text:
    M. J. OTEY v. STATE.
    No. A-5738.
    Opinion Filed Jan. 21, 1928.
    (263 Pac. 155.)

      John P. Hickam, W. H. Wilcox, Freeman E. Miller, and Wallace G. Hughes, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was indicted in the district court of Payne county, February 19, 1924, the indictment charging:

“That on or about the 13th day of July, 1924, one M. J, Otey, who was then and there duly appointed, qualified, and acting chief clerk of the Argicultural and Mechanical College, an institution corporate under the laws of the state of Oklahoma, and as such chief clerk and public officer, did have charge of the revolving fund of the said Agricultural and Mechanical College, which said fund was also designated as Chief Clerk Account, Chief Clery Fund, and ‘'Chief Clerk Account No. 1,’ and Chief Clerk -Account No. 2, and as such officer was bounden to receive and deposit the moneys due said revolving fund into the account belonging to said fund, and to faithfully account for the same. That, as such officer, and by means of said office, did, on the said day and date, and at and within the county of Payne, state of Oklahoma, receive a warrant, issued by the state of Oklahoma, against the general revenue fund of the state of Oklahoma, and payable to M. J. Otey as such officer, for the purpose of reimbursing the said revolving fund; said warrant being No. 62593, under date of July 1, 1922, and in the sum and amount of $1,989:50 and of the value of $1,989.50 in good and lawful money of the United States of America, and the same being the property of, and belonging to, the said Agricultural and Mechanical College, at Stillwater, Okla., and due to, and belonging to, the revolving fund of said institution, and said M. J. Otey did willfully, wrongfully, fraudulently, and feloniously embezzle, convert, and appropriate the said warrant so received to his own use and benefit, in violation of his official duty and trust, without authority of law, and did put said warrant and proceeds thereof to use and purpose inconsistent with, and in violation of, the duties, of his trust and office, with the fraudulent intent on the part of the said M. J. Otey to permanently and fraudulently deprive the said Agricultural and Mechanical College, at Stillwater, and revolving fund of said institution at the same time, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Oklahoma.”

On the 7th day of May, 1924, motion was filed by the defendant to set aside the indictment, which motion was, on May' 10, 1924, overruled by the court, and defendant reserved an exception. On May 10, 1924, the defendant filed a demurrer to the indictment, which demurrer was by the court heard, considered, and overruled, and except tions duly saved. The defendant entered his plea of not guilty. The cause was assigned for trial February 2, 1925. The case proceeded to trial, and the jury returned a verdict of guilty, leaving the punishment to the court.

The court upon the verdict rendered by the jury sentenced the defendant to imprisonment in the penitentiary at McAlester for eight years from the date of the delivery of the defendant to the warden of the penitentiary, and to pay a fine of $500, and cost of the action. To the imposing of the sentence upon the defendant, defendant duly excepted, and prayed appeal. To reverse the judgment defendant has appealed to this court.

For convenience, we will consider the errors assigned in the following order: First, assignment No. 12:

“(12) The court erred as a matter of law in'overruling the motion of the defendant, filed on the 2d day of February, 1925, asking for a continuance of this case, the said reason being set forth that Senator Hughes, a member of our state Senate, and one of the counsel for the defendant in _ said cause, was unable to be present as shown by the said motion. The record and ruling of the court at the time to each was duly excepted, and which exceptions by the court were duly allowed.”

Defendant’s motion for continuance was based on a provision of section 583 of the Compiled Statutes of Oklahoma 1921. That part of said section which applies to this case is as follows:

“Provided, that if the party or his attorney of record is serving as a member' of the Legislature or the Senate, sitting as a court of impeachment, or within ten days after an adjournment of a session of the Legislature, such facts shall constitute cause for continuance, the refusal to grant which shall constitute error, and entitle” the defendant “to a new trial as a matter of right.”

This court passed upon this question in the case of Holloway v. State, 37 Okla. Cr. 24, 255 P. 1022, adversely to the contention of the defendant in this case, in which the court uses the following language:

“It will be observed that, at the time Senator Goodall was employed, the Legislature was in session, and had been in session some weeks. Defendant knew at the time he employed Mr. Goodall that he was a member of the Legislature ; knew that he could not be present at the trial of his case; and was then informed that his counsel would apply for a continuance for him.
“The purpose of this statute was, no doubt, to encourage members of the bar to become candidates for the lawmaking body of the state, and to protect a defendant whose attorney, presumably familiar with his case, could not attend his trial by reason of official duty, and to protect members in their business while serving the state in this capacity by preventing trials of cases where they are attorneys of record during a session of.the Legislature and for ten days thereafter; that during this time they should not be disturbed in their duties as lawmakers. The privilege of a continuance as a matter of right applies only to a defendant whose attorney of record is a member of the Legislature. A member of the Legislature, during a session of the Legislature, also has the right to contract for any new business presented to him, and if such business arises during a session of the Legislature, and he is employed, he would then be entitled to the benefits conferred by this statute. But, where an accused against whom a prosecution is pcjnding prior to the convening of the Legislature, and who prior to such time has employed counsel as his attorney of record, he may not during a legislative session, by employing a member of the Legislature, procure a continuance on that ground as a matter of right.”

We will next consider assignments 1 and 13, which assignments are as follows:

“(1) The court erred as a matter of law in permitting the introduction of incompetent,' irrelevant, and immaterial testimony of the plaintiff, the state of Oklahoma, prejudicial to the defendant, and prejudicial to his rights, to which the defendant, at the time and in the course of said trial, objected, and which objection, was by the court overruled, to which ruling of the court the defendant at the time excepted, and which exception was by the court allowed, as shown by the record in said cause.”
“(13) The court erred as a matter of law in’the trial of the cause in permitting the introduction of the audit report made by one Gr. P. Balfour, for the reason that the same is incompetent, irrelevant, and immaterial, and prejudicial to the rights of this defendant, to which the defendant, at the time and in the course of said trial, objected, and which objection was by. the court overruled, to which ruling of the court the defendant at the time duly excepted, 'and which exception was by the court allowed, as shown by the record in said cause.”

These assignments of error may be considered together as they relate to the admission of testimony against thf defendant. Defendant specially urges that the court erred in the admission of the copy of the auditor’s report alleged to ha,ve made by one G. P. Balfour, and especially in admitting a copy of the letter of G. P. Balfour transmitting his report to the examiner and inspector. Defendant objected to the admission of this record, which motion was overruled, and, after the letter accompanying the same had been introduced, moved to strike the report and letter, which is designated in the record as Exhibit R, and assigned five grounds each of which he contends is sufficient to have the testimony contained in Exhibit R excluded from the jury, which motion of the defendant was overruled, and the defendant duly excepted.

An examination of the record shows that the letter of the deputy examiner and inspector transmitting his report is full of statements showing his personal feeling, and gives his opinion as to what the facts show as to the audit. The letter hereinabove referred to covers ten pages of the record. It is so voluminous that we do not deem it necessary to set it out in full, but we do want to refer to one or two paragraphs1 in the letter to show the feeling of the inspector making the audit. On page 225 of the record appears the following:

“As time advanced, the system grew worse, less effective, and unreliable, until it ceased to reflect at any times true financial status of affairs, as was intended. Contrary to its purpose, it had the effect, of falsifying all statements and reports sent out by the institution, as well as misleading those that should have had a firmer grasp on its financial status. This method is the prime factor responsible for its present condition, as is reflected by the exhibits and schedules herein. Not the system’s fault, but the fault of the bonded financial officer whose duty it was to ‘carry on,’ and who wias thoroughly instructed by this department in the keeping of system and the laws governing the same.”

On page 233 the following appears:

“In the final analysis, the unbusinesslike methods pursued, the lack of records, and the lack of records that should have been kept by the purchasing agent,' who was also the financial secretary, coupled with the lack of care in safeguarding cash, is responsible for an increased cost in support and maintenance, for, where credits have been abused and credits held up, it is plainly demonstrated in the schedule of outstanding liabilities, it is more than a certainty that purchases were made at a higher price than they would where settlements when due were. promptly paid.”

The letter was addressed to the examiner and inspector of the state, and was no part of the audit, but the conclusions of the deputy as expressed in his language to his superior officer. Again, on the margin of the audit were many notations in handwriting, and when +he defendant moved to strike Exhibit It from the files on the ground that it was inadmissible, the special prosecutor for the state admitted that the notations on the margins had been made by him.

The question for this court to consider is, Were the copy of the audit offered in evidence and the letter transmitting it, and the notations shown on the margins of the audit, properly admitted as evidence against the defendant?

In Hays v. State, 22 Okla. Cr. 99, 210 P. 728, this court had a similar question before it, in which the court says:

“The defendant contends this evidence was incompetent and prejudicial, and that the error was not cured by its withdrawal from the jury. * * * This examiner’s testimony, authenticating his official reports as well as the reports themselves, was competent as tending to throw light upon the question of whether or not the offense was committed, but mere conclusions of the examiner, independent of his official reports, are incompetent. For the reason previously stated, the motion to direct the jury to return a verdict of not guilty should have been sustained.”

The letter transmitting the audit to the examiner and inspector only expressed the views of the compiler of the report, and w'as prejudicial to the rights of the defendant and the objections of the defendant should have been sustained.

This court holds that the admission of the letter transmitting the audit, together with the notations on the margins of the audit, over the objection of the defendant, was prejudicial to the rights of the defendant.

There are other errors assigned by the defendant, but, in the view we take of this record, we do not deem it necessary to discuss them. For the errors hereinabove stated, the case is reversed and remanded.

DOYLE, P. J., and EDWARDS, J., concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    C. L. GERDNER v. STATE.
    No. A-6277.
    Opinion Filed Nov. 12, 1927.
    Rehearing Denied Jan. 23, 1928.
    (262 Pac. 1077.)

      J. W. Osmond and H. W. Sitton, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is prosecuted to reverse the judgment of the court below, pronounced upon the verdict of the jury, finding appellant guilty of transporting intoxicating liquor, second offense, and assessing his punishment at a fine of $200' and confinement in the penitentiary for the term of 2 years.

The assignments of error relied upon for a reversal of the judgment question the sufficiency of the information a,nd the sufficiency of the evidence to sustain a conviction.

The information, omitting formal parts, charges:

“That C. L. Gerdner, on or about the 2d day of June, 1928, and prior to the filing of the information in this case, was informed against by information in the county court of Tillman county, Okla., a court of competent jurisdiction, by information duly filed in said court on the 2d day of June, 1925, by J. R. Huggins, county attorney of Tillman county, Okla., for the crime of manufacturing whisky, and upon the 19th day of June, 1923, the said C. L. Gerdner personally appeared in open court and upon his plea of not guilty to said charge and information was duly tried and convicted by a jury regularly impaneled and sworn to try said cause', and his punishment fixed by imprisonment in the county jail for a period of 30 days and a fine of $50; and that in’ pursuance of said verdict of the jury, he’ was by the court sentenced to serve 30 days in the county jail of Tillman county, Okla., and pay a fine of $50 and costs; and that after said sentence aforesaid and prior to the filing of this information, in this case, to wit, on or about the 15th day of September, 1925, in Tillman county, Okla., the said C. L. Gardner did then and there violate the liquor laws of the state of Oklahoma for a second and subsequent time, in the manner and form as follows, to wit: That C. L. Gerdner having been previously convicted as aforesaid, did then and there willfully, knowingly, unlawfully, and feloniously on the 15th day of September, 1925, transport and convey certain spirituous, vinous, fermented, malt, and intoxicating liquor, to wit, 120 gallons of whisky, from the southwest corner of the town of Chattanooga., Okla., along the public road to a point one mile west of said town; thence south along the public road to a point two miles south of said towto; thence one half mile east along the public road; contrary to,” etc.

A demurrer was interposed to the information on the ground that it failed to state facts sufficient to constitute an offense.

We deem it sufficient to say that the information is sufficient and properly charges the offense, including the previous conviction for a violation of the prohibitory liquor law, as provided by section 6991, C. S. 1921.

Claude Price, a deputy sheriff and night watchman at Chattanooga, observed a truck going through town at a very rapid rate of speed and followed it a mile west and two south where the truck stalled in a mudhole; he was then about twenty steps behind it and held his flash light on it; the man in the truck ran and disappeared. He testified that the man corresponded in size and description and appearance with the defendant; that the truck contained 120 gallons of whisky in fruit jars.

On cross-examination he. stated he did not know who this man was and could not swear who the man was.

J. F. Hendley and his wife were witnesses for the state, and each testified that the truck in question was transferred to the defendant C. L. Gerdner with the understanding that he was to finish paying for the same, and there is some correspondence in the record between Hendley and the defendant which supports the testimony of Hendley and his wife that prior to the seizure of this truck and whisky the truck had been transferred by Hendley to the defendant and delivered to him, and that the defendant was to finish paying for the same.

The evidence shows that the next day after the truck and whisky was seized the defendant appeared in the town of Chattanooga, driving through there in a Cadillac automobile, that at that time the truck was in the possession of the officers on the street in Chattanooga, and the defendant had an opportunity to see that the same had been seized. The defendant drove from Chattanooga to Grandfield to the home of the Hendleys, where according to the testimony of Mrs. Hend-ley he informed her that the truck and whisky had been seized.

It appears that the defendant then drove from Grandfield to Wichita Falls, Tex., and there bought another truck and loaded it with eleven oak barrels and started back to Oklahoma and was arrested for transporting this particular whisky on the night before as he went through the town of Grandfield.

The state introduced in evidence the information, the verdict, and the judgment of the county court of Tillman county, showing that on the 17th day of May, 1924, this defendant was convicted in said court on a charge of unlawfully manufacturing whisky, and sentenced to pay a fine of $50 and the costs, and to serve a term of 30 days’ imprisonment in the county jail. The record also discloses that no appeal was taken from said judgment.

The defendant testified that he was running a hotel at Cement, and was there the night the truck was seized, that he did not authorize anybody to haul whisky on the truck; that he was in Chattanooga and in Grandfield the next day and arrived at Wichita Falls about the noon hour; that he was driving a Cadillac car, and left Cement that morning; that prior to that time J. F. Hendley told him that there was a note due on the truck and if he would pay the note he could take the truck, and that he turned the truck over to his sons several days before the seizure; that he saw the truck on the street in Chattanooga and stopped at Mr. Hendley’s in Grandfield, to notify him about his truck; that he told Mrs. Hendley that the truck had been seized the night before; that returning that night from Wichita Falls his boy was driving a new truck, loaded with new grape barrels; he was stopped at Grandfield by an officer, who said that he wanted to search the truck; he asked him if he had a search warrant. The officer said, “I don’t need any, I have a warrant for you,” and the officer took him to Frederick.

On cross-examination he admitted that he had been previously convicted of a violation of the liquor law in the county court of Tillman county and had served at least 26 days in jail on the sentence; that he had been convicted of crimes in the federal court in the state of Texas.

Two witnesses testified that they were oil field workers and saw the defendant at his hotel in the town of Cement on the night in question.

• Thus it appears that the only controverted issue of fact on the trial of this case was the question of the identity of the defendant as the person who was driving the Ford truck loaded with 120 gallons of whisky.

It is contended that the evidence given upon the trial was legally insufficient to connect the defendant with the crime. In this connection it is urged that, because no witness saw the defendant with the whisky or in the possession of the truck on the night of its seizure; that is, that there was no witness who positively identified the defendant as the 'person with the truck, the evidence is therefore insufficient.

The rule is well settled that where the evidence is circumstantial, and the circumstances are such as to reasonably justify an inference of guilt, the weight and value of such testimony are exclusively for the jury. It is only where the evidence obviously does not warrant the inference of guilt that the court will interfere. Otherwise, the weight of circumstantial evidence and the inference to be drawn from it in almost every case would finally be determined by the appellate court.

It is the well-settled doctrine in this state that, a verdict of a jury based upon circumstantial evidence, comes to us as any other verdict, and, unless we can, say that the inference of guilt drawn from the evidence was wholly unwarranted, we cannot interfere. Wainscott v. State, 8 Okla. Cr. 590, 129 P. 655.

The credibility of the testimony of the defendant and the witnesses testifying in his behalf is the exclusive province of the jury to determine, and although such testimony may be uncontradicted and not directly impeached, when there are facts and circumstances admitted and proved, tending to lessen the probability that such testimony is true, the jury may give it such weight as they deem proper, even to the extent of wholly disregarding the same.

The court fully and fairly covered the law of the case in the instructions given to the jury.

No error appearing in the record, the judgment is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    DEWEY TURNER v. STATE.
    No. A-6263.
    Opinion Filed Jan. 28, 1928.
    (263 Pac. 476.)
    P. K. Morrill, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, Dewey Turner, was charged by information with having in his possession intoxicating liquor, to wit, 397 pints of beer, with the unlawful intention of' selling the same. His demurrer to the information on various grounds was overruled. He then pleaded not guilty and was tried and convicted and his punishment fixed at a fine of $500 and imprisonment in the county jail for six months. A motion for new trial was made and overruled. This appeal is from the judgment rendered in pursuance of the verdict.

The errors assigned question the sufficiency of the affidavit upon which the search warrant was issued and the sufficiency of the search warrant under which the evidence offered by the state was obtained.

J. L. English, sheriff, and R. F. Goodloe, deputy, testified that under authority of a search warrant they searched the barn on the premises occupied by the defendant and there found and seized 397 pint bottles of beer; that the defendant at the time said it wa's his beer; that the search and seizure was made on September 5, 1925.

C. E. Clifford, city chemist at Oklahoma City, testified that he received three bottles of beer for analysis from sheriff English; that one tested 6.28, one 6.78, and one 6.99. The analysis was made September 10, 1925.

At the close of the evidence for the state the defendant moved for a directed verdict of acquittal in the form of a demurrer to the evidence, which was overruled. There was no testimony offered on the part of the defendant.

It is argued that the constitutional requirement (section 30, art. 2) and the requirement of the statute (¡section 7002, C. S. 1921) ,were not complied with in not “describing ’as particularly as may be the place to be searched.”

The affidavit and search warrant recite:

“That, in the county of Jackson, State of Oklahoma, on the 5th day of September, 1925, the above-named defendant, Dewey Turner, in a certain building, outhouse, situated * * * in Jackson county, described as follows: N. E. 1-4 of Sec. 12, 2 N. Range 20 W. I. M., in a barn located on said premises,” and further stating facts sufficient to show probable cause for the issuance of the search warrant; and further stating that the said premises is a place of public resort.

The foregoing is sufficient to show* that there is no merit in the contentions made, and that the objections to the admissibility of the evidence in the case were properly overruled.

Several assignments are based on exceptions reserved to the instructions given by the court.

Taken as a whole, the law of the case is fully and fairly presented in the instructions given, and there were no instructions offered or requested by the defendant.

The last assignment urged is that the evidence is not sufficient to sustain the verdict.

We find that it is ample to sustain the verdict, and the record shows that the defendant was accorded a fair trial.

Finding no material error in the record, the judgment of the lower court is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


author: DAVENPORT, J.

text:
    JIM GOODMAN et al. v. STATE.
    No. A-5964.
    Opinion Filed Jan. 28, 1928.
    (263 Pac. 471.)

      J. F. Boettcher and J. T. Michael, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error Jim Goodman, James Cole, C. J. Sprague, and M. C. Williams, hereinafter called the defendants, were charged in the county court of Cleveland county with the crime of “manufacturing intoxicating liquor, to wit, 8 gallons of whisky, by the use of a still, still worm, and mash, containing more than one-half of 1 per cent, of alcohol measured by volume, and capable of being used as a beverage.”

A trial was had and the defendants convicted and each of them sentenced to imprisonment in the county jail of Cleveland county for a period of 90 days and to pay a fine of $250 and cost. Motion for a new trial was filed and overruled and exceptions saved. From the judgment and sentence, the defendants appealed to this court.

The testimony on behalf of the state as disclosed by the record is, in substance, as follows:

W. W. Jennings, a witness for the state, testified that he was the undersheriff of the county prior to the date he was called as a witness; he had been deputy sheriff; that he had lived in the county all his life; he knew the defendant Jim Goodman and he saw the co-defendants Cole, Sprague, -and Williams, on August 22, 1925, at Jim Goodman’s house; that Frank Boggs., the sheriff, and I. B. Sale, the deputy sheriff, were with, him at the time; that he made the affidavit for the search warrant. “The defendants and the Goodman family were at the Goodman house when we got there; we found, at the house, a wagon, a 5-gallon jug with some drugs in the bottom of it that smelled like whisky, a lantern that was smoked, and one quart of whisky which Mr. Sprague had poured out before w'e got to tihe wagon. I went into the house, and Mr. Goodman had broke a half pint of whisky, and it was running in the floor. I did. not find anything else at the house. We looked to see which way the wagon tracks had come from; they went over towards an adjoining farm, understood to belong to Edna Butler, which was about three-fourths to a mile from the defendant Jim Goodman’s house; we w'ent over to the adjoining farm and found a still, barrel of mash, and some whisky; we destroyed the barrels and whisky and took the still into town.”

Frank Boggs and I. B. Sale, in substance, testified to the same facts, contending there had been some whisky at the wagon, and some had been poured out at the house, and all agree that on the Jim Goodman place there was cultivated land and patches of different.kinds of crops on the farm; there was a dividing line between Jim Goodman and Edna Butler’s place, where it was claimed the whisky, barrels of mash, and still were found.

Jim Goodman testified that he did not pour out any whisky; that the bottle the sheriff and his deputies found was a water bottle; that the only thing that had been in the fruit jars in and around the place was cider that he had made from apples which he had gathered from his orchard on the place. In this he was corroborated by some of the other defendants.

Goodman admitted that he had driven his wagon back and forth through the farm; that he had been down and fixed the fence on the road between his place and the Butler place, or the half section or section line. He denied any knowledge of there being whisky, barrels of mash, or a still for manufacturing whisky on the Butler place; had no ownership in it nor did he know, and positively stated that he had nothing to do with the manufacturing of whisky. The other defendants, in substance, stated the same facts; that neither of them had poured out any whisky; and that the fruit jar mentioned by the state witnesses at the wagon only contained apple cider. All of the testimony shows that the still, barrels of mash, and whisky that were alleged to have been found on the Butler place was from three-fourths to a mile from the home of the defendant. There is not a word of testimony connecting the defendants, or either of them, with manufacturing the whisky, excepting a mere suspicion from the fact that on the defendant’s farm and going back and forth towards the farm on which it was alleged the still, whisky, and mash was found, were wagon tracks over the farm of the defendant !Jim Goodman.

The defendants have assigned several errors alleged to have been committed by the trial court, but the only errors we deem it necessary to consider are assignments 4 and 5, which are as follows:

"(4) The verdict of the jury is clearly contrary to the law and the facts.
“(5) That the court erred in not sustaining defendants’ demurrer to the evidence of the state at the close of defendants’ case.”

These two errors may be considered together, as they both raise the same question, that is, the sufficiency of the evidence to sustain a conviction against the defendants upon a charge of manufacturing whisky. Neither of the defendants is charged with having possession of whisky, or with the bartering or selling, but only charged with the crime of manufacturing whisky.

After a careful consideration of all the testimony in the case it is apparent that the evidence is not sufficient to sustain a verdict. The evidence tends to show that intoxicating liquor had been manufactured on the Butler place about three-quarters or a mile from the home of one of the defendants, Jim Goodman, but the testimony is not sufficient to show that these defendants had any knowledge of the same.

In the case of Tro v. State, 27 Okla. Cr. 418, 228 P. 530, this court reviewed this case, in which the evidence introduced was circumstantial and very much stronger than the present case, in which the court said:

“If the evidence in this case is sufficient to sustain a conviction for manufacturing beer and whisky, then any person who may have the possession of a small amount of whisky at his home, a sack of moist wheat, and a beer keg full of some kind of slop that smells like mash, without the possession of any of the utensils, such as a still and worm, out of which whisky is made, may be convicted of such offense.
“The circumstantial evidence in this case, if it proves anything, proves that the defendant was possessed of a small amount of whisky in a fruit jar on his premises. The defendant was. not charged with the unlawful possession of intoxicating liquor, and we surmise that such a charge was not placed against him because the quantity found was not sufficient to be presumptive evidence of an intent on his part to violate any of the provisions of the prohibitory liquor' laws of this state. It appears evident that because of such fact the prosecuting attorney preferred to charge defendant with the unlawful manufacture of intoxicating liquor rather than to charge him with the unlawful possession thereof, because under the charge of manufacturing it .was not necessary to prove the intent to sell, barter, or give away the same.
“Ofttimes the evidence will justify the filing of one or more charges of violating the prohibitory liquor laws, and the county attorneys have a large discretion as to which of such offenses they will prosecute' for, but the burden rests upon the state to prove the defendant guilty beyond a reasonable doubt of the offense charged, and, where circumstantial evidence alone is relied upon, the circumstances must be such as to preclude every reasonable hypothesis other than that of the guilt of the defendant of the offense charged. The circumstances here relied upon do not meet this requirement; they fall far short thereof.” Dowdy v. State, 27 Okla. Cr. 402, 228 P. 528.

In La Grone v. State, 32 Okla. Cr. 45, 239 P. 938, the court says:

“Where the sufficiency of the evidence to sustain a verdict is questioned on appeal, the evidence must be such that the jury may reasonably and logically find the guilt of the defendant, and, where it raises no more than a suspicion of guilt, it is insufficient.”

In Peard v. State, 32 Okla. Cr. 45, 240 P. 158, the sheriff and four others found two barrels of mash buried in a shed, broken jars, two cream cans, and a couple of jugs in the cellar of the house; these articles were introduced as evidence,, over the objection of defendant. Held insufficient to sustain the offense charged, that of manufacturing intoxicating liquor.

In Wofford v. State, 32 Okla. Cr. 25, 239 P. 938, the court said:

“To find a verdict of guilty the jury were required to find that the facts and circumstances in evidence were sufficient to show beyond a reasonable doubt the defendant’s guilt. It is not sufficient that he may have committed the act, but it must be established that he did.”

This question has been before this court so often that we do not deem it necessary to further discuss the question. This court has repeatedly held that it will not disturb the verdict of a jury where there was any competent evidence to support the finding of the jury, even though the evidence is conflicting. Where the evidence is purely circumstantial, as in this case, the facts proved must be such as to preclude every reasonable hypothesis other than the guilt of the defendant charged in order to sustain a conviction. There is not sufficient evidence in this case to connect either of the defendants with the manufacturing of intoxicating liquors. Where the state fails to offer any material evidence tending to prove the offense charged, or where the evidence tends to prove anything pertinent to the issue, there is a question of law for the court, and where there is an entire absence of evidence tending to identify the accused with the offense charged in the information the court should direct a verdict of acquittal. It may be that the defendants committed the offense charged, but, if so, the state has failed to prove it. The demurrer of the defendants to the evidence of the plaintiff was well takeri and should have been sustained.

For the errors hereinabove stated, the case is reversed and remanded.

DOYLE, P. J., and EDWARDS, J., concur.


text:
    CLAUD STENNETT v. STATE.
    No. A-6279.
    Opinion Filed Jan. 28, 1928.
    (263 Pac. 470.)

      R. C. Roland, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Carter county on the charge of “having in his possession certain spirituous liquor, to wit, 21 half pints of corn whisky, with the unlawful intent then and there on the part of him the said Claud Stennett of selling, bartering, giving away, and otherwise furnishing the. same to others,” and was sentenced to imprisonment in the county jail of Carter county for a period of 30 days, and to pay a fine of $100. From the judgment and sentence the defendant appeals.

The testimony on behalf of the state is: That Dwight Bell lived at Wilson. That he was deputy sheriff on the 3d day of June, 1925. That he was acquainted with Claud Stennett at this time. That he saw the defendant on said date, after dark. That the defendant was running a little cafe in the town of Clem-scott. That he went to the defendant’s place of business about 8 or 9 o’clock. That he went into the place of business, and asked where Claud was, and a lady replied that she did not know. That he heard a noise at the back end of the building, so he went on through the building, and in the rear of the building he met two men coming toward the building, and another “kinder meeting him-from the other corner. That he throwed his flash-light on one of the men and it was Mr. S'tennett, and Mr. Stennett had a sack of whisky in his hand.” He asked him what he had, and took one of the bottles —one half pint wrapped in .paper from the tow sack— and held it up. That Jess Bell went with him to Clem-scott. There were 21 bottles of corn whisky.

Jess Bell also testified, in substance, that he was at Clemscott with Dwight Bell, and that Dwight was at the back of the place of business of defendant, and flashed his light upon them, and got a sack of whisky; that he did not see the defendant with the sack in his hands, but, when his attention was. called to it by Dwight Bell, the sack was in about 3 feet of the place where defendant was.

The defendant in his own behalf stated that, prior to Dwight Bell coming to his place .of business, he had gone out the back way. As he went out, he was called by some one, and he learned it was Jess Bell. “I was going away from him when he called, 20 or 30 feet, I guess.” Defendant further stated that he did not carry any whisky out of his place when he went out, and that first time that he saw the whisky was when Dwight Bell kicked it with his foot. He also gave some testimony as to a man by the name of Shorty Crawford running a restaurant and cold drink stand adjoining his place of’ business; that the two buildings were close together; denied any knowledge of the ownership of the whisky.

Defendant argues that the evidence is not sufficient to sustain the judgment. The evidence on behalf of the state is positive that the defendant had in his possession the whisky at the time the state’s witness carné upon him, and the quantity of whisky that he had. in his possession is prima facie evidence of his intent to sell, barter, or give away the same.

■ The testimony on behalf of the defendant tends to show that some one else must have left the whisky in the rear of his place of business. It is not reasonable that any other person would have come upon the premises of the defendant or immediately adjacent thereto, and within a very few feet of his place of business and left the whisky in a sack,, where it might be seen by any one passing around there. The defendant’s presence in the rear of the building and in the immediate vicinity, if not in actual possession of the whisky, indicates that he was there for the purpose of secreting or concealing the whisky to prevent the officers from getting the same.

The record examined, and testimony held sufficient to sustain the verdict and judgment. ' Upon the record before us we are convinced that no error prejudicial to the substantial rights of the defendant was committed.

The judgment is accordingly affirmed.

DOYLE, P. J., and EDWARDS, J., concur.


author: EDWARDS, J.

text:
    IRA WELTY v. STATE.
    No. A-5232.
    Opinion Filed Oct. 1, 1927.
    Rehearing Denied Jan. 28, 1928.
    (263 Pac. 177.)

      Charles Swindall, H. W. Patton, and O. C. Wy-brant, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, on a charge of murder, was convicted in the district court of Woodward county for manslaughter in the second degree and was sentenced to serve a term of 2 years in the state penitentiary.

This case is submitted upon the single contention that the evidence is insufficient to sustain the verdict and judgment. The conviction is based entirely upon circumstantial evidence. The record discloses a state of facts about as follows: Defendant, 34 years of age, had lived most of his life in the western part of the state; at the time of the homicide he resided near the small town of Freedom. The deceased, E. Bailey, generally referred to as “Jazz” Bailey, a ranch hand or cow puncher, had resided in the neighborhood for about two years and at the time charged he and defendant lived in a small shack on defendant’s ranch. The family of defendant were living in the village of Freedom for school purposes. Deceased was last seen alive on March 25, and defendant was the last person seen with him. After the disappearance of deceased, defendant made statements to. the effect that deceased had left the country and had gone to the oil fields about Tonkawa. A letter was received by one Sam Huffman as follows:

“Fairvalley, Okla., March 26, 1923.
“Dear Friend: I will now write. I am on my way to the oil fields. I sold Irish the saddle and the horse. You tell Irish to get my male and keep it until I write for it. I will close. From E. Bailey.”

Huffman knew that deceased was illiterate and unable to write his name, so an investigation was instituted and a search made. The body was found secreted in a canyon not far from defendant’s cabin, and from appearances it had been wedged in the rocks for a number of days. Blood spots were around the scene, and the clothing was in a condition indicating that it had been dragged for some distance before being secreted. Death had been caused by a blow on the head from some blunt instrument. Bailey’s horse, saddle, saddle blanket, and some personal effects were in the possession of defendant at the time the body was discovered. Defendant, when informed of the finding of the body, became very nervous and agitated. Investigation revealed that the letter to Huffman was mailed by defendant, and upon his being questioned about this by the sheriff he became nervous and fainted. The letter was, in fact, written on April 3, and mailed on that date. At the trial, on cross-examination, defendant admitted he wrote the letter and also wrote one to himself of similar import. His explanation is that he had received a warning from the Ku Kluk Klan, and that the purpose was to stop the mouths of the Ku Kluk until he could hear from Bailey. Defendant further testified that deceased owed him about $75 and had delivered his horse, saddle, and other possessions in settlement of the debt. There are other circumstances pointing to defendant as the'person who killed Bailey. All these circumstances, taken together, are consistent with the theory of defendant’s guilt and inconsistent with his innocence.

The argument is advanced that the court erroneously submitted to the jury the elements of manslaughter, and that the verdict of manslaughter in the second degree is wholly unsupported by the evidence. It may have been error to submit to the jury the elements of manslaughter, but the error is in defendant’s favor. It sometimes happens that, where the state must depend on circumstantial evidence, ’a jury is reluctant to assess a punishment commensurate with the offense proved. Jurors not skilled in analyzing and weighing evidence, when the possibility of an error is depicted and stressed by able counsel, are prone to distrust their judgment, and as a result “circumstantial evidence” and “reasonable doubt” too often bring about .acquittals or reduce punishment of guilty criminals. The punishment assessed is entirely inadequate for the offense proved. This evidence was before the jury; it was for them to say what weight should be given it, and to determine the credibility of the witnesses. The trial court was liberal toward defendant, and the trial was fairly conducted. We think counsel for defendant should congratulate themselves on securing so light a verdict.

The case is affirmed.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


text:
    JIM L. HOLLOWAY v. STATE.
    No. A-6070.
    Opinion Filed Nov. 19, 1927.
    Rehearing Denied Jan. 28, 1928.
    (263 Pac. 176.)

      Wright & Gill, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the superior court of Pottawatomie county on a charge of robbery with firearms, and was sentenced to serve a term of 15 years in the state penitentiary.

This is a companion case to No. A-5992, Young v. State, 39 Okla. Cr. 100, 263 P. 167, just decided. The evidence in this case is substantially the same as that in the Young Case. Defendant has filed the same brief with some additions as in the Young Case, the state has filed the same brief.

The principal assignments of error argued in this case have been considered and determined in the Young Case, supra. We adopt the reasoning stated there as applicable here without repetition.

There is in this case, however, the further assignment of error that the trial court made statements and comments indicating his opinion of the guilt of defendant. This contention is directed to this: After the jury was qualified and sworn, and before any evidence was taken, the court inquired if any one of the jurors had conscientious scruples against the infliction of the death penalty. Two of the jurors answered in the affirmative. The court then stated the two jurors would be excused. Counsel for defendant objected, and the court said:

“‘The objection is sustained, and the exception allowed. You two jurors will retain your seats, in the box. Gentlemen, I want the defendant to have a fair trial. I was only trying to protect the defendant. This law was made for the protection of the defendant.”

To which remarks defendant excepted, and the trial proceeded.

The offense charged (robbery, as defined by section 1, c. 85, Session Laws 1923, as amended by section 1, c. 44, Session Laws 1925) has as its maximum punishment the death penalty. Section 2676, subd. 8, Comp. Stat. 1921, provides in substance that a juror entertaining conscientious scruples against the infliction of the death penalty in capital cases which would .preclude his returning a verdict of guilty shall not be required, nor permitted, to serve on the jury. This court, in the case of Cardwell v. State, 20 Okla. Cr. 177, 201 P. 817, held in substance that, where the death penalty is provided as a punishment for crime, trial courts, without challenge, should excuse all jurors who have conscientious scruples to the degree stated against the death penalty, where such appears before the jury is sworn. After the jury is sworn, before evidence is taken, the juror should be excused, if challenged for cause by either side. See, also, Hopkins v. State, 9 Okla. Cr. 104, 130 P. 1101, Ann. Cas. 1915B, 736. It was proper for the trial court to have made the inquiry before the jury was sworn. After being sworn, before any evidence was taken, the challenge might have been interposed by either the state or the defendant. It cannot reasonably be contended that the action or statement of the court was an expression or intimation of opinion of defendant’s guilty. It was not prejudicial.

Complaint is further made of the court’s instructions Nos. 3 and 5. The state contends that this assignment of error is not properly .preserved, as it was not assigned as error in the motion for a new trial, nor assigned in the petition in error attached to the case-made. It appears for the first time in an amended petition in error attached to the case-made, which amended petition does not appear to have been filed. Counsel for the state also contend that no exception was taken to these instructions. It is unnecessary to determine that matter, as it is well settled that errors other than fundamental or jurisdictional errors which were not incorporated in the motion for a new trial and submitted to the trial court, and its ruling thereon excepted to and afterwards assigned as error in this court, cannot be reviewed here. Numerous authorities of this court support this rule. We have examined these instructions, they are substantially correct, and certainly present no fundamental or jurisdictional error.

The case is affirmed.

DOYLE, P. 'J., concurs.

DAYjENPORT, J., absent, not participating.


text:
    LEGUS BEARD v. STATE.
    No. A-6129.
    Opinion Filed Oct. 1, 1927.
    Rehearing Denied Jan. 28, 1928.
    (263 Pac. 172.)

      W. A. Bishop, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error was convicted on an information charging that in Seminole county, February 24, 1925, the said Legus Beard did willfully and unlawfully have in his possession about 120 gallons of corn mash, capable of being manufactured into corn whisky with the unlawful intent to. manufacture the same into corn whisky, and in accordance with the verdict of the jury was sentenced to pay a fine of $500 and to be confined in the county jail for six months.

The only error assigned is that the verdict is not sustained by sufficient evidence.

J. A. Doyle, sheriff, testified that with three deputies he visited the defendant’s place, near the church house just south of Seminole, about 2 miles, and found two barrels of mash and two stills; about 125 steps west of the defendant’s house found also a still worm and buckets; that there was a spring near by; that there is a plain beaten path that leads from there to the defendant’s house. The defendant did not testify.

The testimony by the state undisputed was clearly sufficient to sustain the verdict and judgment of conviction.

The judgment appealed from is therefore affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    CHARLEY CRANE et al. v. STATE.
    No. A-6068.
    Opinion Filed Jan. 21, 1928.
    (263 Pac. 173.)
    T. C. Greer and Hughes & Wells, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Tillman county on a charge of having the possession of a still, and were each sentenced to serve a term of 60 days in the county jail and to pay a fine of $250.

The record discloses that at the time charged certain officers had received information that a still was being operated on the extreme south border of the county, near Red river. They thereupon made a search, and, in a secluded spot in a gully concealed by woods, brush, and vines, they found a large distillery in operation, with it they found 14 sacks of sugar, 28 barrels of mash, 80 gallons of whisky, some malt, a camping outfit, and other paraphernalia connected with a distillery. The three defendants were in charge. The guilt of defendants is practically uncontroverted. Defendants filed an application to change the venue from the Frederick division of the county court of Tillman county to the Grandfield division, which was granted. The county judge, .by reason of being a witness, certified his disqualification, and John B. Wilson, a member of the bar, was selected as a special judge and presided at the trial. A motion to quash the regular jury panel was interposed, and the state confessed the motion. The sheriff was also a witness, and the court appointed a deputy sheriff to summon a special venire, from which the trial jury was selected. This is vigorously objected to on the ground that as the sheriff was disqualified the deputy sheriff was also disqualified. The record does not disclose whether or not defendants exhausted their peremptory challenges. Objections are interposed to each step in the procedure, and some irregularities and errors are apparent, but in the light of the record, the defendants being so clearly guilty, we think there is no such substantial error in any mat- ■ ter of procedure as requires a reversal.

Prior to the trial of this case a charge of felony alleging a conspiracy to violate the prohibitory liquor laws of the state was instituted in the district court of Tillman county, a trial had thereon, and the defendants convicted. The defendants in this proceeding in the. county court interposed a plea of former jeopardy on the theory that the conspiracy case in the district court was for the same offense as this case and was a bar to any further prosecution.

This court reversed the conviction on the felony charge (Crane et al. v. State, 38 Okla. Cr. 348, 261 P. 982) following the case of Taylor v. State, 38 Okla. Cr. 350, 261 P. 978, in which it was held that the conspiracy law (section 1652, Comp. St. 1921), under which the case in district court was prosecuted, had no application to the prohibitory law as conflicting with the prohibition enforcement sections of the Constitution. Under the authority of that case the district court was without jurisdiction in the conspiracy case set up by the defendants as .a basis for the plea of former jeopardy. There being no jurisdiction in the district court, there could be no jeopardy, and the plea was properly rejected by the county court.

The case is affirmed.

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


text:
    JOHN FIXICO v. STATE.
    No. A-6282.
    Opinion Filed Jan. 28, 1928.
    (263 Pac. 171.)

      Stephenson, Profitt & Stephenson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, John Fixico, was tried upon information whirh charged, in substance, that in Okfuskee county, on or about the 26th day of October, 1925, he did feloniously make an assault in and upon the body of one Eunice McKinney with a deadly weapon, a knife, <and then and there with said knife unlawfully, feloniously, without authority of law, and with a premeditated design to effect his death, did cut and stab the said McKinney, thereby inflicting certain mortal wounds of which said mortal wounds so inflicted the said McKinney did then and there die.

On the trial the jury returned a verdict finding him guilty of manslaughter in the first degree and fixing his punishment at imprisonment in the penitentiary for a term of 5 years. Motion for new trial was duly filed and overruled, and on January 30, 1926, the court pronounced judgment in pursuance of the verdict. From the judgment an appeal was duly perfected.

The main, if not the only, question presented is whether the evidence was sufficient to sustain the verdict.

The undisputed facts are that John Fixico stabbed his brother-in-law., Eunice McKinney, twenty-eight or twenty-nine times in various parts of the body with a knife, eight of the wounds being in the vicinity of the heart; at the time of the stabbing the defendant and the deceased were in the back seat of a Ford touring car, which belonged to the deceased. Sam McKinney, the son of the deceased, and Henry Buckley were riding in the front seat of the car; Sam McKinney was driving the car. All these parties were Indians, and all were somewhat intoxicated. Nobody seems to have seen just how the difficulty started or what caused it.

Sam McKinney, son of the deceased, testified that they drove to Weleetka and there got some whisky, then drove east of town and drank it, and from there they drove to Henry Buckley’s, and from there they started back to Weleetka, and while he was driving along he heard a noise and looked to see what was going on, and saw the defendant and the deceased scuffling, and he tried to make them quit; that he stopped the car and tried to open the door and let his father out, and the defendant stabbed him with a knife near the temple; that Henry Buckley was asleep on the front seat, and he woke up, got out of the car, and said to the defendant that was enough, that his father died within five minutes after the fight; that this occurred in Okfuskee county, about two hundred feet from the home of the defendant. The clothes that the deceased wore at the time were introduced in evidence.

At the close of the evidence for the state, the defendant moved for a directed verdict in the form of a demurrer to the evidence, which was overruled.

Henry Buckley testified that the deceased and his son, Sam, were both pretty drunk, and that the defendant was not drunk; that he did not know just how the fight started; that when he looked the deceased had the defendant down on the seat and was choking him; that he pulled him off and threw him over, and the defendant started to hit at him, and Sam McKinney came up, and the defendant hit him; that witness had been drinking but was not drunk® and the defendant seemed like he was drinking but he was not drunk.

As a witness in his own behalf, the defendant testified:

“I was sitting on the left side and he was on the right side, and I was just sitting straight, and I looked off and didn’t say a word, and he just grabbed me and pushed me on the floor of the car, and he began to holding here (indicating) and squeezed my head, and I tried to push him off first time, and I had to get my knife and cut him. I know if I didn’t have no knife he would kill me, and he would be sitting on this stand instead of me; if I didn’t get out that knife, I wouldn’t be setting up here now.”

He was then asked-

“Q. The only reason that^you stabbed McKinney was for fear you were going to lose your own life; wasn’t that it, John? A. Yes, sir.”

It is urged that:

The evidence in the case “is not only sufficient to raise a reasonable doubt, but it is sufficient to show absolutely that the defendant acted in his own self-defense, and at the time the defendant struck the deceased with his knife, he, the defendant, actually believed that his life Was in danger.”

And further, that:

“Nowhere in the evidence can it be found where any witness testified that the wound so inflicted by John Fixico was such as would produce death, or the death of the said Eunice McKinney was caused by the wounds inflicted by John Fixico.”

An examination of the record leaves no doubt in our minds as to the sufficiency of the evidence to justify submitting to the jury the question as to the defendant’s guilt.

The motion for a directed verdict was therefore properly overruled.

Assuming that the deceased was the aggressor, the rule is well settled that the bare belief of one assaulted that he is about to suffer death or great personal injury will not, in itself, justify him in taking the life of his adversary. There must exist reasonable ground for such belief at the time of the killing, and the existence of such ground is a question of fact for the jury. Hunt v. State, 29 Okla. Cr. 255, 233 P. 506.

The right to take another’s life in self-defense is not to be tested by the honesty or good faith of the defendant’s belief in the necessity of the killing, but by the fact whether he had reasonable grounds for such belief. Lee v. State, 33 Okla. Cr. 370, 244 P. 455.

As to the question of the sufficiency of the evidence to -show that the wounds inflicted by the defendant were sufficient to produce death, there can be no doubt. The testimony of the undertaker and three or four other witnesses was to the effect that there were seven or eight stab Wounds in the breast near the heart.

No other reason for reversing the judgment being urged and no substantial error appearing in the record, the judgment appealed from is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    CHEVES W. YOUNG v. STATE.
    No. A-5992.
    Opinion Filed Nov. 12, 1927.
    Rehearing Denied Jan. 28, 1928.
    (263 Pac. 167.)
    John T. Levergood and Wright & Gill, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the superior court of Pottawatomie county on a charge of robbery with' firearms, and was sentenced to serve a term of 25 years in the state penitentiary.

Defendant and Jim Holloway were jointly charged, a severance was taken. It appears from the record that on August 14, 1925, one B. F. Gereld conducted a country store three miles west of Tecumseh. Just before dark on the day charged a Ford roadster with two men in it was driven to the front of the store. The men got out and one asked to purchase some tobacco. Gereld went into the store for it; the man gave him a dollar in payment; he opened the cash drawer, at which time he testified the man whom he identifies as defendant put .a gun at his side and the other man, identified as Holloway, went behind the counter, pulled out the cash drawer and took the money.

The first contention argued is that' the evidence is insufficient to sustain the verdict. Upon this point Gereld positively identifies defendant as the man who pointed the gun and Jim Holloway as the man who took the money. James Clark, a witness, testified that he came to the store of Gereld at the time charged; two men besides Gereld were there; as he stopped on the porch one of them came out and went to a car. He identified this person as Holloway. As witness went in the store, he met the other man coming out, and, while he does not positively identify him, gives as his best opinion that it was defendant. There was also evidence that defendant and Holloway habitually associated with each other and drove a Ford roadster with an Illinois tag on it, bearing also an additional tag with the words “Chicago Heights.” There is further evidence that they were driving around together on the afternoon before the robbery in a Ford roadster which had this extra tag. On the night of and following the robbery they were seen driving this car, but the special tag bad been taken off. On the day following these extra tags were found in the turtleback of the car. There is some contention made that the evidence does not disclose that the robbery was committed by the use of a pistol. The record cléhrly refutes this claim. The defense was an alibi. Neither defendant nor Holloway testified. There is sufficient evidence to sustain the judgment. Its weight and credibility was for the jury.

It is next argued that the court erred in refusing defendant a new trial on the ground of newly discovered evidence. There is attached to the case-made what purports to be an addition authorized by order of this court made on June 15, 1926. This court made an order permitting defendant to withdraw the case-made for the purpose of correcting same. The matter attached to it, however, is ■ not a correction nor addition made under the direction of the trial judge, but is a copy of a motion, and certain papers attached certified by the court clerk that the papers attached were filed in the trial court, which papers include the motion and affidavit for new trial on the ground of newly discovered evidence. There is nothing to show that the matter was submitted to or that the trial court ever took any action on this motion. We assume from the papers attached that the trial court refused to take action on this motion on the ground of newly discovered evidence because it was not filed at the term at which the judgment was rendered or during a vacation, or during the next term of court, as required by section 2755, Comp. St. 1921. The judgment was rendered in September, 1925, at the July, 1925, term. The motion was not filed until April 3, 1926. The October, 1925, term of the superior court and also the January, 1926, term of said court lapsed before this motion was filed. This was too late. In order to avail in this court, a motion for a new trial on this ground must be filed in the time provided by the statute. Particularly is this true where it appears as in this case that the affidavit in support of the motion was made on October 16, 1925, well within time to have filed a motion in conformity with the statute. Parker v. State, 10 Okla. Cr. 541, 139 P. 708.

Complaint is further made that the trial court erred in giving a certain oral instruction to the jury and in remarks made in the presence of the jury. In the course of the trial evidence was offered as to the condition of the road near Tecumseh. In admitting this evidence the court said:

“The Court: Gentlemen of the jury, it is probably proper for the court to advise you here, this evidence is permitted to go to you as rebuttal. The defendant has interposed an alibi; that is, that he was somewhere else and could not have been at the place where the alleged crime was committed. This is allowed for the purpose of enabling you to arrive at whether or not he could have been at the place he said he was and at Gereld’s store.”

This it is argued is an instruction orally given and a comment on the weight of the evidence. No objection or exception, however, was made to the action of the trial court at the time this statement was made; it evidently being considered that limiting of the effect of this evidence was for the benefit of defendant; In the course of the trial the trial judge in a few instances asked questions of defendant’s witnesses to which complaint is made. It is argued that said questions tended to disclose the opinion of the trial judge as to the credibility of the witnesses. This we think, however, is not apparent. In one instance, howiever, objection was made to a question by defendant’s counsel of the witness Williamson as a repetition and suggestive. The court said:

“Objection sustained. It is a repetition and leading and telling him what to say. He is evidently willing to say it. Go ahead.”

This was error, but an examination of this witness’ testimony discloses he was extremely friendly to defendant, had volunteered somewhat in his answers, admitted that he farmed and made liquor and had been convicted for a violation of the liquor law. The question to which the objection was made was a repetition and leading. Under this state of the record, while the statement of the trial judge complained of was improper, it does not justify a reversal. There are some other incidental matters presented in the briefs, but none are of sufficient importance to call for discussion. Upon the whole record it is apparent that the case was fairly tried, the issues fairly submitted, and a verdict of guilty properly returned. We are of the opinion, however, that justice requires that the sentence be reduced to 15 years. While not a legal reason, this view is strengthened by the fact that the codefendant, separately tried for participating in this crime, was sentenced to only 15 years’ imprisonment.

As modified, the case is affirmed.

DOYLE, P. J., concurs.

DAV1ENPORT, J., absent, not participating.


text:
    REINHART G. MEIER v. STATE.
    No. A-5945.
    Opinion Filed Nov. 19, 1927.
    Rehearing Denied Jan. 28, 1928.
    (263 Pac. 165.)

      C. B. Leedy, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Ellis county on a charge of transporting whisky, and was sentenced to pay a fine of $50, and to serve 30 days in the county jail.

The record discloses that certain officers, about 11 o’clock at night on the date charged, intercepted a car at the town of Gage, in the front seat of which was defendant, who was apprehended, and one Wunsch, who escaped. In the' back of the car was eight half gallon fruit jars of whisky. Defendant was .armed with a double action Colts revolver. He stated to the officers at the time that he did not know the other person, who made his escape. There is also evidence that defendant attempted to induce the officers to permit him to escape. The car belonged to Wunsch. He had not been apprehended at the time of the trial. Defendant denied any interest in the car or the whisky, and testified that he did not know Wunsch was transporting whisky.

It is first argued that the court erred in refusing defendant’s requested instructions Nos. 2, 3, and 5. Request No. 2 is, in substance, that before the jury could convict they must find beyond a reasonable doubt that defendant either owned or operated the oar, or was aiding and abetting Wunsch in the transportation of said liqhor. Request No. 3 is, in substance, that before the jury could convict, they must find beyond a reasonable doubt that the car belonged to defendant, or that he drove it, or was instrumental in driving it, or that the liquor was the property of defendant,' or that he had interest therein, and aided or assisted in the transportation of the same. Request No. 5 is upon the law of circumstantial evidence.

Requested instructions 2 and 3 contain a principle of law which defendant was entitled to have submitted to the jury. However, the principle embodied was sufficiently covered and submitted to the jury in the court’s instructions Nos. 3, 4, and 6. It is not error to refuse requested instructions although a correct statement of the law, if the principle therein contained is covered by the court’s general charge. The case not depending wholly upon circumstantial evidence, the court wlas not required to submit that' issue to the jury.

The further contention is made that the evidence is not sufficient to sustain the verdict and judgment. This contention is not tenable. The defendant was found, as stated, late at night, some 1'5 miles from his home, .armed, in a car with another individual engaged in the transportation of whisky. He concealed from the arresting officers the identity of his companion. His solicitation to be permitted to escape indicates strongly his guilt. His testimony denying knowledge, interest or connection with the whisky was a question of fact for the jury. .The judgment will not be disturbed for insufficiency of the evidence.

The case is affirmed.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


text:
    ROSA BROUGHTON et al. v. STATE.
    No. A-6001.
    Opinion Filed Jan. 31, 1928.
    (263 Pac. 470.)
    H. J. Mackey and Matson & Mathers, for plain-tiifs in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiifs in error, hereinafter referred to as the defendants, were convicted in the county court of Oklahoma county of the crime of “having in their possession intoxicating liquors, to wit, forty-six pints of Choctaw; beer, .a, substance containing more than one-half of 1 per cent, of alcohol measured by volume,, and capable of being used as a beverage.”

The defendant Frank Roberts was sentenced to pay a fine of $50, and be imprisoned in the county jail of Oklahoma county for .a, period of 30 days from September 4, 192-5, and to pay the cost of the prosecution.

The defendant Rosa Broughton, who was informed against as Rosa Walker, was sentenced to pay a fine of $500, and be imprisoned in the county jail of Oklahoma county for a period of six months, and to pay the costs of the prosecution.

Motion for a new trial-was filed and overruled, and defendants duly excepted. From the judgment so rendered defendants appeal. Neither of the defendants have filed a brief supporting their assignment of errors, although the time for filing the same has long since passed. Where no briefs are filed, the court will examine the record proper, and, where no prejudicial error -is apparent, the judgment of the trial court will be affirmed.

After a careful examination of the record, the-court finds that the information is sufficient; that the testimony is sufficient to support the verdict; that the information stated the law as applicable to the facts in the cáse, and was fair to the defendants. And it appears that the defendants were otherwise accorded a fair trial.

The judgment of the trial court is affirmed.

DOYLE, P. J., and EDWARDS, J., concur.


text:
    Ex parte WALTER WIGGER.
    No. A-6821.
    Opinion Filed Jan. 31, 1928.
    (263 Pac. 112.)

      See, also, 39 Okla. Cr. 114, 263 P. 1112.
    J. W. S'talcup, for petitioner.
    Edwin Dabney, Atty. Gen., for respondent.
   EDWARDS, J.

On November 16, 1927, Walter Wigger filed in this court a verified petition for a writ of habeas corpus. He avers that he is unlawfully restrained of his liberty by the warden of the Oklahoma State Penitentiary at McAlester, Okla., and in substance further alleges that on January 8, 1'927, in the district court of Ottawa county he was tried and convicted of the crime of murder and by the verdict of the jury and the judgment of the court was sentenced to death by electrocution; that he desired to appeal from said judgment and sentence but is a poor person without money or property with which to procure the record for appeal; that he made an application supported by affidavit to procure the record for appeals as a poor person, and the judge of said district court refused and denied his petition, and as a consequence he is denied the constitutional and statutory right of appeal; that the time for appeal has expired and the petitioner is entitled to be discharged from such unlawful imprisonment. Attached to said petition is a certified 'copy of the judgment and sentence and a certified copy of the affidavit of petitioner dated January 15, 1927, filed in the district court of Ottawa county March 28, 1927. The affidavit sets out that he was convicted on a charge of murder, that he desires to appeal from said conviction to the Criminal Court of Appeals, that he is a poor person without means or property with which to pay the costs and has no friends or relatives willing or able to make security therefor, and he is unable to procure means with which to appeal or to give security for costs. This is the only showing made.

Upon the petition and attached exhibits this court issued to the warden of the state penitentiary .at Mc-Alester a rule to show cause. Return of said rule has been filed, which contests the truth of the statements made in the petition. Attached to the return is an affidavit of J. J. Smith, district judge, who presided at the trial of said cause in the district court, which among other things states:

* * That affiant has made no search of the records in the case of State of Oklahoma v. Walter Wigger (No. 1350) in said district court, and therefore has no knowledge of his own as to whether an application was, or has been, made and filed by said defendant requesting that a transcript, or case-made, be furnished him without cost to him and at the expense of the county, but affiant does know, and so states, that at no time, either in open court, in chambers or elsewhere, has such application been made or presented to him as judge of said district court; neither has such application, at any time, been granted, denied, refused, ruled, or passed upon, nor considered, nor has any order been made or given upon and concerning such matter, either in court, as a court, or in chambers as the judge of said court.
“Affiant says further that upon two or more occasions the matter above referred to was, and has been, discussed by and between J. W. Stalcup_, Esquire, attorney for the said Walter Wigger, and this affiant, and that said affiant, as such judge, in each and every instance advised and informed the said Stalcup that he, the said judge, would consider the application of the said Wigger, to the effect indicated, at any time such application, or request, was made and at any time the said Stalcup desired, the county attorney, of said county first having notice of such hearing or application, and if, and when, such application were made; that at one time the said Stalcup did, in fact, hand to this affiant an unfiled and unrecorded instrument, which proved to be an affidavit, as affiant remembers it, of the said Walter Wigger, and which, in general purport and effect, stated that the said Wigger was financially unable to pay for a record and transcript for appeal; that such affidavit was handed to affiant as he was leaving his office and while passing through the courtroom or corridor adjacent thereto, and that, upon reading the same, affiant either directed the said Stalcup to cause the same to be filed or else gave it to the clerk with directions to file such affidavit with the other papers in the case; that affiant has not since seen nor examined said instrument, but presumes it is a matter of record in the office of the court clerk. * * * Further: That anticipating an appeal in and of said cause to this honorable court, said affiant, as such judge, directed and instructed the reporter of said court to hold himself in readiness to make and prepare the proper case-made or transcript for such appeal, at such time as a request or application should be made and presented by the said Wigger or his counsel, and if, upon consideration, such application or request were allowed; that thereafter, and after the lapse of some considerable time, W. J. Farneman, court reporter, advised affiant herein that Mr. Stalcup, counsel aforesaid, had informed him that the idea of an appeal had been abandoned and that all further efforts, in and on behalf of said Wigger, would be made before the Governor for executive clemency; that thereupon this affiant dismissed the whole matter from mind, to have it recalled only upon the initiation of these proceedings. * * *”

There is further attached an affidavit of W. J. Farneman, reporter for said district court, which in part reads:

“* * * That I took the evidence in the case of State of Oklahoma, Plaintiff, v. Walter Wigger, Defendant (No. 1350), and that shortly after the motion for new" trial in said cause had been overruled by the court, I asked J. W. Stalcup, attorney for the defendant, if he was going to request me to make up a record. He said, ‘No, I am not; I am going to appeal to the mercy of the Governor.’ Affiant further sayeth that J. W. Stalcup, Walter Wigger, or any one else for him never requested me to make up a transcript or case-made in the above-entitled cause. * * *”

No counter showing is made nor does counsel for petitioner, who was his counsel in the trial in the district court, in any manner contest, contradict, or deny the statements of the trial judge and reporter just referred to. Section 6, Bill of Rights of the state Constitution, provides:

“The courts of justice of this state shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.”

Under this provision of the Constitution it has been frequently held by this court that a person convicted of a crime has the constitutional right of appeal upon the facts and the law, conditioned only upon a compliance with the requirements of law for the exercise of such rights. Where a defendant is unable to pay for the record and transcript of the evidence, it is the duty of the trial court upon proper application and showing to make an order requiring that the same be furnished defendant without cost. Jeffries v. State, 9 Okla. Cr. 573, 132 P. 823; Harris v. State, 10 Okla. Cr. 417, 137 P. 365 or 139 P. 846; Hutchins v. State, 13 Okla. Cr. 717, 167 P. 338. In a proper case, where an application to be furnished a transcript as a poor person is denied by the trial court, counsel for a defendant should file a petition in error in this court setting up such fact in order that a prop.er order to procure the record may be procured here. Young v. State, 33 Okla. Cr. 255, 243 P. 763.

Under the record before us, it is not made to appear that defendant has been denied his right of appeal. It rather appears that defendant long prior to the expiration of his time for appeal abandoned his intent to appeal, if he ever intended to do so, and elected to apply for executive clemency. While it is not within the record in this proceeding by habeas corpus, in this connection we may say, however, there was furnished to the Governor of the state under the provisions of section 2785, Comp. St. 1921, a certified transcript of the record and the evidence, which transcript was by the Governor submitted to this court, and an opinion has been rendered the Governor upon such request by this court to the effect that there has been an observance of the formalities of law essential to the infliction of the death penalty.

No reason for the interference with the judgment and sentence by this court is made to appear.

The writ is denied, and the stay of execution granted by this court is set aside.

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


author: EDWARDS, J.,

text:
    In re OPINION ON THE JUDGES. In re WALTER WIGGER.
    No. A-6889.
    Opinion Filed Jan. 31, 1928.
    (263 Pac. 1112.)
    See, also, 39 Okla. Cr. 108, 263 P. 1112.
   Opinion by

EDWARDS, J.,

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


author: PEN CUNIAM.

text:
    I. J. CLANK v. STATE.
    No. A-6266.
    Opinion Filed Feb. 1, 1928.
    (263 Pac. 680.)
    J. Vían Long, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PEN CUNIAM.

Plaintiff in error, I. J. Clark, was convicted on information charging that in Osage county, on or about the 25th day of December, 1925, he and others acting together did unlawfully and feloniously sell certain intoxicating liquors, to wit, whisky, to Earnest Bransteader, a minor, 17 years of age, and in accordance with the verdict of the jury he was sentenced to pay a fine of $50 and to imprisonment in the county jail for 6 months.

The case comes before this court upon a petition in error with a certified transcript of the record proper attached.

No brief has been filed and no appearance made in behalf of plaintiff in error in this court.

The questions presented are the same as in the companion case of I. J. Clark v. State, 39 Okla. Cr. 116, 263 P. 679, this day decided.

For the reasons stated in the opinion in that case, the judgment in this case is affirmed.


text:
    I. J. CLARK v. STATE.
    No. A-6265.
    Opinion Filed Feb. 1, 1928.
    (263 Pac. 679.)
    J. Van Long, for plaintiff in error.
    Edwin Daibney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, I. J. Clark, was tried, convicted, and in accordance with the verdict of the jury was sentenced to pay a fine of $100 and imprisonment in the penitentiary for a term of 1 year.

The case comes before this court upon a petition in error with a certified transcrpt of the record proper attached.

A number of errors are assigned, but no briefs have been filed and no appearance made in behalf of plaintiff in error in this court.

The information in this case, in substance, charges that in Osage county, on or about the 25th day of December, 1925, the defendant, I. J. Clark, and others did unlawfully and feloniously sell intoxicating liquors, to wit, whisky, to John C. Rubottom, a minor, 17 years of age.

The information is sufficient and the demurrer thereto was properly overruled. Rhodes v. State, 30 Okla. Cr. 2, 234 P. 645.

The only other question which can be determined upon the transcript is concerning the action of the court in refusing to order the court reporter to furnish the defendant with a transcript of the testimony in order to perfect his appeal.

It appears from the transcript that when the court rendered judgment the defendant filed his motion and affidavit, reciting:

“That by reason of my extreme poverty, I am unable to give security or pay costs or defray the expenses of having case-made in perfecting my appeal to the Criminal Court of Appeals of the state of Oklahoma, and respectfully asks this honorable court to order the court reporter to prepare and make case-made at the expense of the county of Osage.”

A hearing was had, but this record does not contain a transcript of the testimony. The order as shown by the transcript, omitting title 'and indorsement, is as follows:

“Now on this 3d day of May, 1926, this cause is called, on a motion and pauper affidavit of the defendant, to be permitted to appeal his cause of action as above to the Criminal Court of Appeals at the expense of Osage county, Okla., and defendant is present by his attorney and the plaintiff is represented by A. L. Jeffrey, assistant county attorney, the motion is argued and overruled for the reason that it appears to the court that said affidavit is untrue, to which ruling the defendant excepts, and exceptions are allowed.”

In the case of Hutchins v. State, 13 Okla. Cr. 717, 167 P. 338, it is held:

“Where the defendant has been convicted and desires to appeal, upon a proper showing made to the trial court that he is unable to pay the court reporter for a transcript of the testimony, or the court clerk for a transcript of the record, it is the duty of the trial court to make an order directing that this be done without expense to the defendant.”

In the opinion it is said:

“Under the Constitution and laws of this state an appeal may be taken by the defendant as a matter of right from a judgment of conviction in a criminal prosecution against him, and he is entitled to have this court review the proceedings had upon his trial and conviction when such appeal is taken according to law. Every citizen should feel and know that under our Constitution and laws there is no one so rich a,nd powerful as to be above the just penalties of the law, and no one so poor and humble as to be beneath its complete protection.”

By numerous decisions of this court it is held that that trial court has a large discretion as to when to order the stenographer’s notes to be extended without expense to the defendant, and this discretion will not be reviewed, unless it clearly appears from the record that it was arbitrarily used or abused. Harris v. State, 10 Okla. Cr. 417, 137 P. 365, 139 P. 846.

The exception to this rule is in capital cases. Where ' the trial results in a judgment and sentence of death and the defendant desires to appeal, it is the duty of the trial court to order the court clerk to furnish a duly certified transcript of the record and to order the court reporter to furnish á- transcript of the testimony without expense to the defendant. Noel v. State, 17 Okla. Cr. 308, 188 P. 688.

In the instant case, the trial court in denying the motion finds “that said affidavit is untrue.” Upon the record before us that finding is conclusive.

In Harris v. State, supra, it is held:

“Where a defendant is able to employ counsel to represent him, and the trial court refused to enter an order requiring the testimony to be extended without expense to the defendant, such refusal will not constitute ground for reversal, unless it affirmatively appears from the record that the defendant was a pauper, and that such counsel so employed could not have made up a statement of the evidence from memory, and that thereby the trial court had abused its discretion.”

The record before us fails to show whether or not a supersedeas bond was given and wholly fails to show an abuse of discretion on the part of the trial court in overruling the motion in question.

It follows from what has been said that the judgment appealed from must be and is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    ROY LEWIS v. STATE.
    No. A-6270.
    Opinion Filed Feb. 4, 1928.
    (263 Pac. 473.)

      C. H. Madden, W. M. Williams, Ross Cox, and A. M. Stewart, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
    called defendant, was convicted in the district court
   EDWARDS, J.

The plaintiff in error, hereinafter of Harmon county on a charge of rape in the second degree, and his punishment fixed at confinement in the State Penitentiary for a term of 6 years.

The information contains the- usual allegations that defendant accomplished an act of sexual intercourse with one Elmer White, a female of the age of 15 years, not the wife of the defendant. It sufficiently charges rape in the second degree.

The first assignment of error argued is that of variance between the proof and the allegations. The information charges the commission of the offense on August 30, 1925. Only one act of intercourse is sought to be proved, and the proof is the offense was committed on July 30. The prosecutrix in her testimony in chief testified the act was committed on the last Thursday night of August. On being recalled, she testified she was in error in her former testimony; that the act occurred on the last Thursday night of July. Complaint was made to the sheriff of the county on the night of the commission of the offense. He testified that he received this complaint late in the night of July 30 or in the early hours of the morning of July 31. The evidence seems conclusive that the discrepancy ill the date alleged in the information and in the testimony of the prosecutrix when first on the stand and when recalled is a mere error in the computation or the fixing of the time. This is the more apparent in view of the' fact that the information was not filed until December 6, more than four months after the commission of the offense. It is well settled that the state is not required to prove an offense took place on the exact date charged. A defendant may be convicted upon proof of the commission of the offense at any time within the statute of limitations and prior to the date upon which the information is filed. Section 2559, Comp. St. 1921.

It is argued that defendant did not have nor waive a preliminary examination on the charge for which he was tried, i. e., rape in the second degree, and that the court erred in overruling his motion to quash the information. The preliminary complaint charges rape in the first degree and is in the same language as the information except it contains the additional allegation that the offense was committed by force and violence, against the will and consent of the prosecutrix. It has been often held by this court that where a defendant in a preliminary complaint is charged with a felony and has or waives a preliminary examination, the information based on such proceeding must charge substantially the same offense as that charged in the preliminary complaint. It may vary, however, in degree, means, or circumstances. In the case of Payne v. State, 30 Okla. Cr. 218, 235 P. 558, this court said.

“By the term ‘substantially the same offense’ is meant offenses varying only in degree, or means, or circumstances. Thus where an offense for which an accused is held js divided into degrees, and the accused is held for the higher, an information may be filed for the lower, or where the details involved differ as to means, methods, or circumstances, and the charge in the information is for some form of that offense and not a different offense, the informing officer may vary the charge in formal and nonessential matters to meet the contingencies of the testimony. But he may not add or charge a new offense. The prosecuting officer, m other words, is not permitted to substitute his judgment for that of the committing magistrate. He must look to the commitment alone for his authority to file an information against an accused. In this particular he acts in a mere ministerial capacity, and is restricted to the crime designated in the commitment or transcript of the magistrate. This particular point seems not to have been heretofore expressly stated by this court. But under 'similar provision the foregoing rule is definitely stated. People v. Nogiri, 142 Cal. 596, 76 P. 490. State v. Potello, 42 Utah, 396, 132 P. 14; State v. Sheffield, 45 Utah, 426, 146 P. 306; Solice v. State, 21 Ariz. 592, 193 P. 19; State v. McGreevey, 17 Idaho, 453, 105 P. 1047. * * *”

Since the offense charged in the information is the same act and transaction charged in the preliminary complaint, there was no error in reducing the charge in the information to rape in the second degree instead of charging in the language of the preliminary complaint rape in the first degree.

It is also argued that the evidence is not sufficient to sustain the verdict and judgment. It is the settled holding of this court in the trial of cases charging rape that, where the testimony of a prosecutrix is not unreasonable or inherently improbable, her evidence alone may be sufficient to sustain a conviction. In the record before us, however, there is considerable corroborating testimony and numerous corroborating circumstances. There is testimony that as soon as the prosecutrix reached her home she made complaint of the offense committed upon her. On the following day she submitted to a medical examination by a physician, who found a laceration of the female organ and a recent rupture of the hymen. Under the assignment, defendant also complains that the prosecutrix is not a competent witness to testify to her own age. The authorities are generally unanimous against this contention. Stevens v. Elliott, 30 Okla. 41, 118 P. 407; Hunter v. State, 6 Okla. Cr. 446, 119 P. 445; 1 Encyc. of Ev. p. 735 (C).

It is also asserted that there is no evidence that prosecutrix was not the wife of defendant. The record discloses that after the announcement of rest, the state asked leave to reopen the case for the purpose of presenting further evidence. The following appears:

“The Court: What is your object?
"Mr. Austin: I don’t think the record quite shows clearly this prosecutrix was not the wife of the defendant.
"Mr. Stewart (Counsel for defendant) : We will admit she is not the wife of the defendant. * * *”

Without this formal admission, however, we think the circumstances shown sufficiently prove the prose-cutrix was not the wife of defendant.

Complaint is further made that the court committed error in permitting R. D. Miller, a member of the bar of Harmon county, to appear as special prosecutor. This contention is not based on the failure of the county attorney to control the proceedings. At the time the offense was committed, another young woman and two other young men were in the party with defendant and the prosecutrix. These other young men were jointly charged with defendant, but a severance was had. Mr. Miller was counsel for the other defendants. They were not witnesses, and there is nothing to indicate that they were present at the trial, and it is not claimed that Mr. Miller ever conversed with defendant. No authority has been called to our attention sustaining this contention. We are thoroughly familiar with the holding of this court in the cases of Steeley v. State, 17 Okla. Cr. 252, 187 P. 821, Hall v. State, 24 Okla. Cr. 197, 217 P. 229, and Ward v. State, 33 Okla. Cr. 182, 242 P. 575. None of these cases are in point. A codefendant may voluntarily testify against a defendant on trial, or he may be called by the state and required to testify. Sections 2696, 2697, Comp. St. 1921; Anderson v. State, 8 Okla. Cr. 90, 126 P. 840, Ann. Cas. 1914C, 400; Brown v. State, 9 Okla. Cr. 382, 132 P. 359.

We do not perceive why the mere fact of employment of an attorney by a defendant jointly charged operates as a disqualification against his appearing against a co defendant.

Lastly, complaint is made that there is misconduct of W. C. Austin, special counsel, in his argument to the jury in saying he w'as not receiving any fee in the case, but was assisting the county attorney, at his request, because he was interested in the protection of young girls. Proper objection and exceptions were taken. Whether or not this was in response to- any argument of defendant’s counsel the record does not disclose. This statement does not appear to be of such an inflammatory nature that we can say that it is per se error. We must assume that jurors have a modicum of common sense and understand that counsel who appear for the state or for defendant are not on trial, and their personal views-are not ¡necessarily of great importance. They certainly know the business of the jury is to determine the guilt or innocence of the defendant. They are instructed that is to be determined from the evidence introduced and the instructions of the court. Some latitude must be allowed counsel, or oratory will become a lost art. In passing upon questions of improper argument, the courts have had occasion to say that the range of discussion, illustration, and argument is very wide; counsel may quote Scripture or quote poetry, he may shout, pound the table, shed tears, and warn the jury of the prevalence of crime and plead with them to do their duty. Even when counsel go beyond the bounds of legitimate and proper argument, such conduct is not necessarily reversible unless the impropriety was such as may have influenced the verdict of the jury.

No error of sufficient importance to require a reversal is apparent. The case is affirmed.

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


text:
    GEORGE TAYLOR v. STATE.
    No. A-6389.
    Opinion Filed Feb. 6, 1928.
    (263 Pac. 683.)
    Gaylord R. Wilcox, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, George Taylor, was convicted of manslaughter in the second degree, and his punishment fixed at imprisonment in the penitentiary for a term of two years, upon an information charging, in substance, that in said county on the 30th day of October, 1924, he did while in a drunken and intoxicated condition, drive a Ford automobile into and against the person of one J. S. Terrell, thereby inflicting mortal wounds. From the judgment pronounced on the verdict on March 22, 1926, an appeal was perfected by filing in this court September 1, 1926, petition in error with case-made.

Since the appeal was taken the plaintiff in error departed this life as shown by the letter of his attorney of record, Gaylord R. Wilcox, attached to the Attorney General’s motion to dismiss the appeal.

In a criminal prosecution, the purpose of the proceedings being to punish the accused, the action must necessarily abate upon his death, and when it is made to appear that the plaintiff in error has died pending the determination of his appeal, the cause will be abated.

It is therefore considered, adjudged, and ordered that the proceedings in this cause do abate, and cause remanded, with direction to the trial court to enter its appropriate order to that effect.

EDWARDS and DAVENPORT, JJ., concur.