the court related to that offense alone. The court instructed the jury, in part, as follows:

“Any person who, with intent to defraud, forges, counterfeits, or falsely alters any deed or other instrument purport-to be the act of another, by which any right or interest in real property is, or purports to be, transferred, conveyed, or in any way changed or affected, is guilty of forgery in the first degree.”

To the same effect are the allegations in the information. It follows, therefore, that before this defendant can be held for forgery he must in some way be shown to have been culpably implicated in the forgery or the conspiracy to perpetrate the forgery before it was consummated. An independent crime or conspiracy to profit by the forgery after its consummation will not relate back to the original conspiracy, so as to make him a principal as an aider or abettor.

We conclude, therefore, that the defendant, Billy Vann, was not guilty of the crime of forgery by aiding and abetting those implicated in this forgery, for the simple reason that he did not join in or aid in that transaction. The evidence does disclose a culpable and felonious intent to defraud, for which he should have been prosecuted in an appropriate separate action. For the reasons stated, the other errors urged by the defendant need not be noticed.

The cause is reversed and remanded for further action not inconsistent with this opinion.

DOYLEi, P. J., and MATSON, J., concur.


source: Caselaw Access Project

author: BESSEY, J.

license: Public Domain

text:
    J. V. HOLLINGSHEAD v. STATE.
    No. A-3831.
    Opinion Filed May 3, 1922.
    Rehearing Denied June 7, 1922
    (207 Pac. 104.)
    (Syllabus.)
    1. Evidence — Declarations of Coconspirators. After a conspiracy is shown to exist all acts of the conspirators in furtherance of the conspiracy, and all declarations of the conspirators, or any of them, touching upon the subject of the conspiracy before the object of the conspiracy is consummated or its purposes abandoned, are competent against the one on trial.
    2. Evidence — Where Conspiracy Exists Evidence of Thefts Preceding Particular Theft Admissible. Where there is a conspiracy to perpetrate a series of systematic thefts, and the thefts are consummated pursuant to the conspiracy, and the accused is prosecuted for one particular theft of the series, evidence of the thefts preceding the particular theft, as well as of those follow-circumstances of the particular crime charged. ing, so long as the conspiracy continues, are competent to explain motive, intent, a common scheme or plan, elucidating the
    3.- Same — Testimony of Independent Theft Inadmissible. Testimony concerning an independent theft of an automobile committed by a coconspirator for the purpose of fleeing from justice or for his own use, not a part of the conspiracy, is inadmissible.
    4. Evidence — Accomplice's Testimony — Corroboration, 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 his testimony as will tend to connect the defendant with the commission of the offense.
    5. Appeal and Error — Harmless Error — Evidence of Independent Theft by Cooonspirator. The evidence concerning an alleged independent theft by a coconspirator examined, and held not prejudicial.
    Appeal from District Court, Garfield Comity; James B. Cullison, Judge.
    J. V. Holliugsbead was convicted of tbe larceny of an automobile and sentenced to a term of 15 years in tbe state penitentiary, and be appeals.
    Affirmed.

      H. J. Sturgis, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and R. E. Wood, Asst. Atty. Gen., for the State.
   BESSEY, J.

J. Y. Hollingshead, plaintiff in error, in this opinion referred to as the defendant, was on January 15, 1920, in the district court of Garfield county convicted of the larceny of a Buick automobile on July 8,1919, and by the judgment of the court rendered on the verdict, February 15, 1920, his punishment was fixed at confinement in the state penitentiary at McAlester for a term of 15 years. After the overruling of a motion for a new trial the defendant appeals.

The outstanding facts gleaned from this record tend to show that C. C. Blasdell, W. W. Garrett, Quincy Kygar, the defendant, Hollingshead, and state’s witness, O. R. Sams, during the summer of 1919 were implicated in the theft of a large number of automobiles, their bases of operation being at Enid, Okla., and Kansas City, Mo. Oscar Sams was a married man of about 25 years of age, a farmer who for several years lived on a farm near the eastern line of Garfield county. The defendant Hollingshead formerly lived on a farm near Hayward, in the eastern portion of the same county. Prior to the summer of 1919 these two had known each other for some four or five years. In February, 1919, defendant, Hollingshead, was employed by Blasdell as an automobile mechanic. Blasdell at this time had an interest in an oil lease some distance from Enid, where he had an office. He was also engaged in selling oil stock and in buying and trading secondhand automobiles. Hollingshead’s duties were to repair and care for these cars, make trips to this oil lease and elsewhere, and do such other miscellaneous work as Blasdell might require.

Oscar Sams, as chief witness for the stale, testified that in the month of May, 1919, he and defendant Hollingshead met on the streets of Enid and there had some conversation abont a new Ford car parked near by in the street, and that in the course of this conversation Hollingshead told him that if he would bring in Ford cars of that character and put them in BlasdelPs barn he or Blasdell would pay Sams $125 for each car so delivered; that Sams finally agreed to this proposition, and, pursuant to the arrangement, went to the town of Garber and stole a practically new Ford ear belonging to a Mr. Leslie. He brought this car to Enid, where Hollingshead was waiting for him, and they together put the car in Blasdell’s garage. A short time thereafter Blasdell sold this car to a Mr. Hoff, a farmer near Garber. In the meantime the number on the engine block had been filed off and changed. Later the car was recovered from Hoff and restored to the owner.

Thereafter’ numerous cars were stolen by Sams at various times and places and delivered to Blasdell at his barn or garage, or at the barn of Y. W. Garrett, if Blasdell’s barn did not have room for them. In nearly every instance the numbers on the engine block were filed off and other numbers substituted. This process was termed ‘‘vaccination” by the conspirators. Later on it was agreed by Sams, Hollingshead, and Blasdell that Sams should procure better and higher priced cars, and the base of delivery and distribution was changed from Enid to Kansas City.

The particular car here in question, being a Buick car belonging to a Mr. Gannon, of Enid, was stolen by Sams from the streets of Enid and immediately driven by him to Kansas City, where he arrived about noon on July 9th and placed the car in the Cook & Nelson Garage, pursuant to a previous understanding with Blasdell. At this time both Hollingshead and Blasdell were in Kansas City, and on the afternoon of July 9th defendant, Hollingshead, Blasdell, Sams, and one “Blackie” Jones took this car from the garage out into the country and changed the engine number and the car number with tools and dies which they had taken with them for that purpose. This car was sold by Blasdell to S. Hermans, a tail- or in Kansas City, on July 10th, and was later recovered from him by Gannon, the owner.

It would extend this record unnecessarily to relate in detail the circumstances of the theft of each of the 12 or 15 cars which were stolen, handled, and recovered during the months of June and July, 1919. Over the objections of the defendant, Sams was permitted to testify to the theft of another car on July 14th, several days subsequent to the theft of the Buick car here in question. This car was also put in the Blasdell Garage, and on the 15th he put yet another stolen car in this garage. These cars were both sold and recovered later. After the recovery of some of the stolen cars sold by Blasdell, Blas-dell was arrested in Kansas City and brought back to Enid on July 22d, charged with automobile theft.

The testimony of Sams, a confessed accomplice in this-conspiracy to steal automobiles, was corroborated in many details by the admissions of defendant, Hollingshead, Blasdell, and by the testimony of disinterested witnesses, some of which were as follows:

Mrs. H. S. Cook, wife of one of the proprietors of the Cook & Nelson Garage in Kansas City, testified that Blasdell and Hollingshead were together a number of times at the garage about the 9th and 10th of July, 1919. She identified Sams as the man who brought in one or two cars which were, afterwards shown to be stolen property, one of these cars being the Buick here in question. She identified a check or ticket made out by her and placed on this particular Buick .ear, showing the date of its reception and the hour at which it was taken out and the hour when returned, with the notation on the card, “Blasdell Buick,” that Blasdell had told her that lie was looking for some ears in, which he claimed he was getting in trades.

Harry Doyle, a police sergeant at Kansas City, testified that Blasdell when arrested had a grip with dies in it, such as were used in stamping numbers on automobile engine blocks. ¡En this he was corroborated by Policeman Allen, of the Kansas City police force, who testified further that these dies fitted exactly the changed numbers on the engine and on the frame of the Buick car in question.

A part of the register of the Kupper HoteFin Kansas City, beginning with the date of July 1, 1919, and extending to July 15th, was introduced in evidence, showing the names of Blas-d'ell, Kygar, O. R. Sams and “Slim Hollingshead” as being registered there on the dates on which Sams testified to meeting .these men in Kansas City.

With reference to transactions at Enid, G. M. Bellaires, a deputy sheriff for Garfield county, testified that he found a stolen ear in Blasdell’s garage, that when he found it the numbers on the car had not been changed, and that during the íáme be was returning to town to get another driver for his ear the stolen car disappeared from the garage. This was one of the cars Sams testified to having taken, and the car was afterwards found on the streets of Enid, identified, and recovered by the owner.

Defendant, Hollingshead, admitted that he was working for Blasdell from February until July 17, 1919; that he was employed to do any work needed on Blasdell’s cars; that at this time Blasdell was engaged in handling secondhand cars; ¡that he went to Kansas City on the evening of July 7th to ■drive back a Dodge roadster for Blasdell; that Kygar went with him to drive down a Cadillac roadster from some point an Nebraska. Defendant admitted sleeping at the Kupper Hotel on the night of July 8th, as shown by the register. Defendant admitted getting a ear ont of Blasdell’s bam in Enid, in Blasdell’s absence, and selling it on the authority of a long-distance telephone call from some unknown party. He admitted that this car had afterwards been identified as stolen property, and that he and Blasdell had been sued jointly for the recovery of the purchase price of this and other stolen cars. He also admitted1 that he was familiar with the use of dies to change numbers on engine blocks, and that he had made a number of such changes on cars not mentioned in Sams’ testimony..

C. C. Blasdell, as a witness for the defendant, admitted receiving in Kansas City both the Buick car here in question and a Cadillac ear which Sams testified to having stolen in Enid. He stated, however, that he purchased these cars, or traded oil stock for them, from two individuals, Mullens and Ward, neither of whom were produced in court. He admitted telling Mrs. Cook at the garage in Kansas City that he was expecting some cars in. He also admitted that a number of cars which he sold to various persons were subsequently recovered by the owners as stolen cars, and that he had been sued in a number of instances for the purchase price of such cars.

A further recital of corroborating testimony seems unnecessary. Sams’ testimony, on the whole, was amply corroborated, showing that a conspiracy existed among Sams, Hollings-head, Blasdell, and others to systematically steal and dispose of stolen cars.

There was testimony admitted concerning the theft of another Buick car by Sams after the arrest of Blasdell, about August 1st. This car may have been stolen by Sams for his own use and benefit, and not in furtherance of his previous conspiracy with. HollingsheacT and Blasdell. At this time Sams knew that Blasdell was in trouble about stolen cars, and Sams possibly stole this last car in order to make his escape to Colorado, where he went with the car — maybe for a much-needed rest and for recreation after his strenuous operations of the month previous. On the other hand, there was some reason to believe that he took this car with the intention of returning so soon as it was- safe to do so and resume his operations with the defendant and Blasdell.

It is earnestly contended by counsel for defendant that all of the evidence concerning the theft of the cars taken subsequent to the date of the alleged theft of the Buick car charged in the information, and particularly concerning the theft of this last car in which Sams made his trip to Colorado, was concerning independent thefts, not connected with the conspiracy, and that the reception of this testimony was highly prejudicial to the rights of the defendant.

There is nothing shown in evidence definitely indicating just when the operations of this conspiracy ended or were to end. This was not a conspiracy to steal merely this particular Buick car here in question; it was a conspiracy to steal as many cars as could' be safely stolen, and there was no time fixed as to when the joint enterprise shoulc end. Sams testified that after Blasdell got into trouble he told Sams to go ahead and get other cars as he had been doing, but to do so under circumstances indicating that .tsiasctell was the victim of a frame-up. We think the evidence, in connection with all the surrounding circumstances, was sufficient to indicate that this conspiracy had not ended, and that the evidence of the theft of this last car may have been admissible on this theory.

We do not intend to depart from the previously announced rule of this and other courts that acts done by a cocon-spirator, after the object of the conspiracy has been accomplished, are inadmissible in evidence against other coconspira-tors, unless the acts are so closely connected with the accomplishment of the object as to be explanatory of the common purpose. Koontz v. State, 10 Okla. Cr. 553, 139 Pac. 842, Ann. Cas. 1916A, 689; Spies v. People, 122 Ill. 1, 12 N. E. 865, 17 N. E. 898, 3 Am. St. Rep. 320, notes 487; 12 C. J. “Conspiracy,” §§ 228-230.

Without deciding whether this evidence was admissible or not, we think that under the circumstances here its reception was not prejudicial to the defendant. Among other reasons, we are justified in this conclusion by the fact that in a companion ease, being case No. A-3790, Hollingshead v. State, 21 Okla. Cr. 315, 207 Pac. 108, just decided, this same defendant was tried for the theft of the Cadillac car mentioned in this record, being one of the series of thefts appearing in this record, the state avoided any reference to the theft of the Buick car taken by Sams to Colorado; yet counsel for defendant, the same attorney representing the defendant in this case, on cross-examination of Sams examined him in detail as to the theft of this Buick car last stolen, evidently for the purpose of attacking his credibility as a witness by showing that he was a thief on his own account.

It has been often held by this court that the testimony of an accomplice need not be corroborated in every particular. The corroboration is sufficient if it covers the material portions of his testimony. If such corroboration shows that the accomplice has testified truthfully in many particulars, the jury will be justified in inferring that he has testified truthfully concerning other matters about which there is no corroboration. Section 5884, R. L. 1910; Ryal v. State, 16 Okla. Cr. 266, 182 Pac. 253; U. S. v. Lancaster (C. C.) 44 Fed. 896, 10 L. R. A. 333.

Complaint is made of certain language used in instruction No 9, viz.:

“But evidence of other crimes is competent to prove the specific crime charged when it tends to establish motive, intent, * * * a common scheme or plan of two or more crimes so related to each other that proof of one tends to establish the other.”

The language just quoted, considered along with the two instructions which immediately follow, relating to conspiracy and the testimony of accomplices, fairly states the law applicable to this ease.

One cannot read this record without being impressed that the defendant, Sams, and Blasdell were members of an organized syndicate engaged in the systematic theft of automobiles. Twelve or fifteen stolen ears, including the car here in controversy, were handled by these men in the course of one month. So far as this record discloses, with the possible exception of one car, this seems to have constituted the total business for that period.

As we see it, the testimony of Sams was amply corroborated in many material particulars by disinterested witnesses, by record evidence, and by the admissions of the defendant and of his witnesses.

The judgment of the trial court is therefore affirmed.

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


text:
    J. V. HOLLINGSHEAD v. STATE.
    No. A-3790.
    Opinion Filed June 6, 1922.
    Rehearing Denied June 7, 1922.
    (207 Pac. 108.)
    (Syllabus.)
    1. Larceny — Evidence Indicating Systematic Organized Conspiracy to Steal Automobiles. The evidence examined, and held indicative of a systematic, organized conspiracy between defendant and others to steal automobiles, among others, the car here in controversy.
    2. Evidence — Evidence of Theft of Other Cars Admissible. Evidence of the theft of other cars about this time, pursuant to this, conspiracy, was properly admitted.
    3. Evidence — Testimony of Accomplice Corroborated. The testimony of an accomplice, a witness for the state, was sufficiently corroborated.
    Appeal from District Court, Garfield County; J. C. Rob-berts, Judge.
    J. Y. Hollingsbead was convicted of tbe larceny of an automobile, and be appeals.
    Affirmed.
    H. J. Sturgis, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and R. E. Wood, Asst. Atty. Gen., for the State.
   BESSEY, J.

J. V. Hollingshead, plaintiff in error, was on the 3d day of December, 1919, in the district court of Garfield county, convicted of the larceny of a Cadillac automobile on July 6, 1919, and his punishment was fixed at confinement in the state penitentiary at McAlester for a term of 12 years; After the overruling of a motion for a new trial plaintiff in error appeals.

The record in this case is voluminous, containing 811 pages. This is a companion case to case No. A-3831, 21 Okla. Cr. 306, 207 Pac. 104, just decided by this court, involving the same parties and the same or similar facts and chain of cir-cumstanees, growing out of the alleged theft of a large number of automobiles by the plaintiff in error and his accomplices. Without reciting the facts in detail, it is sufficient to say that the evidence contained in the record strongly indicates that the Cadillac automobile in question was stolen by the plaintiff in error, acting with a band of coconspirators, organized for the purpose of stealing this and other cars and operating under a definite plan and system. Within a month or a little over, from the latter part of May until early July, 1919, this band handled 12 or 15 stolen cars, among them the car here in controversy.

According to the testimony on the part of the state, this car was taken from the garage of the owner, Eugene MeConkay, at Enid, about midnight of July 6, 1919, by the plaintiff in error and Oscar Sams. When they first attempted to remove the car, they found the ignition locked, so that it could not be moved under its own power. The car was moved some distance away, where the ignition switch was taken apart and rewired, so as to enable them to run the car by means of its own mechanism. The tank was then filled with gasoline and the car was driven by Sams to Kansas City, and there delivered to another accomplice, Blasdell. Within a day or two the car was sold in Kansas City by Blasdell, and later recovered by the owner.

To give all the details of this conspiracy, including the theft of the several different cars, the methods of operation of this band of conspirators, and the corroborating circumstances, would prolong this opinion to an unnecessary length. The testimony in this case is very like the testimony in the companion case referred to above, to which, for the sake of brevity, reference is here made. In this case the testimony corroborating the state’s witness Sams, a confessed accomplice, is stronger and more complete than in tlie companion case. In this case, unlike the other, the testimony concerning the stolen ear used by Sams to make the. trip to Colorado was brought out on cross-examination of the witness Sams by counsel for the plaintiff in error. This part of the testimony probably operated to the advantage of plaintiff in error and was doubtless brought out by counsel for that purpose. At any rate, it was done at his solicitation, on account of which .he cannot now complain.

For the reasons stated above and the reasons stated in the companion opinion, the judgment of the trial court is affirmed.

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


author: PER CURIAM.

text:
    C. C. BRUCE v. STATE.
    No. A-3982.
    Opinion Filed June 12, 1922.
    (207 Pac. 1118.)
    Appeal from District Court, Carter County; Thos. W. Champion, Judge.
    C. C. Bruce was convicted of manslaughter in the first degree, and sentenced to four years’ imprisonment in the peni-tentmry, and he appeals.
    Appeal dismissed on appellant’s motion, and cause remanded, with direction to cause judgment and sentence to be executed.
    Champion & George and Brown & Williams, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, C. 0. Bruce, was by information charged with the murder of one Sidney Jordan, alleged to have been committed in Carter county on or about the 6th day of December, 1919, by shooting him with a pistol. Upon bis trial the jury found him guilty of manslaughter in the first degree, and fixed bis punishment at four years’ imprisonment in the penitentiary. From the judgment rendered on the verdict on the 26th day of November, 1920, he appealed by filing in this court on May 18,1921, a petition in error with case-made. His counsel of record has filed a motion to dismiss the appeal herein. The motion to dismiss is sustained, the appeal herein dismissed, and the cause remanded to the trial court, with direction to cause its judgment and sentence to be carried into execution. Mandate forthwith.


author: BESSEY, J. MATSON, J.

text:
    MRS. L. D. McMASTERS v. STATE.
    No. A-3747.
    Opinion Filed June 13, 1922.
    (207 Pac. 567.)
    (Syllabus.)
    1. Constitutional Law — Police Power — Regulation of Practice of Communicating with Departed Spirits Through a “Medium” for Hire. The regulation or suppression of the art, practice, or profession of communicating with departed spirits by a person known as a “medium” while in a state of trance, who imparts such communications for hire, whether it be done pursuant to a system of philosophy, religion, legerdemain, or metaphysical science, is within the police power of the state.
    2. Same — Practice not Protected by Constitutional Provisions Relating to Free Exercise of Religion. Assuming that the practice of communicating with departed spirits is a part of an established religion, such practice, if inimical to the good order and general welfare of the community or in conflict with the general penal laws, is not within the purview of the provisions of the federal and state Constitutions, relating to the establishment of religion or the free exercise thereof.
    3. Disorderly Conduct — Fortune Telling — Whether Practice of Spiritualistic Communication Should Be Classified as Religious Held not Ascertainable. Whether the practice of spiritualistic communications should be classified as religious or philosophical, or is a kind of speculative psychic phenomenon or exercise, cannot be conclusively ascertained from this record.

      4. .Constitutional Law — Statutes May Not Interfere with Religious Beliefs, but with Practices. Laws are made for the government of actions, and, while they cannot interefere with mere religious beliefs, they may with practices.
    Appeal from County Court, Oklahoma County; W. R. Taylor, Judge.
    Mrs. L. D. McMasters was convicted of fortune telling, and she appeals.
    Affirmed.
    Gustave A. Erixon, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty Gen., for the State.
   BESSEY, J.

This action is an outgrowth of an alleged spiritualistic “reading” by a “medium” in a state of trance, purporting to convey a message to one Bessie Jones from the spirit of Minnehaha, a legendary Indian girl as found in Longfellow’s poem Hiawatha. Bessie Jones, an attache of the county attorney’s office, for the purpose of laying a foundation for the prosecution, went to the residence of the medium, Mrs. McMasters, in Oklahoma City, and there solicited the reading, which was given in consideration of the payment of $1. The medium, after going into a trance, got into communication with the departed spirit of Minnehaha, and conveyed to Miss Jones a message, part of which was as follows:

“Q. What did she say? A. That I wasn’t working at the present time, but that I was going to have a job offered me right away, a good job, and that I would take it; and then she said I was going to take a trip right away. 'And she said I was going to meet a blond fellow — a blond-headed fellow — and also a black-headed fellow, and that this blond-headed fellow would come between me and the black-headed fellow, and that I was going to marry a wealthy man—
' “Q. Did she make any charge for that information? A. Yes, sir; she did.
“Q. State what else she did when you got ready to leave. A. When I got ready to leave she gave me six calling cards.
“Q. Did she ask you to do anything with them? A. No, sir. She gave me six calling cards and asked or said for me to give them to my friends.”

The statute under which this prosecution was brought (section 1, chapter 59, Session Laws of 1915) is as follows:

“It shall be unlawful for any pérson or persons, pretending or professing to tell fortunes by the use of any subtle craft, means or device whatsoever, either by palmistry, elair-voyancy or otherwise, plying his or her trade, art or profession within the state of Oklahoma, to make any charge therefor either directly or indirectly, or to receive any gift, donation or subscription by any means whatsoever for the same.”

For a violation of this statute a minimum penalty is provided of a fine in any sum not less than $50 and imprisonment for not less than 30 days. In this case the defendant was given the minimum punishment.

It is earnestly contended by defendant’s attorney, in an exhaustive and well-written brief, that this sentence should be set aside on the constitutional ground that her arrest and conviction were unlawful, as an interference with the free exercise of her religious beliefs and practices; that for a number of years she had been a member of the National Spiritualist Association, incorporated under the laws of the state of Oklahoma, and that she was regularly licensed to give spiritual advice to others; that many of the tenets, beliefs and practices of this cult are religious in their nature, including the practice of communicating with departed spirit's.

The declarations and principles, as contained in the constitution and by-laws of this association, are as follows:

(1) A belief in infinite intelligence.

(2) That the various manifestations of nature’s laws, physical or spiritual,-are the expression of this infinite intelligence.

(3) That a correct understanding of nature’s laws and living in harmony therewith is enjoined upon its members.

(4) A belief in the continuity and individuality of existence after death and the possibility of communication with departed spirits.

(5) A belief in the Golden Rule.

(6) That each individual’s happiness and moral responsibility is dependent upon obedience to nature’s psychic laws.

(7) That the privilege of reformation is continuous here, as well as in the hereafter.

Other excerpts from the constitution are as follows:

“The objects of said association shall be the organization of the various spiritual societies of the United States into one general association for promoting mutual aid and co-operation in the benevolent, charitable, educational, literary, musical, scientific, religious and missionary purposes and enterprises germane to the phenomena, science, philosophy, and religion of Spiritualism.”

death, as furnishing advice and spiritual instruction for our guidance, moral development and physical well-being; and that, to insure the best results, our mediums need protection and encouragement, and, in cases of indigence, financial aid; therefore, special funds should be set aside for such purpose,

“The ministry of Spiritualism shall consist of three ualism, as giving proofs of the continuity of life after so-called under the supervision of the board of trustees.”
“We recognize mediumship as the foundation of Spirit-classes, to wit: Pastors, licentiates and associate ministers.”

Ever since tbe dawn of bistory there have been those who have believed in the influence of good and evil spirits. The devil himself was a fallen angel, cast out of heaven. If, then, both good and evil spirits communicate with men, the character of the spirit messages will necessarily vary accordingly. Women desiring information concerning their amours should consult the spirit of Ruth, of Delilah, or of Cleopatra; men might well inquire of the spirit of King Solomon, of Henry the Eighth, or of Aaron Burr.

The writings of Dante, of Shakespeare and of Milton, as well as of the modern poets, abound with examples of the belief in spirits.

“Aerial spirits, by great Jove designed

To be on earth the guardians of mankind;

Invisible to mortal eyes they go,

And make our actions good or bad below.

They can reward with glory or with gold—

A power they by divine permission hold.”

—Hesiod.

“The spirits perverse, with easy intercourse,

Pass to and fro to tempt or punish mortals.”

—Milton.

Since both the federal and state Constitutions forbid the abridging of the freedom of conscience and religious liberty, we are confronted with a question whether, as a matter of law, the beliefs and practices of Spiritualism, as shown by this record, constitute a religion within the meaning of the federal and state Constitutions; and whether, if it is a religion, the practice of communicating with departed spirits through a spiritualist medium is within the purview and protection of the Constitution.

It has been held that “religion” has reference to man’s relation to Divinity; to reverence, worship, obedience, and submission to the mandates and precepts of supernatural or superior beings. In its broadest sense it includes all forms of belief in the existence of superior beings, exercising power over human beings by volition, imposing rules of conduct with future rewards and punishments. Davis v. Beason, 133 U. S. 333, 10 Sup. Ct. 299, 33 L. Ed. 637; 4 Words and Phrases, Second Series, p. 253; People v. Board of Education, 245 Ill. 334, 92 N. E. 251, 29 L. R. A. (N. S.) 442, 19 Ann. Cas. 220; State v. Amana Society, 132 Iowa, 304, 109 N. W. 894, 8 L. R. A. (N. S.) 909, 11 Ann. Cas. 231.

Applying these definitions and authorities to the facts shown by this record, we admit our inability to decide conclusively whether this is a religion, or whether it is a mere philosophy or a system of metaphysical speculation. We are inclined to lean toward the latter view, but we have' not been sufficiently advised to decide that point. We do affirm that this record tends to show that, whether religious in its nature or not, it is a system of speculative philosophy, attended with superstitious credulity and in the instant case tinged with hypocrisy. This association prescribes no confession of religious faith; no rules of conduct, directing what its members shall do or refrain from doing, except as before stated. Its principles of philanthropy and its belief in the Golden Buie would apply to the Masonic Order, the Elks, the Botary Club, or the Boy Scouts, and like organizations, none of which are considered religious organizations.

But, assuming that it is a religion, religious liberty does not include the right to introduce and carry out every scheme or purpose which persons see fit to claim as a part of their religious system. No one can stretch his liberty so as to interfere with that of his neighbor, or violate police regulations or the penal laws of the land, enacted for the good order and general welfare of all the people. Liberty founded by the fathers was not license unrestrained by law. Owens v. State, 6 Okla. Cr. 110, 116 Pac. 345, 36 L. R. A. (N S.) 633, Ann. Cas. 1913B, 1218; Davis v. Beason, supra; Frazee Case, 63 Mich. 396, 30 N. W. 72, 6 Am. St. Rep. 310; Murphy v. Ramsey, 114 U. S. 15, 5 Sup. Ct. 747, 29 L. Ed. 47; State v. Neitzel, 69 Wash. 567, 125 Pac. 939, 43 L. R. A. (N. S.) 203, Ann. Cas. 1914A, 899.

In the Davis Case Mr. Justice Field, quoting Mr. Justice Waite in an earlier case (Reynolds v. U. S., 98 U. S. 145, 25 L. Ed. 244), said:

“There have been sects which denied as a part of their religious tenets that there should be any marriage tie, and advocated promiscuous intercourse of the sexes as prompted by the passions of their members. * * * Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs, * * * they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice ? Or, if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond' the power of the civil government to prevent her carrying her belief into practice? So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect ‘to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”

Even if the purposes of this organization are religious in their nature, it is difficult to see how the practice of giving “readings” or telling fortunes concerning the mating inclinations of men and women could be religious, in any sense. This medium, while in a trance and assuming to speak for. Minnehaha, told Bessie Jones, whom she supposed to be a lovelorn girl, that she would soon meet an attractive blond boy, and that later a brunette would supplant him in her affections; that she would soon go on a long journey; that she would eventually marry a man of wealth, etc. All of which sounds very secular to this court. It seems very like a Grypsy fortune teller, or the reading of- the palm by some wrinkled old hag, or the interpretations of a crystal gazer in a freak side show. Doubtless it was this species of hypocrisy and legerdemain that this statute was intended to suppress. An innocent practice or entertainment, whether of a religious nature or not, may be regulated or suppressed where the tendencies and temptations to pervert it into evil channels is manifest, and where the evil is likely to overbalance the good. Fantastic philosophers and religious zealots, like other people, must conform to wholesome police regulations. 6 R. C. L. Constitutional Law, § 237.

On the other hand, there have been and now are many persons of extraordinarily high mentality and intelligence who implicitly believe that communication' can be had with departed spirits through a spiritualist medium. One of the most prominent adherents of this faith, A. Conan Doyle (who should not be confused with Thomas H. Doyle, presiding judge of this court), claims that departed souls are enveloped with a kind of external body, capable of being photographed, and that such photographs are in existence; also, that he has the physical writing of a letter written by a spirit friend. Maybe so — but, like Bessie, the stool pigeon, we are somewhat skeptical.

It is not for this court, however, to judge of the merits or demerits of philosophies, cults, or religions; we are expected to decide the law so far as it relates to the concrete facts shown, in this record.. The legendary Minnehaha never existed in the flesh; hence a continuity of her spirit cannot exist in the spirit world. Unlike Conan Doyle, this medium produced no photograph of the spirit of Minnehaha. Her identity was not established. Some unknown, playful spirit may have deceived the medium, or she may have intended to deceive her client Bessie. Hiawatha and Minnehaha were creatures of the imagination of the poet Longfellow. It is a pretty, fascinating love poem, with a natural appeal to girls who long for romance in love. For example:

“As unto the bow the cord is,
So unto the man is woman.
Though she bends him, she obeys him,
Though she draws him, yet she follows—
Useless each without the other.
Thus the youthful Hiawatha,
Said within himself and pondered,
Much perplexed by various feelings;
Listless, longing, hoping, fearing,
Dreaming still of Minnehaha,
Of the lovely Laughing "Water
In the land of the Dakotas.”

If sure of her identity, it would be well worth a dollar of any girl’s money to have the benefit of the advice of the sparkling, romantic spirit of Minnehaha.

But the unrestrained practice of this art, or whatever it may be, is susceptible of abuse within the power of the Legislature to suppress. Its mandates, within constitutional limitations, bind this court. Appeals to the spirit world might avail before the case reaches us, but here we have no jurisdiction over any spirits except those banned by the prohibitory law, such as “Bourbon,” “Mountain Dew,” “Forked Lightning,” and like distillates — like those in the spirit world, some good and some bad.

The only practical appeal remaining is an appeal to the Governor, for executive clemency. Since no one was injured, we feel that executive clemency would be proper, at least to the extent of setting aside the jail sentence. The sentence imposed was the minimum provided by law, so that this court, on affirmance, is powerless to modify it. This case, on the law and the facts, should be affirmed; and it is so ordered.

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

MATSON, J.

(concurring). While A. Conan Doyle should not be confused “with Thomas H. Doyle, presiding judge of this court,” neither should Bessie, the medium’s patron, be confused with E. S. Bessey, associate judge of this court and writer of the opinion. I am reliably informed that there is no relationship either by affinity or consanguinity between either of the Doyles or either of the Besseys.

Verily, the spirit of regulation is abroad in the land. For some time most of the states have been regulating the mediums of communication between human beings such as the telephone and telegraph. Now this state proposes to regulate the mediums of communication with the spirit world. The maxim is, sic ad astra. Certainly, further than this we cannot go.

.Again, is the statute in question merely regulatory or is it prohibitory? Any ex-saloon keeper can explain the difference between regulation and prohibition. Can the state constitutionally prohibit communication with the spirit world, with which, so far as I am advised, we are at peace? If it cannot, can it, under the Fourteenth Amendment, deny the mediums of such communication a reasonable compensation for the services rendered? These queries appear to me to be pertinent in the instant case.

However,- assuming that the statute in question is not in contravention of the commerce clause of the federal Constitution, and that the state has power to regulate, I concur, because the medium in question had never filed her schedule or rates with the State Corporation Commission.


author: MATSON, J.

text:
    JOHN GOOD v. STATE.
    No. A-3788.
    Opinion Filed June 17, 1922.
    (207 Pac. 565.)
    (Syllabus.)
    1. Larceny — Knowingly Assisting Thief in Disposal of Stolen Property, One who joins with a thief and assists in "the asportation and disposal of stolen property, knowing at the time he does so that the other acting with him is in the act of carrying away the property of another, is equally guilty of th'e larceny.
    2. Appeal and Error — Harmless Error — Minor Errors in Instructions. A judgment of conviction will not be reversed, because of minor errors in the court’s instructions, where upon the defendant’s own testimony a conviction should have resulted.
    Appeal from District Court, Canadian County; James I. Phelps, Judge.
    John Good was convicted of grand larceny, and he appeals.
    Affirmed.
    A. G. Morrison, for plaintiff in error.
    George F. Short, Atty. Gen., and C. W. King, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from the district court of Canadian county, wherein John Good was convicted of the crime, of grand larceny and sentenced to serve a term of 18 months’ imprisonment in the state penitentiary. A short statement of the facts follows:

Waverly Barrett, a farmer living about 10 miles east of tbe city of El Reno, Canadian county, Okla., was tbe owner of a Studebaker automobile.. He kept tbis car stored, when not in use, in a garage on tbe farm, and tbe oar was equipped with five 32x4 automobile casings. Four of these casings were on tbe wheels, these were Goodrich casings. Tbe fifth, a new Ajax easing, was fastened to tbe rear end of tbe car on a bolder. In tbe latter part of May, 1919, all these casings were stolen from tbe car during tbe nighttime. Barrett last saw tbe casings on tbe car about 6 o’clock in the evening and when be went out to milk very early tbe next morning be noticed tbe casings were gone. It bad been raining, and the ground was damp and muddy. Barrett discovered tbe sboeprints of two men leading up to and away from tbe garage, and tracked these men over to tbe public highway, where a car equipped with tires tbe size used on Fords was seen to have stood. Barrett and some of bis neighbors followed tbe tracks of tbis car into tbe city of El Reno, where tbe tracks could not longer be followed because of the paved streets. Tbe loss was reported to tbe police of El Reno, and a search was made in that city tbe next morning for a car having a peculiar tread tire of tbe kind that made the track which these parties bad traced. This defendant was at that time operating a taxicab service in tbe city of El Reno. Tbe car operated by him bad a casing exactly like tbe one tbe parties bad followed.

Some time later two of tbe casings stolen from Barrett were found on an automobile of a man by tbe name of Jobe in the city of El Reno, and upon investigation it was learned that Jobe bad bought these tires from a man by tbe name of Griffith. A warrant of arrest was obtained for Griffith charging him with receiving stolen property. Griffith disappeared, was afterwards located in tbe state of Kansas, but returned to El Reno. After bis return, John Good and a boy about 16 yrs. old named Dean Halbert were jointly charged with this offense, on information apparently obtained from Griffith, as Griffith was a witness for the state in this trial, and testified that he and Milton Bruns had obtained these casings late at night from Halbert and Good in the southeast part of El Reno, that Halbert and Good had the casings in Good’s automobile, that they said they had trouble with the engine, and had telephoned into the city to Bruns to come out and get the casings, and Bruns had got Griffith to go out there with him. Bruns at that time was operating a motion picture machine in one of the theaters in El Reno, and part of these casings were taken back to that theater, and the others of them were taken by Griffith for use on an automobile that he owned, but when the casings would not fit his car he sold them to-Jobe, and in that way the casings were traced back to the possession of' Halbert and Grood.

Good admits that' Griffith and Bruns got the casings from Ms car at the place and time testified to by Griffith, but he says that he was employed by Halbert in his capacity as a taxi driver to make a trip into the country; that he (Good) had no knowledge of what Halbert intended to do; that they left El Reno about 8 -.30 one evening, and drove out east of town quite a distance, when Halbert told him to stop; that Halbert got out of the car and commenced to load these casings into the car from a patch of weeds which was located at the side of the road; that he never asked Halbert anything about the casings, but at his request hauled him back to El Reno, but that when they got to the southeast part of town the engine stopped, and Halbert went and called Bruns and Griffith out there; that Bruns and Griffith came out there and took the casings; that he never had anything to do with the larceny of the casings, and never received any of the money derived from their sale; that he merely accepted, as a taxi driver, the usual compensation for making a trip of tbis kind; that, although he knew all about the fact that Griffith and Bruns had received these casings from Halbert, he never told any of the officers anything about it; that his reason for not telling anything about it was that he thought it would hurt his business. There are other minor facts and circumstances which are unnecessary to relate.

It is contended that this evidence is insufficient to sustain conviction. According to the testimony of the state’s witnesses two parties stole these casings. The defendant admits that he and Halbert went out there and got them. Defendant would have the jury believe that they had already been taken and hid in a patch of weeds before they went out there, but defendant’s story does not appear to be credible. Even under his own statement it must have been apparent to him that Halbert was committing a crime; that, when he loaded these casings into the defendant’s car, he was stealing them. All the surrounding circumstances were of such a suspicious character that the defendant must have known that Halbert was in the act of stealing these casings. Knowing that fact, he assisted him in the asportation of them. We believe the jury was justified in returning a verdict of guilty upon the defendant’s own testimony. One who joins with a thief and assists in the asportation and disposal of stolen property, knowing at' the time he does so that the other acting with him is in the act of carrying away the property of another, is equally guilty of the larceny. Brown v. State, 7 Okla. Cr. 678, 126 Pac. 263; Geo. Reed v. State, 22 Okla. Cr.-, 210 Pac. 311.

It is also contended that the trial court failed to instruct the jury fully on the ingredients of the crime of grand larceny. An examination of the instructions given leads us to conclude that the charge was sufficient, especially as counsel for the defendant requested no further instruction or instructions embracing the constituent elements of the crime.

It is also contended that the trial court erred in refusing to give the defendant’s requested instruction on circumstantial evidence. The trial court gave an instruction on circumstantial evidence which was a modification of the instruction requested. A judgment of conviction will not he reversed because of minor errors in the court’s instructions, where, upon the defendant’s own testimony, a conviction should have resulted.

The judgment is affirmed.

DOYLE, P. J., and BESSEY, J., concur.


text:
    HARVE POWELL v. STATE.
    No. A-3740.
    Opinion Filed June 19, 1922.
    (207 Pac. 570.)
    (Syllabus.)
    1. Receiving Stolen Goods — Information Sufficient. — -information examined, and held sufficient to charge the crime of receiving stolen property.
    2. Indictment and Information — Charging Crime According to Facts in Evidence at Preliminary Examination. — -Where preliminary examination is not waived and evidence is taken, the county attorney. is authorized to file an information in the trial court charging the crime according to the facts in evidence at the preliminary examination.
    3. Evidence — Lack of Corroboration of Accomplices’ Testimony— Receipt of Stolen Property. — For reasons for holding the evidence insufficient to support the conviction, see body of opinion.
    Appeal from Superior Court, Okmulgee County; R. E. Simpson, Judge.
    Harve Powell was convicted of receiving stolen property,. and he appeals.
    Reversed and remanded, with directions.

      Morgan, Pinkston & Hepburn, for plaintiff in error. .
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from the superior court of Okmulgee county, wherein Harve Powell was convicted of the crime of receiving stolen property, and sentenced to serve a term of 3 years and 6 months imprisonment in the state penitentiary.

It is first contended that the information is insufficient. The question of the insufficiency of the information was first raised by general demurrer, and secondly by,objection to the introduction of evidence, upon the ground that the information was not sufficient to charge the crime of receiving stolen property or any other offense under the laws of this ■state. The information follows the form approved by this court.in the case of Price v. State, 9 Okla. Cr. 359, 364, 131 Pac. 1102, and is sufficient.

It is next contended that the trial court erred in overruling the defendant’s plea in abatement on the ground that he had never been held to answer the particular offense of receiving stolen property. , This assignment of error is purely technical. It is urged that because the transcript of the examining magistrate discloses that after the preliminary examination the defendant was held upon the charge of “receiving and aiding in the sale of stolen property,” he was not held to answer to the charge of receiving stolen property. As the preliminary examination was not waived, the county attorney was authorized to file an information in the district or superior court charging the crime committed according to the facts in evidence at the preliminary examination. Williams et al. v. State, 6 Okla. Cr. 373, 118 Pac. 1006; Little v. State, 21 Okla. Cr. 1, 204 Pac. 305. Further, the, indorsement of the examining magistrate in the language above set out was sufficient and not misleading.

It is next contended that the trial court erred in overruling the defendant’s motion at the conclusion of the state’s evidence for a directed verdict of "not guilty.”

It is also contended that the evidence in this case is wholly insufficient to sustain the conviction, in that there is no sufficient corroboration of accomplice testimony to meet the requirements of the statute. These assignments of error involve a consideration of the entire evidence.

The defendant was jointly informed against with O. C. Hart and J. E. Cline with having—

■"unlawfully, feloniously, and knowingly received and bought from some person to the county attorney unknown * * * one five-passenger Ford touring car of the value of $500, the personal property of and taken from the possession of one Charles Cameron, the said Harve Powell and O. C. Hart and J. E. Cline well knowing the said property to have been stolen from the said Charles Cameron, ” etc.

The state took a severance and elected to try the defendant Powell first. On the trial the codefendants Hart and Cline voluntarily testified against this defendant, waiving all privileges and immunities.

If a conviction were justified in this state on the uncorroborated testimony of accomplices, this conviction should stand, as the testimony of Hart and Cline is sufficient, if believed, to authorize a verdict of guilty, but section 5884, Rev. Laws 1910, provides that—

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

Let us review the ^testimony of the various witnesses in the light of the requirements of the above statute.

Charles Cameron, the owner of the Ford touring car in question, merely testified to the theft thereof from his garage in the town of Haskell on the night of February 16, 1919, and also to the marks, etc., by which the car could be identified.

Boy Heaton testified that he lived at Haskell and was acquainted with the Ford touring car owned by Charles Cameron; that he went to Henryetta and saw the car in a building down by the fire department. This witness testified to nothing that tended to connect the defendant with the receipt of the car after its larceny.

J. B. Cline, codefendant, testified that—

He was a clerk in a grocery store at Henryetta, that he never bought a Ford car from this defendant, that on the morning of February 17, 1919, he went to the Miners’ National Bank to make a deposit, that some one called him, and he looked back and saw Powell and Hart and a fellow that gave his name as Green standing there. “I turned to Powell because Powell knew I was on a trade to sell a Studebaker car. He asked me if I had bought the ear yet. I said, ‘No.’ This fellow spoke up and said he had one to sell. I asked him what kind. He said five-passenger Ford, almost new. I asked him if he could make a bill of sale. He said, ‘Yes.’ I asked Powell if he would sign the bill of sale on this ear. He said he thought it was all right — would sign the bill of sale. We went and got a bill of sale, and then went back to Powell’s car, which was standing in front of the bank. We got in his car, drove down Main street to the Frisco Depot, went a block north, then turned west on Broadway one block, then four or five doors west on Trugeon, and Green was standing on a porcb there. He got in the ear, and we drove west on Trugeon until we reached Main street and Green said he would make out the bill of sale. He made it out. I paid him $250 for the car. I paid him in cash. The car at that time was just across the street from Hart’s house and a little west of Powell’s house. After that we started back to town in Powell’s car, Powell, Green, and myself. I got out of the car at Eighth and Main, and Hart drove the Cameron car over there. I got in the Cameron car with him, and we drove out south about a mile and a half, and Hart changed the numbers on the car by filing them off and putting new numbers on with a stencil. After that Hart came to me, and wanted to buy the car back, and I sold it to him for $290. After that Powell came to me at the store and' asked me if I had sold the car to Hart; said there was a car they were having trouble with down at the garage. He believed it was the same car. We drove down to the garage to see if it was the same car, and Powell looked at the car and said, ‘Yes,- that’s the ear.’ A day or two later Hart told me they were having trouble over the car, and it looked like if I didn’t take the car I would lose my money and the car too.”

Cross-examination: Witness said that about three weeks before he bought this ear he had told Harve Powell to be on the lookout for a car for him if he could find one cheap; that he did not understand Powell to be the owner of this car; that he understood Jim Green to be the owner of the car; that Hart and Powell did not sign the bill of sale in the same place Green signed it; that he thinks they signed it as witnesses; that Powell never told him that the ear was his, or that he had an interest in it.

O. C. Hart testified: That he knew some things about the Cameron car. That he first saw the car back of Harve Powell’s house about 7 or 8 o’clock in the morning of the day they sold the car to Cline. That the fellow Jim Green also went under the name of Cotton Wilder. Witness had seen Jim Green, or Wilder, two or three times before that, and had bought one car from him before that. Witness also corroborates Cline’s statements as to. the purchase of the ear and the changing of the numbers. Witness also stated that he got • the stencils to change the numbers with at Harve Powell’s house, and got the file over at his own house. That two or three weeks after that he bought the ear back from Cline, and took it to the Barfield garage and traded it to Fred White for a Ford roadster. That after he sold the car to Fred White he had a talk with Powell in regard to the car. That Powell came to his house two miles west of town, and said he would have to go down there and do something with the-car; “It’s in the garage and old dad’s blowing his head off to everybody that comes in about its being a wet ear, something wrong with it; that they would have to get out of there.” Next morning witness went to town, and met Powell, and Powell then said that “Slim,” this policeman, had found it was down there and had looked it over. He said he could square it with “Slim” for $25. Later witness went to J. E. Cline, and Cline took the car back, and was in the possession of the car at the time witness was arrested. Witness further testified that he was not related to Harve Powell, but that Homer Hart was a brother of his. That Harve Powell introduced Jim Green to him under the name of Cotton Wilder. That witness had not seen Jim Green since the day they made the deal to J. E. Cline on the ear.

Cross-examination: Witness testified that he was arrested on this charge the evening before Harve Powell was arrested. That the county attorney told him he could plead guilty and take 2 years, but never said anything about convicting Powell. That the county attorney never promised him that if they could stick Powell that they would Turn him loose. That he did not get any of the money that Cline paid Jim Green. That on the morning the ear was sold to Cline, about 7 or 8 o’clock, the witness took the car from Powell’s house and drove it two blocks north over on Division and got some springs and a mattress and brought them over to his house. Witness denied ever trying to sell the car. That Che car was sold to Cline about 2 or 3 o’clock in the afternoon. Witness denied knowing that the car was a stolen car at the time it was sold to Cline. In other respects the witness’ testimony on ■ cross-examination was similar to that given in chief.

W. W. Melton testified that he was chief of police of Henryetta in March, 1919, and located the stolen ear in a little garage in an alley back of Harrison’s store in Henryetta, and took it to the fire station, where it was afterwards identified by Cameron and turned over to him. That defendant Powell was arrested the next evening after the ear was found.

Fred White testified that he lived at Henryetta and was in the transfer business; that in March, 1919, he worked at Barfield’s garage; that about that time he bought a Ford car from O. C. Hart, and about a week afterwards sold the car back to Hart; that during the time witness owned the ear he kept it in Barfield’s garage; noticed that numbers of the car were larger than witness had ever seen on other Ford cars; during time car was in Barfield’s garage saw Harve Powell and J. E. Cline drive in there in a Ford, but didn’t see "what they done.” W. J. McGuffey was there at the time; he is commonly called "Dad.”

W. J. McGuffey testified that he was working in Bar-field’s garage in March, 1919, as a mechanic; saw the car there, don’t remember how long it was there; saw Powell and Cline drive up there once while car was there. Witness was busy in the office at the time, but got up and walked to the doorway, and heard Powell remark to Cline, "That’s the car”; that was all witness heard said; he was looking at the car at the time; don’t think Cline ever got out of the car he was riding in.

Mrs. Homer Hart testified that she lived in Henryetta and knew defendant Powell, and remembered when he was arrested; that defendant came to her house about 6 o’clock of the day he was arrested, looking for her husband; that her husband wasn’t there; that Powell said Broaddus told him he had a warrant for him and Homer; he said O. C. Hart was telling everything; defendant hadn’t been arrested at that time; that her husband left that night, and has been gone since then.

Cross-examination: Her husband is a brother of 0. C. Hart; that Powell came to her house after her brother-in-law had been arrested, but witness don’t know how long; that Harve Powell’s wife was with him at the time.

Defendant’s Evidence.

W. M. Jackson testified that he knew 0. C. Hart; that in February, 1919, witness was working in Pounder and Waller’s garage in Henryetta; that on the morning of the day this stolen car was sold to J. E. Cline witness saw Hart with the car; that was about 6 o’clock; that a stranger was with him; that they drove up in front of the garage; that Hart wanted to sell the car to witness.

Cross-examination: Don’t know how many “wet” cars Hart has been mixed up in; never saw the boy before that time with Hart; don’t know whether the car Hart tried to sell was the Cameron car or not.

Redirect: On the morning Hart tried to sell me this car witness took Harve Powell’s ear down to his house, asked him if he was going to town. Witness afterwards drove Powell’s car to town, ate breakfast, and come back to Powell’s house, and Powell then came to town with witness in the car.

Recross: The fellow with Hart offered to sell the car for $250; it was practically a new car; “I asked him, ‘Why sell the car so cheap?’ He said, ‘Going out of business.’ It was something like a couple of days after that that I heard Hart was arrested — might have been longer; could have been a' week; can’t fix the date. Hart said that if they didn’t sell the ear to me they were going to sell to a grocery man; understood afterwards that Cline bought the ear; wasn’t present, and don’t know whether he did or not.”

Cleland Shank testified that he was working for defendant driving a livery car; that in April, 1919, he had a conversation with O. C. Hart in front of post office in Henryetta in which Hart told witness that if they could stick Harve Powell they would turn him loose.

Cross-examination: Conversation occurred just a few days after the preliminary examination. Hart said that Mr. Wallace told him that if they could stick Powell they would turn him loose. Hart didn’t say anything about an agreement with Mr. Eaton, the county attorney.

Mrs. Homer Hart testified that she was at Harve Powell’s house the day that O. C. Hart claims to have borrowed the stencils from Mrs. Powell; that she was there about 2 o ’clock, and that 0. C. Hart didn’t come to the house that day. On cross-examination witness admitted she didn’tf tell this at the preliminary examination — said she wasn’t asked anything about it.

Mrs. Harve Powell, wife of defendant, denied that 0. C. Hart come to her house and got stencils to change numbers on car.

Harve Powell, defendant, testified:

That he was 33 years old, married; two children; had been in mining business, and was now operating a livery business; before coming to Henryetta had been manager of Midland' Telephone at Porum, Okla. Had known 0. C Hart 2 or 3 years; remembered occasion of Cline purchasing ear from Jim Green; left home about 9 o’clock that morning; rode to town with “Doc” Jackson; never went to Hart’s house about 7 that morning. “Some time before that J. E. Cline had told me he wanted to buy a car, and if I saw one worth the money to let him know; first met Hart and Green in front of Miners National Bank; didn’t know Green; he was not Cotton Wilder. Cline came across and went into bank, when he came out by I asked him if he wanted to buy a car. I told him Hart and this fellow ‘over there’ had one; Cline walked over to Hart, and went to talking with them; Cline came back, and said to me, ‘Do you reckon it is all right?’ I said, ‘I don’t know; I suppose it is.’ Cline said, ‘Let’s go and get a bill of sale.’ We got a bill of sale at the Citizens’ Bank. When we got back this fellow was gone. Cline asked Hart where he was, and Hart told him, ‘He has gone down the street.’ I said, ‘Get in my car; let’s drive.’ We drove down on East Trug-eon, and found this fellow called Jim Green — he got in the ear. Hart said,‘Drive down Trugeon to my house.’ We drove west on Trugeon to Tenth and Main, and they fixed up the bill of sale. I signed it as a witness, so did O. C. Hart; Jim Green made the bill of sale; then we drove to Hart’s house. Hart got out in front of his house where the car was standing; that was the first time I had seen the car, the car had never been on my premises. When Hart got out I drove back towards town, and Cline got out at Eighth and Main, and Green got out at the post office; Green paid me $2. I did not know they were dealing in a stolen car; I never told Hart to go to my house and get stencils to change the numbers on the car. I never knew they changed the numbers on the car; never examined them. About two weeks after Cline bought the car I went into Cline’s grocery store to buy some groceries, and J. E. Cline said: ‘They are having a little stir-up about that car. Chief Melton told me I better go out there and get my ear or my money back. I wish you would drive me out there.’ I drove him out there, and he paid me $2 for the trip. I understood that before that Cline had sold the car back to Hart. After we got out to Hart’s house Cline said: ‘I want my money back.’ I said, ‘That’s the best thing to do; if it is stirred up that way that is the best thing to do.’ I never told Hart we would have to go to the garage and do something about the car; never told Hart ‘Slim’ had found out this was a bad car, and that we could square it with ‘Slim’ for $25. We. were out to Hart’s place about 15 minutes. Hart refused to give Cline his money back. . It was a few evenings after that that I drove Cline down to Barfield’s garage to look at the car down there. Cline wanted to see if the car there— the one they were having the trouble over — was the same car he had bought from Green. We drove down there. They had been washing the car; it was wet with water, I go,t out of my car and looked at it. I said, ‘It looks like the same car. ’ I made no examination of the car. My brother Tom first told me they had a warrant for me and Homer Hart. I had then heard that O. C. Hart had been arrested. My wife said, ‘Let’s go down to Homer’s and see.’ We went down there, and saw Mrs. Homer Hart. I-asked if Homer was there. She said he hadn’t come from work. I told her, ‘0. C. Hart was telling a bunch of lies, and I understood Jim Broaddus had a warrant for me and Homer.’ She said: ‘I guess not.’ That was all the conversation we had; I went back and went down town and found Jim Broaddus, and asked him if he had a warrant for me, and he said he had, and put me in jail.”

On cross-examination the testimony of the defendant was not materially different from that given on direct examination.

H. C. Dwiggins, a banker, C. P. Reynolds, grocer, Jim Stormont, chief of police, P. G. Waller, garage owner, J. E. Whitenton, banker, George W. Bailey, hardware dealer, and J. W. Pippin, all residents of Henryetta, testified that the defendant’s general reputation for honesty in that community was good.

Mrs. Harve Powell, recalled, testified to the visit made by herself and husband to Homer Hart’s house on the evening her husband was arrested. Her testimony concerning what happened there at that time was the same as that given by her husband. •

Harve Powell, recalled for further cross-examination, was asked if the trip made by him and Cline to O. C. Hart’s house was made before or after Hart had been arrested, and replied, “I think he had; I don’t know whether he had or not.” Witness was then asked if Hart was not arrested after the car had been taken from Cline, and replied, “Jake (meaning Cline) had done lost the car at that time.” The witness was then aske’d if the trip was necessary in order to locate the car over at the garage, and replied, “Let’s see; I don’t know whether it was before.” He was then asked, “This trip out there was bound to have been before, wasn’t it?” To which he replied, “If the ear was found by Melton in this little garage.” “I don’t know whether Melton had taken the ear or not, but Melton told him that he had better go out there and try and get his money back. I don’t know whether Melton had the car at that time or not. I don’t know whether Cline had been arrested or not.” Witness was then asked if he didn’t look the car over in Barfield’s garage before he made the trip to see 0. C. Hart. To which he replied, “I don’t think we did; I don’t know.” Witness was then asked, “Didn’t you make another trip out there to Hart’s that same night after bringing Cline to town? Didn’t you go back to Hart’s place about midnight and have a conversation with .him?” To which the witness answered, “No, sir.” Witness was then asked, “Isn’t it a fact you returned there along about ■midnight that same night and had a conversation with 0. C. Hart in which you told him to stick to that bill of sale and say that this man Pete Wilder or Jim Green lived at Durant?” To which witness answered, “No, sir; I did not.”

Rebuttal.

0. C. Hart was then produced as a witness for the state in rebuttal, and testified that he never had any conversation with Cleland Shank to the effect that Mr. Wallace told him that if he would help convict Harve Powell he would go free. Witness also testified that Harve Powell made a second trip to his house on the same night that he and Cline were out there about 12 o ’clock, and asked him if he was going to stick to the bill of sale of Jim Green and say that this Jim Green lived at Durant.

On cross-examination witness said he did not state anything about the second trip of Harve Powell to his house on that night when called as a witness in chief, because “he was-n’t asked about it, and; it didn’t come to his mind”; that he had told the county attorney about this second trip when the preliminary examination was had.

J. E. Cline, recalled for the state, testified that he did not know where the tools came from with which the numbers were changed on the car; that O. C. Hart changed the numbers; that he gave all the money for the car to Jim Green; that when he sold the car back to 0. C. Hart, 0. C. Hart gave him a check for $290, “and I gave him back a check for $390.” Witness also stated that he had known Cotton Wilder about 5 years' before that, when Wilder was from 17 to 20 years old, but would not say that Jim Green and Cotton Wilder were the same person.

The foregoing was substantially all the evidence introduced in the case.

Is the evidence sufficient in law to sustain the conviction? We think not. The only evidence that directly tends to connect this defendant with the receipt of the stolen automobile is that which falls from the lips of the witness O. C. Hart, who is admittedly an accomplice. Hart testified that on the morning of the day after the car was stolen he saw it in the back yard of tbe defendant Powell’s residence property; that at 6 o’clock that morning Powell came to his (Hart’s) house and tried to sell him this stolen ear. Although it is disclosed by this record that Powell lived in a thickly settled part of town, not a single disinterested witness is brought by the state into court who testified to having seen Powell in possession of the car. Nor is any one produced who saw Powell at Hart’s' house trying to sell the car. True, the witness Cline testifies to facts which indicate that Powell was mixed up in the sale of this car to him, but Cline also testified that several days before that he had asked Powell, who was then in the livery business at Henryetta, to “look out for a cheap ear for him.” There is nothing in Cline’s testimony, independent of the testimony of Hart, which indicates that Powell had knowledge at the time Cline bought the car that the car was stolen; at least, there is nothing in Cline’s testimony which indicates that Powell had any more knowledge that the car was stolen at that time than Cline himself had, and if both of them had knowledge that the car was stolen, then Cline also was an accomplice of Powell’s, and a conviction would not lie even upon the testimony of both Cline and Hart. The county attorney evidently took the view that both Hart and Cline were accomplices of Powell’s; that they all had guilty knowledge that they were dealing with a stolen automobile, because he jointly informed against all three of them for this offense, and permitted both Hart and Cline to turn state’s evidence against Powell.

The court is of the opinion that the evidence of both Hart and Cline is that of accomplices, and if this conviction is allowed to stand there must be found in this record evidence independent of those two witnesses which tends, to connect the defendant with the commission of the offense. Is there any such evidence? The state asserts1 that the evidence is sufficient, but nowhere in the' brief filed in behalf of the state is there pointed out any evidence tending to corroborate the testimony of tbe accomplices. We fail to find any which we deem to be sufficient for that purpose. True, there is some evidence which would create a suspicion of the defendant’s guilt, but not more, as we view it. The evidence of Mrs. Homer Hart and of W. J. McG-uffey, if unexplained, might have that effect, but at most it only tends to prove that some time after the receipt of this stolen car the defendant Powell had then received information that the car was probably a stolen ear.

This defendant bore a good reputation for honesty in that community, a number of the very best citizens and business men of Henryetta testified to that fact, and no effort was made to prove the contrary. He was a married man with a wife and two children, and had never been charged with crime before. Certainly his good reputation is entitled to great weight where there is so little evidence in the record independent of the testimony of accomplices which could in the slightest degree support the verdict. The state only demands the punishment of its citizens when their guilt has been clearly established according to the forms of law and by the rules of evidence prescribed for ascertaining their guilt. The law forbidding a conviction on the uncorroborated testimony of an accomplice is positive and peremptory. It is not intended to shield the guilty, but to protect the innocent because of the temptation of those jointly charged with crime to materially benefit by turning state’s evidence. Defendant is not only entitled to a fair trial according to the forms of law, but he is entitled to require that the state prove his guilt beyond a reasonable doubt according to the prescribed rules of evidence, and unless the state does so prove his guilt the conviction is not according to law.

The court is of the opinion that there is no evidence in this record, independent of that of the accomplices, which tends in any way to connect this defendant with the commission of tbe offense charged. Therefore it is onr opinion that the evidence is legally insufficient to sustain the conviction, and that the judgment of conviction should be set aside on this ground; and it is so ordered.

For reasons stated, the judgment is reversed, and the cause remanded to the superior court of Okmulgee county for further proceedings consistent with this opinion.

DOYLE, P. J., and BESSEY, J., concur.


text:
    JOHN CRITTENDEN v. STATE.
    No. A-3814.
    Opinion Filed June 24, 1922.
    (207 Pac. 747.)
    Appeal from District Court, Lincoln County; Edward Dewes Oldfield, Special Judge.
    John Crittenden was convicted of embezzlement, and he appeals.
    Reversed.
    Jarrett & Speakman, for plaintiff in error.
    The Attorney General and E. L. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the district court of Lincoln county wherein John Crittenden was convicted of the crime of embezzlement as defined by chapter 230, Session Laws 1915, and his punishment fixed at a fine of $50 and costs of the action. From the judgment rendered against him he has appealed to this court.

In this ease the Attorney General has filed the following confession of error:

“Plaintiff in error was charged by information and convicted of the violation of chapter 230, Session Laws of Oklahoma 1915, which makes it embezzlement for any person to. remove crops from leased or rented premises with the intent to deprive the owner or landlord interested in said land of any of the rent due from said land, or who shall fraudulently appropriate the rent due the owner or landlord of said land, to himself or any person not entitled thereto.
‘ ‘ The undisputed evidence was that the premises in question were leased by written contract to plaintiff in error for cash rent, and that a note for the amount of cash rent, secured by chattel mortgage on certain portions of the crops, was given the landlord; that W. A. Heuston, cashier of the bank at Agra, had possession of the note and mortgage with the authority to collect the same.
“The information charges that plaintiff in error, being the tenant on the estate of L. Harrison, deceased, received and took into his possession 1,680 pounds of seed cotton grown on the land covered by the lease in question, the same being of the value of $184.80, which it is charged was the property of the estate of L. Harrison; that the plaintiff in error removed said seed cotton from the leased premises with the intent to embezzle the same and deprive the estate of L. Harrison of the rent due from said land, and that plaintiff in error appropriated the same to himself with the felonious intent to deprive the owner thereof.
“The undisputed evidence is that plaintiff in error picked 1,680 pounds of seed cotton off the leased premises, and from that portion of land covered by the chattel mortgage, and took the same to Agra and had it ginned and sold it, and on the same day, and immediately thereafter took the check which he received for said cotton, in the sum of $184.80, to Mr. Heus-ton, who, as stated, was the agent of and represented the parties to whom the rent was due, and who also had possession of the note and chattel mortgage, and plaintiff in error hand, ed this check over to Mr. Heuston, told him that he wanted to apply $125 on the said note and mortgage, and would like to have the balance for the purpose of paying cotton pickers and to get something to eat for his family, who were in bed with the flu.
“As stated, this evidence is undisputed, and it seems to us that instead of showing that plaintiff in error took this cotton with the intent to deprive the owner, or the landlord, thereof, that the evidence conclusively shows the contrary.
“There was some evidence introduced to the effect that plaintiff in error had taken other loads of cotton at different times off the leased premises, and sold and disposed of the same, and that the proceeds were not turned over to be applied on the rent. This cotton, however, was not taken from that portion of the leased premises covered by the chattel mortgage. However, it seems to us that this evidence could only be competent for the purpose of showing the intent with which plaintiff in error may have taken the cotton mentioned in the information. That is, if there had been any question as to the intent with which he took the same, then the fact that he may have appropriated other cotton would tend to show such intent, but where the testimony is undisputed that the cotton which he is charged with embezzling was sold and the proceeds applied to the payment of the note of the landlord, less such portion as the agent of the landlord permitted him to retain, then the evidence of the sales of other loads of cotton could not be material.
“We apprehend it is plain that plaintiff in error could only be convicted of the charge set forth in the information. In this connection we call the attention of the court to the undisputed testimony of plaintiff in error that the landlord was to look solely to the crops on that part of the leased premises covered by the chattel mortgage. That being true, it might be well said that the landlord waived any interest or any lien that he might have had to the balance of the crops.
“Counsel for plaintiff in err r also call attention to the fact that the court was requested to give the instruction setting out the theory of plaintiff in error (Ree. 146), which the court refused, and also refused to give any instruction covering this theory.
“We feel that under the repeated rulings of this court, some of which are cited by counsel fór plaintiff in error, that it is error for the trial court, when requested so to do, to refuse to instruct on the law applicable to the theory of the defense.
‘ ‘ Complaint is also made of the alleged misconduct on the part of the county attorney in his closing argument. We are of the opinion, however, that this assignment is entirely without merit, and that the county attorney did not overstep the reasonable bounds of argument.
“For the errors pointed out above, we are inclined to think that plaintiff in error did not have a fair and impartial trial guaranteed him by the Constitution.
“Respectfully submitted,
“For the Attorney General.,
“E. L. Fulton, Asst. Atty. Gen.”

Irrespective of whether the action of the landlord in taking a note secured by a chattel mortgage on part of the crop to be planted and raised by the tenant on the leased premises constituted a waiver of the landlord’s lien on that part of the crop not covered by the mortgage (a question of law not necessary for decision in this case), we think the judgment should be reversed for the reason stated in the confession of error of the Attorney General, to wit, that as to the portion of the crop covered by the allegations of the information, the state failed to prove any intent on the part of the defendant to deprive the owner of the cotton or the proceeds of the sale thereof. Intent to deprive the owner or landlord of the rent due is a material ingredient of the offense and must be proved as alleged. The confession of error of the Attorney General in this, respect is supported by the record.

For reasons stated, the judgment is reversed.