text:
    ELZA COOK v. STATE.
    No. A-5217.
    Opinion Filed Dec. 31, 1925.
    (242 Pac. 277.)

      Wright & Gill, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of having' possession of intoxicating liquor with intent to sell.

The evidence was procured by a search made under the authority of a search warrant issued by the police judge of Oklahoma City. Before the trial, defendant filed a motion to suppress the evidence obtained by said search warrant, which was overruled. During the trial, further objection was made to the introduction of such evidence, for the reason that the search warrant was illegal. The pro--hibitory law under which the search warrant was procured designates what officers may issue warrants for search under said act, specifying any judge of a court of record or any justice of the peace. Section 7009, Comp. Laws 1921. This is a special act for the enforcement of the prohibitory law, and this court has several times held that a search warrant under its provisions can be issued only by a judge of a court of record or by a justice of the peace, and that a police judge is without authority to issue a search warrant, and, where a search warrant is issued by a police judge, it is a nullity, and evidence obtained thereby, on timely objection, should be excluded. Terry et al. v. State, 31 Okla. Cr. 91, 237 P. 465; Reinhart et al. v. State, 32 Okla. 109, 240 P. 139.

The case is reversed and remanded, with instructions to dismiss.

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


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    CHARLIE JOHNSON v. STATE.
    No. A-5192.
    Opinion Filed Dec. 31, 1925.
    (242 Pac. 277.)
    S. J. Castleman, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

For convenience and brevity, the plaintiff in error will be referred to as defendant.

The defendant argues various errors as ground for reversal. His brief does not separately set out the errors relied on and no authorities are cited in support thereof. The errors complained of may be summarized as follows: First. Statement by counsel for the state to the jury that a codefendant not on trial had offered to take the stand and testify. Second. That the trial judge by questioning the defendant indicated a doubt of his veracity. Third. Error of the court in excluding evidence offered by defendant. Fourth. Insufficiency of the evidence.

The first assignment is not borne out by the record before us. It contains no recital that the argument complained of was made, nor is there any bill of exceptions saving the record on this point. Such objection first appears' in the motion for a new trial. If the argument complained of was made and it was desired to preserve an exception thereto, such remarks should have been taken down at the time and incorporated in the case-made, or have been embodied in a bill of exceptions. Otherwise, they are not reviewable by this court. In Tucker v. State, 9 Okla. Cr. 587, 132 P. 825, this court held:

“Exceptions must be saved to alleged improper remarks of the prosecuting attorney in his argument to the jury, and such remarks must be preserved by being incorporated in the case-made, or by bill of exceptions, duly allowed, to render them available on appeal; and, when not so preserved in the record, such remarks cannot be shown by affidavit or mere recitals in a motion for new trial.”

See, also, the cases of Thacker v. State, 3 Okla. Cr. 485, 106 P. 986; Reed v. State, 14 Okla. Cr. 651, 174 P. 800.

The second assignment cannot be sustained. While the court did ask several questions of the defendant, they are directed merely to making clear some points in the evidence, and we do not perceive that they would in any way indicate the opinion of the trial judge as to the credibility of the defendant. This court has frequently said that a trial judge should not indulge in cross-examination of witnesses, and particularly should refrain from any examination that would indicate his belief of the truth or falsity of any evidence. He is not, however, precluded from questioning on points that may seem obscure.

The complaint that the court excluded material evidence offered by the defendant is based on the exclusion of certain questions asked the wife of the defendant on her examination concerning statements made by a code-fendant. Although there was no offer of proof, by this evidence it was apparently sought to be shown that a co-defendant, Caldwell, had a talk with one Parr with reference to hauling certain sugar which was stolen at the time of the burglary. In legal effect this would tend "to prove that the codefendant, Caldwell, had confessed that he committed the burglary. It is generally held that such evidence is not admissible. In Davis v. State, 8 Okla. Cr. 515, 128 P. 1097, it was said:

“When a defendant is on trial for a violation of the criminal laws of Oklahoma, confessions or admissions alleged to have been made by other persons are not admissible in evidence, either in behalf of the state or the defendant, except for the purpose of impeaching the credibility of witnesses upon proper predicates therefor.” State ex rel. v. Stanfield, Judge, 11 Okla. Cr. 147, 143 P. 519.

The final contention that the evidence is insufficient is wholly untenable. The evidence is that on the night of the 23d day of February, 1923, the store of Holmes & Son, at Wilson, was broken into. One officer saw a Ford car containing sugar, with two persons in it, leave the rear of the store and go down a side street. Other officers were notified, and the car was followed and overtaken about four miles from town. The defendant was driving the car containing the sugar which belonged to him. A shot was fired to stop the car, and they abandoned it and fled. Defendant was arrested the next day and admitted his guilt to the arresting officers and told the circumstances of the burglary and the removing of the sugar. Upon the trial he testified that he was merely employed by his codefendant to haul the sugar aWay. The credibility of the witness and the weight and value of the evidence was for the jury, and they evidently believed the statements made by him as testified to by the officers after his arrest, and disbelieved his testimony that he was merely employed to receive and remove the stolen property. The defendant had a fair trial; the issues were fairly submitted. His guilt is abundantly proven by the evidence, and there is no reason for disturbing the verdict here.

The case is affirmed.

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


author: DOYLE, J.

text:
    CARL SEABA v. STATE.
    No. A-5376.
    Opinion Filed Jan. 22, 1926.
    (242 Pac. 779.)

      Walter Mathews, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty.Gen., for the State.
   DOYLE, J.

This is an appeal by transcript from the judgment of the district court of Kay county, wherein plaintiff in error was convicted upon a charge of burglary in the second degree, and his punishment assessed at a term of five years in the penitentiary.

The sole question presented by this appeal is the sufficiency of the information to charge a public offense, to wit, burglary in the second degree.

The assignment is based upon the proposition that the information does not sufficiently allege the ownership of the building burglarized, either in fee, as lessee, or otherwise.

The charging part of the information is as follows:

“That on the 9th day of April, 1924, in said county of Kay and state of Oklahoma, one Carl Seaba and J. R. Foley, then and there being, did then and there unlawfully and feloniously break and enter into a certain building and structure, in the nighttime of said day, in which there was no human being at the time of the breaking, to wit, the Richland Methodist Church, a trusteeship, located about one mile west, and four north, of the city of Tonkawa, and there being then and there personal property kept in said building, to wit, lamps, oil cans, song books, and other property, the kind being to your informant unknown, the said property being then and there the property of said church aforesaid, and the said defendants Carl Seaba and J. R. Foley did then and there, with the felonious intent on the part of them to break into and enter said building and structure aforesaid, the manner of the breaking being to the informant unknown, with the felonious intent then and there to take, steal, and carry away said property aforesaid, and to deprive said church of said property, the owner thereof, and the value thereof, and to convert the same to the use and benefit of them, the said Carl Seaba and J. R. Foley.”

The record shows that no demurrer was filed to the information; no general objection was taken that evidence should not be received because the information did not charge a crime; and no challenge to the information was presented during the trial.

The question was first raised after verdict by motion in arrest of judgment on the ground that the facts stated do not constitute a public offense.

The function of a demurrer, which was not resorted to by the defendant, is to defeat the information without a trial whenever it appears upon the face thereof that it is subject to one or more of the five objections named in the statute. Code Cr. Proc. § 2608, C. S. 1921.

These objections can be taken only by demurrer, “except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.” Id. § 2616.

Both at common law and by statute a verdict cures such imperfection of form in an indictment or information that does not tend to prejudice substantial rights upon the merits. Code Cr. Proc. § 2822, C. S. 1921.

The weight of authority is that the ownership of a building burglariously entered must be alleged in the indictment; or information; however an allegation of ownership is sufficient if laid in the lessee or tenant in possession. Simpson v. State, 5 Okla. Cr. 67, 118 P. 549.

Bishop says:

“In burglary ownership means any possession which is rightful as against the burglar.” 2 Bishop, Cr. Proc. § 137.

In this class of cases, as in cases of larceny, the necessity for any allegation as to ownership is for the sake of, and as a part of, the description of the offense.

We think that a reasonable construction and intendment of the allegation “the Richland Methodist Church, a trusteeship,” is sufficient to allege ownership of the church in the trusteeship. It is sufficient to negative the idea that the defendants at the time of entry had the right to enter, and it is sufficient to show that the entry was a trespass.

It has been repeatedly held by this court that, when the defendant enters his plea of not guilty, and waits until after the jury has been impaneled and sworn, and then for the first time questions the sufficiency of the information by objecting to the introduction of testimony on the ground of such insufficiency, the objection should be overruled, if in any reasonable construction or intendment the information can be sustained. White v. State, 4 Okla. Cr. 143, 111 P. 1010; Edwards v. State, 5 Okla. Cr. 20, 113 P. 214; McDaniel v. State, 8 Okla. Cr. 209, 127 P. 358; Wilsford v. State, 8 Okla. Cr. 535, 129 P. 80.

For the reasons stated, we are of opinion that the information sufficiently charges the crime of burglary in the second degree. It follows that the trial court did not err in overruling the motion in arrest of judgment.

The judgment of the lower court is accordingly affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    OSCAR MITCHELL et al. v. STATE.
    No. A-5360.
    Opinion Filed Jan. 22, 1926.
    (242 Pac. 777.)
    A. S. Wells, for plaintiffs in error.
    The Attorney General, for the State.
   DOYLE, J.

Under an information charging that in Harmon county, May 15, 1924, Oscar Mitchell and Earl Mitchell did have in their possession certain intoxicating liquor, to wit, about five gallons of choc and mash, which contained more than one-half of 1 per cent, of alcohol, measured by volume, and capable of being used as a beverage, with the unlawful intent to violate provisions of the prohibitory law, they were jointly tried and convicted, and in accordance with the verdict of the jury were each sentenced to pay a fine of $50 and be confined in the county jail for 30 days.

The appeal was lodged in this court December 9, 1924. No brief has been filed in behalf of the plaintiffs in error, and no appearance was made to orally argue the case at the time of its submission.

An examination of the record leaves no reasonable question in our mind as to the sufficiency of the evidence to sustain the verdict and judgment of conviction, and, finding no prejudicial error, the judgment of the trial court is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    FRANK BULLS v. STATE.
    No. A-5093.
    Opinion Filed Jan. 22, 1926.
    (241 Pac. 605.)
    A. M. Stewart and Wm. M. Williams, for plaintiff in error.
    George F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case, in substance, charged that in Harmon county, May 16, 1923, the defendant, Frank Bulls, against the will and consent of Grace Wilhelm, and by force and violence, sufficient to overcome her resistance, did have sexual intercourse with her ((the said Grace Wilhelm), a female person, and not the wife of the said defendant. On the trial, the jury returned a verdict finding the defendant guilty of rape as charged in the information, and fixing the punishment at confinement in the penitentiary for a term of 15 years. He has appealed from the judgment rendered on the verdict.

The first assignment of error is that the evidence is insufficient to sustain the verdict, in that it does not show force overcoming resistance.

The prosecutrix testified: That she was visiting her brother, who lived about 3 miles southeast of the village of Vinson. That she was 17 years old. That the defendant was at the time driving the school truck. That she visited the school with her brother’s children, riding with the defendant in the cab. That he told her he would see her some time that day. That evening, meeting the defendant at Moore’s store in Vinson, he asked her to go with him to a party at his home that night, and said he would call at her brother’s for her. That evening they started from, her brother’s in his buggy. Then he told her that there was not going to be a party and that they would go to prayer meeting. That on the road through Devil’s Canyon he grabbed her and told her it would not be good for her to scream, and by force, overcoming her resistance, had sexual intercourse with her; that she fought to the very last. That her left arm was bruised where he gripped her with his hand, and in the struggle he tore her bloomers and her skirt. That he said, “If you ever tell this, it won’t be good for you.” That she told him she was going to get out and walk back to her brother’s and he said. “You will not, you are going to prayer meeting with me.”

Vera Wilhelm, sister-in-law of the prosecutrix, testified that she returned home that evening about 10 o’clock and seemed to be troubled; that the next day she examined her underclothing and found that her bloomers and her skirt were torn.

Dr. J. C. McFadden testified that, on the request of the county attorney, he made an examination of prose-cutrix, May 21st, and found a bilateral rupture of the hymen, that in his opinion was caused by an act of sexual intercourse; that it appeared to be recent; that he found bruised places above and below her elbow on the left arm.

Ed Smith, sheriff, testified: That with Officer 'Car-rol he went to the home of the defendant on May 21st, and arrested him. That returning he had a conversation with the defendant in which he said that, if he had not quit this girl, she would not have said anything about this. That he told her he was 28 years old, did not want to marry, and, if she would give him a good time, he would quit his other girl and go with her, and she said she would, and a date was made to go to a party on Tuesday night. That on the road he proposed to have a good time, and she refused, but she told him if he would come back the next night she would carry out her promise, and the next night they started to prayer meeting, got about half a mile from Wilhelm’s house, and he asked her, and she refused, and he stopped his horse and told her she promised him a good time, and wanted to know if she was mistaken in what he meant; if she was, and wanted to be a lady, he would take her back, and she never said anything but leaned over on him, and he said, “‘I am taking it for granted that you want to do this as bad as I do and right here the thing is off.” That here witness asked the defendant if he thought the girl would become a mother over his conduct towards her, and he said, “No; I didn’t do anything but mess her up.” Then Mr. Carrol asked him if he had intercourse with the girl, and* he said, “Not over one inch penetration.” Then witness asked him if she ever consented, and the defendant said, “No; she fought me all the way through;” and he said to defendant, “It looks like she could not resist as large a man as you;” and the defendant said, “It is a bigger job than you think it is; every time I would start she would pull up her teddies and prevent me.” That he then asked the defendant if he knew what he was talking about admitting that there was penetration, and that she resisted him, and the defendant said, “Yes; I realize that they caught me; it was a dirty deal.”

The testimony of the defendant in his own behalf is as follows:

“I am 29 years old, I was raised here. On Tuesday evening Mrs. Oscar Wilhelm and Grace came into the store. I went to wait on them, and Grace asked me if there was a program at the school entertainment. I said, ‘No,’ but Wednesday night would be prayer meeting. She said maybe we had better get good and go. I told her all right; I would be down if it was so I could, and I said, ‘Suppose we take a drive to-night.’ .She said, ‘All right, we will call to see my cousin.’ So we went to see her cousin. That night I told her that I was not wanting to marry and was out for a good time, that if she could not show me a good time it would be useless for me to come back, and she told me she could not do anything for me that night, but to come back. I went back the next night and asked her about the proposition just across Devil’s Canyon; she would not do it.”

A number of witnesses were called who testified to the defendant’s good character as being a moral, upright man, and that they attended the prayer meeting and did not notice anything unusual in the appearance of the prosecutrix at prayer meeting that evening.

The testimony is voluminous, but the foregoing statement is sufficient to show that the jury was justified in finding that she resisted to the full extent of her ability, and that her resistance was overcome by force used by the defendant. From the defendant’s own testimony, it appears that he assaulted her with intent to rape, and he admitted to the officers that he overcame her resistance to the extent of accomplishing penetration. In our opinion, the testimony without any doubt is ample to sustain the conviction.

The instructions of the court submitted to the jury every element of the offense charged, and submitted the included offense of assault with intent to rape, and considered as a whole they were more favorable to the defendant than he had a right to demand.

Instruction No. 3, as given by the court, is in part as follows:

“But, in order to convict the defendant, the state must also establish, to your satisfaction, beyond a reasonable doubt, that the said prosecuting witness, Grace Wilhelm, resisted to her utmost capacity, and that her resistance was overcome by force and violence.” (Defendant excepts. A. S. Wells, Judge.)

Defendant’s requested instruction reads:

“You are instructed that, in cases of the character you are now considering, there must be evidence to show the utmost resistance on the part of the prosecutrix, and the utmost force to overcome such resistance on the part of the defendant, and you cannot convict the defendant of rape unless you find from the evidence beyond a reasonable doubt that the prosecutrix used all the force and means within her power to prevent the alleged rape, and that the defendant overcame such resistance by force and accomplished an act of sexual intercourse with the prosecutrix.” (Refused, exception allowed. A. S. Wells, Judge.)

The old rule of “resistance to the uttermost” is obsolete, and is repudiated by the more modern authorities. The law does not require that the woman shall do more than her age, strength, the surrounding facts, and all attending circumstances make it reasonable for her to do in order to manifest her opposition. In. reference to the degree of resistance required, the jury should he instructed that it is necessary, not that the prosecutrix should have made the uttermost resistance, hut that she has made such resistance as she was capable of making at the time. See 33 Cyc. 1506, and cases cited.

We have carefully considered the assignments of error based on exceptions reserved to rulings of the court in the course of the trial, and we are convinced that each and all of them are without merit.

It is claimed that the statement by the court in overruling the defendant’s request to require the state to elect whether the case should be submitted to the jury under the question of force, overcoming resistance, or whether she was prevented by means of threats of immediate and great bodily harm, accompanied ;by apparent power of execution, preventing such resistance, was in effect a comment on the weight of the testimony.

The record shows that the remark complained of was not excepted to, and it further appears that the court in its instructions did in effect require an election on the part of the state by limiting the jury to rape by force overcoming resistance, as defined by subdivision 4, § 1834, C. S. 1921, and did not submit the issue under subdivision 5 of said section.

After a careful examination of the record, we conclude that there was no error which could have been prejudicial to the substantial rights of the defendant.

The judgment of the lower court is accordingly affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


author: BESSEY, P. J.

text:
    PAUL D. WASSON v. STATE.
    No. A-5365.
    Opinion Filed Jan. 23, 1926.
    (242 Pac. 779.)
    I. E. Hill, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

Paul D. Wasson, plaintiff in error, defendant in the trial court, was convicted of the illegal transportation of whisky, with his punishment assessed at a fine of $400 and confinement in the county jail for a period of 5 months.

The defendant drove in the nighttime to a place where some officers were with a search warrant in process of execution. The officers told the defendant to stop, but, contrary to their order, he drove rapidly away, throwing several containers of liquor from the car as he drove through a nearby field.

The defendant offered no evidence in the trial court, and has filed no brief to support his appeal. An examination of the whole record leads us to the conclusion that the evidence used against the defendant was not procured by ah unreasonable search and seizure, and is amply sufficient to support the verdict, and that in other respects the legal rights of the defendant were protected in the trial court.

So far as we are able to interpret this record, it seems that this was a sort of joint enterprise among friends, involving the transportation of whisky to be divided for their separate use; that none of them was engaged in the transportation of whisky for profit. Under such circumstances it would seem that the penalty assessed was unusually severe, and the judgment is therefore modified to a fine of $200 and confinement in jail for a period of 60 days.

The judgment as so modified is affirmed.

DOYLE, and EDWARDS, JJ., concur.


text:
    B. W. LOWRANCE v. STATE.
    No. A-5095.
    Opinion Filed Jan. 23, 1926.
    T (242 Pac. 862.)

      H. T. Church, for plaintiff in-error.
    George F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case, filed in the district court of Latimer county July 19, 1923, in substance charged that, in said county, on or about the 28th day of April, 1923, B. W. Lowrance did, with the felonious intent to kill, shoot one Bud ¡Sales with a pistol. On the trial the jury returned a verdict finding the defendant guilty of assault with intent to kill as charged in the information, fixing his punishment at imprisonment in the penitentiary for a term of two years and nine months. From the judgment rendered on the verdict he appeals.

The evidence shows: That Sales was a tenant on the farm of this defendant. On the part of the state it shows: That the defendant became angry at Sales because Sales refused to permit the defendant to put a mortgage on his. share of the growing crops in order that the defendant might purchase a team of mules. That the defendant shot Sales at a time when he was assisting his wife, Mrs. Sales, in doing some farm work. That he shot Sales in- the back, the bullet ranging upward and forward and lodging near the navel. That Sales was unarmed, and was at least 45 feet from the defendant at the time he was shot. That the defendant fired, first, a shot that missed him, and then shot again at the time Sales was evidently running from him.

The defendant claims that Sales became angered at him because he would not buy any more groceries for him under his rental contract; that Sales also accused him of having forged his (Sales’) name to a note and mortgage at the bank of Red Oak; and that the trouble which resulted from the shooting was the result of Sales’ anger towards the defendant because of the things above stated. The defendant testified that, at the time he shot Sales, Sales was making an effort to draw a pistol from his hip pocket.

The defendant filed a motion to set aside the information on the ground that no indorsement or order was made and entered on the preliminary complaint by the committing magistrate directing that the defendant be held to answer.

From the record it appears that on July 14, 1923, the defendant appeared in person and waived preliminary hearing, whereupon he was held to answer to the district court for the crime of assault with intent to kill. A transcript of the proceeding attached to the complaint, signed, “H. E. Larty, Justice of the Peace,” was filed in the district court July 14, 1923. The overruling of the motion is assigned as error.

In Williams v. State, 6 Okla. Cr. 373, 118 P. 1006, it is said:

"Under the constitutional provision the precedent fact that a preliminary examination has been had or waived constitutes the jurisdictional basis for a prosecution for a felony by information in the district court, and, even though the examining magistrate failed to indorse his finding and order on the preliminary information, the district court had jurisdiction to order that a proper indorsement as prescribed by the statute be made. The finding and order of the magistrate made upon the preliminary examination and entered on his docket was sufficient to confer jurisdiction on the district court.”

And see Tucker v. State, 9 Okla. Cr. 587, 132 P. 825; Sayers v. State, 10 Okla. Cr. 195, 135 P. 944; Norwood v. State, 14 Okla. Cr. 637, 169 P. 656.

Upon the record before us the motion to set aside was properly overruled.

The next assignment is that the court erred in overruling the defendant’s application to take testimony of nonresident witnesses. When the case was called for trial, October 1st, the defendant filed an application for a commission to take the depositions of Albert Talley, Miami, Ariz., and John C. Claxton, Canyon City, Colo.

In the affidavit in support of said application the defendant stated:

“That the witness Albert Talley would testify that on the day of the shooting he was a resident of the town of Red Oak, Okla. That on the forenoon of said day he heard Bud Sales say to the defendant, ‘Damn you, you had better get me some groceries, and if you don’t I will see you before you get home and give you a damn good whipping,’ and that said Sales was very angry at the time he made such statements. That the witness, John C. Claxton, would testify that for about one year prior to the shooting he had made his home with the defendant. That Bud Sales is his nephew. That on divers and different occasions within about a month before the shooting he heard Bud Sales make threats against the defendant to the effect that he was going to give the defendant a damn good whipping.”

At the same time the defendant filed a motion for a continuance for the term, and, if such continuance cannot be had, that the trial be stayed so as to enable defendant to obtain the testimony of said nonresident witnesses. The overruling of the application for a commission and motion for continuance is assigned as error.

The right to take and use depositions of a nonresident witness in behalf of a defendant in a criminal case is statutory, and the procedure prescribed for taking and returning the same 'must be substantially complied with in order to make such depositions competent and admissible. Under the provisions of article 17, Proc. Cr. (C. S. 1921, p. 1303), the application must be upon affidavit and must be made to the court or judge, and must be upon five days’ notice to the county attorney. Here no notice had been given before the case was called for trial. Evidently the trial court was satisfied that due diligence was not shown.

In Ennis v. State, 13 Okla. Cr. 675, 167 P. 229, L. R. A. 1918A, 312, this court stated the rule to be, in substance, that if the record disclosed the testimony of the absent witness was merely cumulative, and that the defendant had other witnesses by whom the facts sought to be obtained by the depositions could be established, and that no different result would probably have occurred had such deposition been taken, it being a matter of discretion of the trial court to allow such commission, where the record discloses the facts as above indicated, there would be no abuse of discretion in overruling the application.

We think the application lacks the evidence of good faith as well as that of due diligence, and we are satisfied that there was no abuse of discretion in denying the same and in overruling the motion for a continuance. •

It is also contended that the trial court erred in permitting the county attorney to indorse the names of additional witnesses on the information at the time of his arraignment six days before the ease was called for trial.

Our Code provides (section 2511, C. S. 1921) that the county attorney shall indorse thereon the names of the witnesses known to him at the time of filing the information, and shall also indorse thereon the names of such other witnesses as may afterwards become known to him, at such time as the court may by rule prescribe. By numerous decisions of this court it is held that it is within the discretion of the trial court to permit names to be indorsed on the information after trial has commenced. Bradshaw v. State, 18 Okla. Cr. 624, 197 P. 715, 185 P. 1102; Starr v. State, 9 Okla. Cr. 210, 131 P. 542.

A number of exceptions were taken to rulings of the court in giving and refusing instructions. We have carefully examined the same, and our conclusion is that, taken as a whole, the law of the case is fairly presented in the instructions given.

Other questions are argued by counsel, but we deem It sufficient to say that the record shows that the case has been well and fairly tried, and if there has been any mistake it has been of a character so purely technical as to have occasioned no injury to the defendant.

We see no reason to doubt that this conviction was justified by the evidence, and, finding no prejudicial error in the record, the judgment of the trial court is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    Webb v. State
    No. A-5290.
    Opinion Filed Jan. 23, 1926.
    (242 Pac. 784.)
    Robertson & Lillard, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

This was a conviction for the illegal transportation of corn whisky, with the punishment of plaintiff in error fixed by the jury at a fine of $50 and confinement in the county jail for a period of 60 days. For convenience the plaintiff in error is herein referred to as the defendant.

Two peace officers, who knew the defendant personally, and knew the reputation of the places he frequented, saw the defendant driving about the streets and alley of Oklahoma City in such a manner as to excite suspicion. Finally he stopped his car at the rear of I414 South Robinson street, and took from the car two parcels, each in an open paper bag'. As he ascended the rear stairway of the building the officers, without a warrant or other process, apprehended and arrested the defendant (just what occurred at this time the record does not exactly disclose) ; whereupon the defendant said, “You got me this time.” On inspection by the officers one paper bag was found to contain a bottle of corn whisky and the other a jug of whisky. One of the officers took the defendant into custody, and the other took the whisky to the sheriff to be preserved as evidence.

The defendant offered no evidence in his own behalf, resting his case upon the claim that all of the evidence on the part of the state was obtained by an illegal search and seizure.

The constitutional prohibition against unreasonable searches and seizures was designed to protect and make sacred against invasion the homes of individuals, and to guard against arrests of persons on mere suspicion without a warrant. Under the state of facts disclosed by this record we are unable to say whether this was an attempted arrest upon mere suspicion or whether it was for a misdemeanor perpetrated in the presence of the officers.

Be this as it may, the right to the exclusion of evidence claimed to have been procured by an illegal seizure may be waived, and is waived, where the accused fails to object to its introduction at the first opportunity after he is apprised of the fact that such evidence will be used against him. In this instance from the very nature of things the defendant knew from the beginning that the state’s case would stand or fall upon this class of evidence alone. The defendant did not object until after the state had by proof covered the whole objection. The objection made then came too late. Gore v. State, 24 Okla. Cr. 394, 218 P. 545; Committi v. State, 28 Okla. Cr. 380, 231 P. 316; Fields v. State, 31 Okla. Cr. 121, 236 P. 633.

A defendant will not be permitted to speculate on the outcome of the state’s case, and, after ascertaining that the state’s evidence is of an incriminating nature, then, for the first time, interpose an objection that it was illegally obtained.

The claim of the defendant that the evidence of illegal transportation is not established because no showing was made that the possession of the liquor was illegal is without merit. Under circumstances like this the presumption is that such possession is illegal. If the defendant has the liquor for a legal purpose, that would be an affirmative defense, to be established by the defendant. It would be a violent presumption to hold that this kind of liquor, conveyed in the manner shown in the record, was had for an innocent or legal purpose.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    JONAS De ARMAN v. STATE.
    No. A-5184.
    Opinion Filed Jan. 23, 1926.
    (242 Pac. 783.)

      J. A. Minton, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

Plaintiff in error, defendant below, was charged, tried, and convicted of maiming another, with his punishment assessed by the court at confinement in the penitentiary for a term of two years.

The evidence on the part of the state ténds to show that the defendant voluntarily and without provocation assaulted a Syrian shoe cobbler, an invalid, named Mal-louf, as the latter was returning from his physician’s office to his work bench; that the defendant struck Mallouf with his fist, knocking him prone upon the sidewalk; that he kicked him in the bowels, and, as Mallouf kept trying to arise, repeatedly knocked him back down on the sidewalk and into the street. In the course of the affray, Mallouf’s hip bone and one finger were broken. The fracture of the hip bone caused one leg to be shorter than the other, and this injury a number of physicians testified was permanent.

The testimony of the defendant and his witnesses was to the effect that Mallouf was the aggressor, and that the defendant did no more than defend himself; that the injuries sustained by Mallouf were accidental and without any felonious intent on the part of the defendant to injure him.

This prosecution was predicated upon the provisions of article 22 of the Criminal Code, Compiled Statutes of 1921, of which sections 1765, 1768, 1770, and 1771 are as follows:

“Any person who, with premeditated design to injure another, inflicts upon his person any injury which disfigures his personal appearance, or disables any member or. organ of his body, or seriously diminishes his physical vigor, is guilty of maiming.”
“To constitute maiming it is immaterial by what means or instrument, or in what manner the injury was inflicted.”
“A design to injure, disfigure or disable is inferred from the fact of inflicting an injury which is calculated to' disfigure, or disable, unless the circumstances raise a reasonable doubt whether, such design existed.”
“A premeditated design to injure, disfigure or disable, sufficient to constitute maiming, may be formed instantly before inflicting the wound.”

An extended analysis of a number of the assignments of error urged by the defendant would serve no good purpose. These are sufficiently treated in the Attorney General’s brief, to which the parties interested have access. With the exception of the question of premeditated design, the court, in substance, adopts the conclusions of the Attorney General.

In a prosecution for maiming, under the statute quoted, a “premeditated design to injure another” does not mean that there must be a design to maim the person injured in the exact way or to the extent actually perpetrated. Premeditated design is an element of the offense, but the design may be shown by proving a battery deliberately committed in a cruel way, or by methods or means likely to result in physical injury to the person assailed, though without an intent to inflict the particular injury sustained. White v. State, 22 Okla. Cr. 131, 210 P. 313; 26 Cyc. subject “Mayhem.”

This defendant probably had no intention of breaking this man’s hip bone, or his finger, but, according to the state’s testimony, it is manifest that, when he knocked this disabled man down and brutally kicked him in the region of his bowels, and continued the assault by repeatedly knocking him prone upon the pavement, he had a premeditated design to injure him, within the meaning of the statutes quoted. The proof is also conclusive that the victim of the assault was permanently injured and disfigured.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    Ex parte MRS. NAN ROGERS.
    No. A-6024.
    Opinion Filed Jan. 23, 1926.
    (242 Pac. 781.)
    Parrick & Harley, for plaintiff in error.
    The Attorney General, and Smith C. Matson ' and Houston B. Teehee, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The petitioner, Mrs. Nan Rogers, was held on a rendition warrant issued by the Governor of this state, predicated upon a requisition from the state of Florida, showing or tending to show that the petitioner is a fugitive from justice from the state of Florida, seeking asylum in this state. Pending the delivery of the petitioner to the agent of the state of Florida, she asks to be released on habeas corpus in this court, upon the ground that the requisition was not executed and authenticated according to law; that the requisition and documents supporting it do not show that an offense against the laws of Florida has been committed by the petitioner; and because the requisition is not supported by a copy of an indictment found or an affidavit made before a magistrate, as provided in U. S. Comp. St. 1901, p. 3597 (U. S. Comp. St. § 10126).

The extradition warrant is supported by an information filed and pending in the criminal court of record of the county of Dade, state of Florida, sufficiently charging the petitioner with the crime of false pretense. The petitioner claims that an information cannot be substituted for an indictment within the meaning of the federal extradition law, supra, and that the extradition process is not supported by an affidavit of a magistrate, within the meaning of the federal statute.

A charge of crime by information has in many cases been held to be a compliance with the federal statute regarding the necessity for “indictments found, or an affidavit made before a magistrate.” 11 R. C. L. 743, 112 Am. St. Rep. 135.

In the case In the Matter of Strauss, 197 U. S. 324, 25 S. Ct. 535, 49 L. Ed. 774, Mr. Justice Brewer, speaking for the court, said:

“Under the Constitution each state was left with full control over its criminal procedure. No one could have anticipated what changes any state might make therein, and doubtless the word ‘charged’ was used in its broad signification to cover any proceeding which a state might see fit to adopt by which a formal accusation was made against an alleged criminal. In the strictest sense of the term a party is charged with crime when an affidavit is filed, alleging the commission of the offense and a warrant is issued for his arrest, and this is true whether a final trial may or may not be had upon such charge. It may be, and is true, that in many of the states some further proceeding is, in the higher grade of offenses at least, necessary before the party can be put upon trial, and that the proceedings before an examining magistrate are preliminary, and only with a view to the arrest and detention of the alleged criminal; but extradition is a mere proceeding in securing arrest and detention. An extradited defendant is not put on trial upon any writ which is issued for the purposes of extradition, any more than he is upon the warrant which is issued by the? justice of the peace directing his arrest.”

Portions of the Constitution and the law relating to charges and prosecutions for crime in the criminal courts of record of the state of Florida indicate that the information supporting the extradition process herein was drawn, filed, and is now pending in such court in Dade county, Fla., pursuant to legal modes of procedure in that state.

In an extradition case it is not the duty of the Governor or the courts of this state to inquire into or consider the expediency of the modes of criminal procedure adopted and in force in a sister state, so long as that mode of procedure is within the spirit and terms of the federal Constitution and statutes relating to extradition.

Quoting again from the Strauss Case, supra:

“Why should the state be put to the expense of a grand jury and an indictment before securing possession of the party to be tried? It may be true, as counsel urge, that persons are sometimes wrongfully extradited, particularly in cases like the present; that a creditor may wantonly swear to an affidavit charging a debtor with obtaining goods under false pretenses. But it is also true that a prosecuting officer may either wantonly or ignorantly file an information charging a like offense. But who would doubt that an information, where that is the statutory pleading for purposes of trial, is sufficient to justify an extradition? Such possibilities as these cannot be guarded against. While courts will always endeavor to see that no such attempted wrong is successful, on the other hand, care must be taken that the process of extradition be not so burdened as to make it practically valueless.”

We hold, therefore, that the showing made in support of the extradition process is sufficient. The writ is disallowed, and the petitioner remanded to the custody of the agent of the state of Florida, to be dealt with as the law directs in extradition cases.

DOYLE and EDWARDS, JJ., concur.


text:
    FATE DODSON v. STATE.
    No. A-5050.
    Opinion Filed Oct. 30, 1925.
    Rehearing Denied Jan. 23, 1926.
    (242 PaC. 578.)
    H. L. Adkins, A. A. Brown, and Sylvester Grim, for plaintiff in error.
    The Attorney General and Chas. HiH Johns, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

Plaintiff in error, defendant in the trial court, was charged with the murder of Clarence Trammell, and found guilty of manslaughter in the first degree, with his punishment fixed at imprisonment in the penitentiary for a term of 25 years.

The several assignments of error set out in defendant’s brief may be grouped thus: First, error in the refusal of the court to grant a change of venue; second, that the evidence is insufficient to support the verdict; third, that instruction No. 21, given by the court, was erroneous and prejudicial to the rights of the defendant.

In the motion for a change of venue, it was urged that the citizenship throughout the entire county was prejudiced against the defendant to such an extent that he could not be afforded a fair trial within the county. In support of this motion it was stated that Clarence Trammell, the deceased, was the son of R. L. Trammell, who had been sheriff of Roger Mills county covering a period of 12 years; that R. L. Trammell was acquainted with practically every adult citizen in the county, and that he was held in high esteem by the citizenship of the county everywhere; that the tragic demise of his son had created a sympathy in favor of the Trammell family and feeling against the defendant; that Clarence Tram-mell, the deceased, had himself been a deputy sheriff, and had a wide acquaintance throughout the county; that he was widely and favorably known in many parts of the county, and that the citizens of the county generally became enraged and excited, based upon rumors and purported facts surrounding the homicide; that after the defendant’s arrest he was immediately taken to the jail in Beckham county to avoid danger of mob violence in Roger Mills county; that a large number of citizens in the county seat and elsewhere had contributed money to employ special counsel to prosecute this defendant; that the sentiment created by the enemies of the defendant and the friends of the deceased had become so strong and universal throughout the county that the defendant could not have a fair trial in Roger Mills county. These claims were supported by the affidavit of the defendant and the affidavits of six others, residing in various parts of the county.

The county attorney resisted the application by filing eleven affidavits, signed by 136 citizens. These controverting affidavits were circulated in all parts of the county, and were to the effect that there was no general personal prejudice existing against the defendant, and that there was a sufficient number of citizens in the various communities of the county who had not heard the facts, and that there was no reason why the defendant could not have a fair trial in Roger Mills county. The county attorney further made a showing that there was no demonstration of mob violence within the county, and that the reason the defendant was not confined in jail within the county was because at that time there were no adequate jail facilities in the county, that there was no demonstration of hostile feeling at the preliminary hearing, and that, after the defendant was released on bond, he went from place to place within the county without being molested, and that no threats of mob violence were made by any person.

After consideration of the affidavits and oral testimony, this application for change of venue was by the court overruled.

The granting of a change of venue lies in the sound and impartial discretion of the trial court, and, unless it appears that such discretion has been abused, the appellate court will not disturb the ruling of the trial court. Tegeler v. State, 9 Okla. Cr. 139, 130 P. 1164; Maddox v. State, 10 Okla. Cr. 569, 139 P. 994; Gentry v. State, 11 Okla. Cr. 355, 146 P. 719.

The mere fact that the deceased was well known in many parts of the county should not operate to the disadvantage of his family and friends, unless it is made to appear that such friendship amounted to prejudice such as would interfere with the defendant’s having a fair and impartial trial. That the trial judge did not err in refusing to grant a change of venue is confirmed by what appears in the affidavits and the oral testimony adduced in resisting the application, along with the facts that an examination of the whole record discloses that subsequently there was no difficulty in procuring an unbiased jury, and that no demonstration or other evidences of prejudice were made manifest at the trial.

The assignment of error that the evidence is insufficient to support the verdict must likewise be rejected. One witness testified positively that the defendant was the aggressor and fired the first shot in the fatal difficulty without any hostile demonstration on the part of the deceased. Another witness testified that he did not see the firing of the first shot, but his testimony shows that the things he did observe indicate that the defendant was the aggressor, and that the fatal shots were fired under such circumstances as to indicate that the homicide was committed with a premeditated design, or in the heat of passion without justification. True there was testimony in direct conflict with that of these two and other witnesses for the state, but it has been so often held by this court as to require no citation of authorities that the weight of the testimony and the credibility of the witnesses ife for the jury.

After the court had properly and fairly instructed the jury upon the different phases of justifiable homicide, he gave the following instruction, instruction No. 21:

“If you do not believe from the evidence beyond a reasonable doubt that the defendant is guilty of murder, but do believe from the evidence beyond a reasonable doubt that he (the said Fate Dodson), either in a heat of passion, or unnecessarily, while resisting an attempt by the said Clarence Trammell to kill him or to do him some bodily injury, and after such attempt shall have failed, if you find from the evidence beyond a reasonable doubt that it did fail, did then and there make an assault in and upon the said Clarence Trammell with a certain firearm and revolver then and there held in the hands of him, the said Fate Dodson, though without premeditated design to effect the death of the said Clarence Trammell, and did then and there fire, shoot, and discharge the said firearm at and into the said Clarence Trammell without authority of law, then and thereby inflicting upon the body of the said Clarence Trammell certain mortal wounds of which the said Clarence Trammell did then and there die, then it will be your duty to convict the defendant, Fate Dodson, of manslaughter in the first degree and so say by your verdict, unless you should find that at the time of the homicide it reasonably appeared to the defendant, under all the facts and circumstances in the case, viewed from his standpoint, that it was necessary at the time of the killing to take the life of the deceased, in which event the killing would be justifiable homicide, and the defendant should be acquitted,”

The defendant earnestly insists that the qualifying clause at the end of the instruction, beginning with the words, “unless you should find,” etc., shifts the burden of proof to the defendant, and that for this reason this instruction is erroneous and prejudicial, and that the error is not cured by other instructions upon reasonable doubt and burden of proof.

This court has firmly adhered to the principle that the burden of proof on the whole case is on the state, and that, if there exists any reasonable doubt as to. any essential element of the crime charged, the defendant should be acquitted. On the other hand, this court will not indulge in abstruse shades of meaning in the consideration of particular clauses of an instruction, where, from a reading of the whole instruction, it appears that the jury could not have been misled. Jurors are not prone to consider hidden, obscure phases of qualifying clauses.

Reasonably construed, this qualifying clause did not shift the burden of proof to the defendant. In a preceding instruction the court told the jury that, if they had any reasonable doubt as to whether the defendant acted in self-defense, they should acquit him. Later, to the same effect, in two other instructions, the jury were admonished to accord the defendant the benefit of every reasonable doubt.

The instructions in this case, singly and as a whole, were different in various respects from those in the cases cited by the defendant. Johnson v. State, 5 Okla. Cr. 13, 113 P. 552; Smith v. State, 12 Okla. Cr. 489, 159 P. 668; Brown v. State, 14 Okla. Cr. 115, 167 P. 762; Brown v. State, 15 Okla. Cr. 64, 175 P. 66; Slate v. State, 15 Okla. Cr. 201, 175 P. 843; Carter v. State, 12 Okla. Cr. 164, 152 P. 1132; MCClatchey v. State, 12 Okla. Cr. 173, 152 P. 1136.

If in this case there had been no other instructions given relating to reasonable doubt, burden of proof, and justifiable homicide, there would have been merit in the contention of the defendant

In the case of Brown v. State, 14 Okla. Cr. 115, 167 P. 762, the court said:

“The instructions of the court must be considered as a whole, and if, when so considered, they are not prejudicial to the defendant, the judgment will not be reversed.”

The Brown Case was reversed because the instructions given covering the issue of self-defense were confusing.

We hold in this case that the instructions as a whole were fair to the defendant. To have incorporated into this particular instruction a repetition of what was contained in other instructions would not have materially clarified the instruction or have operated to change the verdict of the jury.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    BILL ROSE v. STATE.
    No. A-5264.
    Opinion Filed Jan. 23, 1926.
    (242 Pac. 778.)
    C. McCasland, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was charged in the county court of Atoka county of having possession of whisky with the intent to sell. The jury returned its verdict finding him guilty, and assessing punishment at a fine of $500 and confinement in the county jail for 180 days. No briefs have been filed, and we have examined the record to ascertain if there is any fundamental error. The conviction rests^ on the testimony of the city marshal and a deputy sheriff. The substance of the evidence of these officers is that they went to the residence of the defendant, without any search warrant, and entered it, and that the defendant took up a sack containing a half gallon of whisky and ran out the back door. He was followed and arrested. They testified that the reputation of the place was bad. Upon the trial the defendant objected to the evidence of this witness as having been procured by an unlawful search and an unlawful invasion of his residence; that the entry into the home of the defendant in the manner as disclosed by the evidence, without a search warrant, was an invasion of his constitutional rights is too obvious for question. There was no reason apparent why a search warrant could not have been procured and the search have been legal, in which case this conviction would have been affirmed. But where the sole evidence relied upon as in this case was obtained by illegal acts, the conviction cannot stand.

The case is reversed.

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


text:
    GUS KEY v. STATE.
    No. A-5155.
    Opinion Filed Nov. 6, 1925.
    Rehearing Denied Jan. 23, 1926.
    (242 Pac. 582.)

      R. C. Roland, and Matson & Mathers, for plaintiff in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information charges that in Carter county, December 2, 1923, the defendant, Gus Key, did have in his possession certain intoxicating liquor, to wit, three pints of whisky, with the unlawful intent then and there to give, sell, barter, and otherwise furnish the same. Upon the trial the jury returned a verdict finding the defendant guilty as charged in the information and fixing his punishment at a fine of $250 and confinement in the county jail for 90 days. From the judgment he appeals.

The errors assigned and relied on for a reversal are that the evidence is insufficient to support the verdict, and that the court erred in overruling the motion for a new trial.

Hale Dunn, policeman, city of Ardmore, testified that he was standing in front of the Simpson building as the defendant entered the building and pulled his coat and ."bowed two bottles in his pocket; that he followed the defendant to the elevator and searched him and found three pint bottles of whisky, which he labeled, and the same were introduced in evidence; that Officer Cliff Keirsey assisted him.

As a witness in his own behalf the defendant testified: That he was arrested by Officers Dunn and Keirsey, and they took from him the three bottles testified to. That the bottles belonged to Harry Kessler. That he met Kessler in the Gem Waffle House. Kessler said that he had sent a boy to bring him some whisky that he was going to take to a sick lady in Oklahoma City, and asked the defendant to stay there and tell the boy where to1 go. After Kessler left the boy drove up in a Ford car, and they went to the Simpson building to get the grips, and as he walked into the elevator the officers came in and said, “We want to search you;” and he told them, “All right;” that it was not his whisky.

There was, we think, sufficient evidence to warrant submission of the case to the jury, both as to the possession and the unlawful intent.

Upon an examination of the record we find nothing that gives us a right to say that the interests of justice require a new trial.

The judgment of the lower court is accordingly affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    PERCY DOUGHTY v. STATE.
    No. A-5327.
    Opinion Filed Feb. 6, 1926.
    (242 Pac. 1059.)

      !Hioyt & Stephens and Tom L. Ruble, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiff in error, here designated the defendant, was by verdict of a jury found guilty of seduction under a promise of marriage; the jury failing to assess the punishment. The judgment on the verdict fixed the penalty at confinement in the penitentiary for a term of 2 years.

To sustain a conviction for statutory seduction, every constituent element of the offense must be supported by proof. There must be substantial proof tending to establish a promise of marriage to an unmarried female of previous chaste character; there must be proof of illicit relations; there must be proof tending to show that the illicit relations on the part of the woman were induced by the promise of marriage. Harvey v. Territory, 11 Okla. 156, 65 P. 837; Butts v. State, 12 Okla. Cr. 391, 157 P. 704; Harris v. State, 18 Okla. Cr. 470, 196 P. 354.

The prosecutrix in this case says she submitted to three separate acts of intercourse with the defendant. The first was in January, 1923, being the first time she was in company with the defendant alone. One of her reasons for yielding on this first occasion was expressed thus: “Well, he kept begging, for one thing.” She also stated that the defendant promised to marry her “if anything happened.” “He said if any trouble in any way came up.” Her own testimony indicates there was no absolute or unconditional promise of marriage; that the promise of marriage, if any such there was, was inferred from an agreement to go to Wichita, where they would live together while the defendant attended a commercial college there. A conditional promise is not sufficient. Harris v. State, supra; People v. Jensen, 15 Cal. App. 220, 114 P. 586; State v. Meister, 60 Or. 469, 120 P. 407; Simmons v. State, 54 Tex. Cr. R. 619, 114 S. W. 841.

The record shows that, after the incident referred to in January, 1923, the defendant went to Wichita, and that he and the prosecutrix exchanged letters between that time and the time of his return to Dewey county in May, following. These letters' contained no declarations of affection or terms of endearment, although the defendant renewed his invitation to the girl to come to Wichita and live with him.

The girl’s testimony covering this period shows that she kept company with many other young men, with whom she took automobile rides in the daytime and nighttime, to various places in and about Dewey codnty. She said nothing to any of her companions or to any member of her family about her engagement to marry.

It is conceded that, in a prosecution for seduction under a promise of marriage, it is not necessary that the promise should be expressed in any set form, or in any particular language. It is sufficient if the language used implies such a promise, was intended to convey that meaning, and is so understood by the prosecutrix. Butts v. State, 12 Okla. Cr. 391, 157 P. 704. But where the prosecutrix yielded on the occasion of her first meeting with the accused alone; where no express promise of marriage was made as an inducement or otherwise; where the only declaration made by the defendant was an invitation to the prosecutrix to go to Wichita and live with him while he was there in school — this, considered with all the other portions of her testimony, is not sufficient. And, even if this invitation to go to Wichita could be construed as an implied promise of marriage, the prosecutrix’s own testimony, as a whole, indicates that she probably yielded to indulge her own sexual desires, and that the invitation to go to Wichita was not the paramount inducement causing her to yield.

It would serve no good purpose to analyze in detail all the sordid incidents in the record, including evidence produced by the defendant tending to show that the prosecutrix was not a woman of previous chaste character. It is sufficient to say that the record does not sufficiently show a promise of marriage, or that the promises or inducements, made by the defendant, whatever they were, or if any there were, were the paramount or chief moving influence causing her to yield. Harris v. State, supra.

The judgment of the trial court is reversed.

DOYLE and EDWARDS, JJ., concur.


text:
    RAY TURNER v. STATE.
    No. A-5362.
    Opinion Filed Jan. 30, 1926.
    (242 Pac. 1053.)

      Bristow & McFadyen, for plaintiff in error.
    The Attorney General, for the -State.
   DOYLE, J.

This appeal is from a judgment of conviction for the offense of discharging a firearm in a public place as defined by Penal Code (section 2025, C. S. 1921), and sentence of confinement in the county jail for 30 days and a fine of $250, and, in default of the payment of such fine, further confinement of one day for each dollar of such fine and the costs, taxed at $20, rendered upon a plea of guilty entered by appellant.

Counsel for appellant, on the second day after judgment-, filed a motion to set aside the judgment and permit appellant to withdraw his plea of guilty and substitute a plea of not guilty instead, for the following reasons:

“That said defendant did not have the advice of counsel at the time he entered his plea of guilty, and was not informed that he was entitled to counsel; that when he entered his plea of guilty he was informed and believed that he would only receive a light punishment; that he is not guilty of willfully discharging a firearm in the place alleged, and if any such act was committed it was accidental on his part; that said penalty is excessive, the same being his first offense, and he having been heretofore fined in the city court at Apache for the same offense.”

The testimony on the hearing showed that he conducted a cafe at Apache. He testified that he did not willfully fire off his pistol in the barber shop adjoining; that he pleaded guilty in the city court and paid a $10 fine and the costs; that the city marshal advised him if he would plead guilty to the state charge he would get a light punishment.

It appears that on the day the information was filed, the plea was entered, the judgment rendered, and commitment issued.

The action of the court in refusing to set aside the judgment and in refusing to permit appellant to withdraw his plea of guilty is assigned as error, and that said ruling was an abuse of the court’s discretion, and that the court erred in not informing appellant of his right to have counsel and in not asking him if he desired the aid of counsel, and in not appointing a time for pronouncing judgment as required by law.

It is the settled rule in this state that the defendant in a criminal action should be permitted to withdraw his plea of guilty, given unadvisedly, either before or after judgment, where any reasonable ground is offered for going to the jury. Polk v. State, 26 Okla. Cr. 28B, 224 P. 194.

The state attempts to safeguard the liberty of the citizen, and, as one of the steps in that direction, secures to them, if accused of crime, the services of counsel to conduct their defense.

The statute provides:

“If the defendant appear for arraignment, without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desire the aid of counsel. If he desires, and ■ is unable to employ counsel, the court must assign counsel to defend him.” Section 2590, C. S. 1921.

And further provides:

“After a plea or verdict of guilty * * * the court must appoint a time for pronouncing judgment.” Section 2759.

. In view of the fact that the defendant paid a fine and costs in the city court, based on the same transaction, and in view of the fact that the defendant did not have the benefit of counsel, we are inclined to the opinion that the punishment imposed is excessive, and the sentence will be modified to confinement in the county jail for 80 days and to pay a fine of $50; and, as thus modified, the judgment of the lower court will be affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    MATTIE NAIL v. STATE.
    No. A-5186.
    Opinion Filed Dec. 17, 1925.
    Rehearing Denied Jan. 23, 1926.

      (242 Pac. 270.)

      Eaton, Gilder & Rose, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

For convenience and brevity the plaintiff in error will be referred to as defendant.

The defendant argues the following contentions as ground for reversal: First. Error of the court in refusing to give requested instructions and in the giving of erroneous instructions. Second. Error in the admission of evidence on the part of the state. Third. The insufficiency of the evidence. These assignments will be considered in the order presented.

This prosecution arose on account of the death of John Falcone, caused by his being struck by an automobile driven by defendant. The facts, briefly stated, are that on the 25th day of December, 1922, the deceased and • three companions were driving on the paved highway between the city of Okmulgee and the town of Morris. About 2% miles east of Okmulgee they stopped to fix a tire, when the defendant, with four companions, drove an automobile against the deceased, killing him almost instantly. The information charges murder. The verdict is for manslaughter in the second degree, and the punishment fixed at 2 years in the state penitentiary. The state produced several witnesses who testified that they saw the collision and gave in detail an account thereof, which evidence tends to sustain its theory of murder.

Summarized, the evidence for the state is, in substance: That the deceased had stopped his car facing the east, with his left wheels about 18 inches on the pavement, the remainder of the car on the ground outside the pavement, and was at the rear, apparently replacing the tire on the carrier. That the defendant drove from the west going east, at a speed of from 35 to 40 miles per hour, zigzagging from one side of the pavement to the other, and when about 50 yards from the car of deceased headed straight for him, struck the deceased and his car, killing the deceased, &nd knocking his car several feet forward and from the highway into the ditch, and the car driven by defendant was turned at right angle with the road and in the ditch on the opposite side. That defendant did not seem to have control of the car she was driving, and did not perceptibly slacken her speed That there was no obstruction, other vehicles, or curve in the highway to prevent her seeing the deceased or avoid striking him. There was some evidence that a bottle or bottles smelling of whisky were at the car of defendant immediately after the collision, and that upon her surrender to the officers some 8 hours later she was intoxicated. There was also some evidence that after the collision the defendant started to flee. She did return to Okmulgee immediately after the collision, and from there went to Sapulpa, but from that point returned to Okmulgee and surrendered herself to the city officials.

The evidence for the state and for the defendant was sharply conflicting. The defendant produced the several witnesses who were in the car with her, who testified that they saw the collision and gave in detail an account tending to sustain her theory that the death of deceased was due to an unavoidable accident.

The evidence on the part of defendant is, in substance: That she was going east at a speed not to exceed 25 miles per hour just before the collision, was in the rear of a Ford car, and did not see the car of deceased which had stopped. That she passed the preceding Ford car to the left, and then for the first time saw the car of deceased, and at the same time another car coming from the opposite direction passed the car of deceased, not leaving her room to pass, and that she then attempted to go between the cars, and in doing so struck the rear left fender and wheel of the car of deceased. That she had applied her brakes and had almost stopped when the collision occurred. That she was without fault, was not intoxicated nor drinking. That the collision was an unavoidable accident.

At the time charged in the information, this state had not enacted any law specifically regulating the operation of motor vehicles upon the highways. The Act approved March 28, 1923 (chapter 16, Session Laws of 1923), having been subsequently enacted. If the defendant had intentionally driven her car against the deceased, with a premeditated design to injure him, or in so driving had perpetrated an act imminently dangerous to others and evincing a depraved mind regardless of human life, although without a premeditated design to effect the death of any particular individual, she would have been: guilty of murder. Section 1733, Comp. Laws 1921. The jury by its verdict found that neither of such conditions existed. Then, in order to find the defendant guilty, it was necessary that the jury find she caused the death of deceased by an act of culpable negligence under the provisions of section 1745, Comp. Laws 1921, as follows:

“Any killing of one human being by the act, procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder, nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree.”

Now, if the act of the defendant which caused the death of John Falcone, as shown by the evidence, was an act of culpable negligence as provided by the above statute, and the issues were fairly submitted, the jury were warranted in returning the verdict they did.

Culpable negligence is not defined by our statute, but this court in the case of Clark v. State, 27 Okla. Cr. 11, 224 P. 738, defined it as follows:

“ ‘Culpable negligence’ ” is “the omission to do something which a reasonable, prudent, and honest man would do, or the doing of something which such a man would not'do, under the circumstances surrounding the particular case.”

This definition is found in 2 Words and Phrases, First Series, p. 1780; 1 Bouvier’s Law Dictionary (Rawle’s 3d Ed.) 736; People v. Buddensieck, 103 N. Y. 487, 9 N. E. 44, 57 Am. Rep. 766; State v. Emery, 78 Mo. 77, 47 Am. Rep. 92; State v. Coulter (Mo. Sup.) 204 S. W. 5; Berry on Automobiles (3d Ed) § 1571.

The foregoing definition, it seems to us, is redundant in the use of the word “honest.” Negligence does not depend upon the honesty of the individual in the usually accepted sense, but upon his prudence and care or the lack thereof with which his acts are done in the particular case.

The term is also defined in an earlier case in this court (Kent v. State, 8 Okla. Cr. 188, 126 P. 1040) as:

“The want of that usual and ordinary care and caution in the performance of an act usually and ordinarily exercised by- a person under similar circumstances and conditions.”

When do the negligent acts of an individual cease to be mere neglience and become culpable or criminal negligence? What is the test by which criminal responsibility becomes a consequence of a- negligent act? Beven in his excellent work, “Negligence In Law,” vol. 3, p. 7, says:

“The term ‘criminal negligence’ has reference mainly to the authority by whom reparation is sought. An inseparable accident of criminal negligence may be that it is a violation of duty imposed for the preservation of human life. It is criminal because it constitutes a. violation of an obligation to the state, and which can only be remitted by the state. Criminal negligence per se does not differ from negligence simply. The same negligence, as it affects the individual and the state, is, respectively, gross negligence and criminal negligence. While it is the groundwork of reparation to the private individual, however heinous it may be, it is no more than negligence. So soon as it is the subject-matter in respect of which reparation is exacted by the state, it becomes criminal negligence. * * * Criminal negligence then is negligence in such circumstances that it imposes an obligation re-missible by the state, but irremissible by the individual actually damnified by it; and since the state will not lightly intervene, criminal negligence must be some ‘substantial thing’ and not a mere casual inadvertence. Between criminal negligence, however, and actionable negligence, there is no principle of discrimination, but a question of degree only.”

By no means every instance where one person is injured or killed by a vehicle driven by another do the circumstances constitute a crime. There must be negligence rising to the degree of criminal or culpable negligence. The culpability of a defendant is a question of fact for the jury, and the test is: D'o the acts charged as criminal show a degree of carelessness amounting to a culpable disregard of the rights and safety of others, and did said acts cause the death of deceased? If so, it establishes a case of criminal negligence.

It is argued that the court erred in refusing to give defendant’s requested instructions Nos. 1 and 2, in support of her contention that deceased came to his death by unavoidable accident. Requests for instructions Nos. 1 and 2 are as follows:

“No. 1. You are further instructed that, although you may find that the defendant was driving her car at a rapid rate of speed upon said road, if you further find from the evidence that, as soon as she could see said John Falcone or the car upon which he was working, she did everything in the management and handling of said car that would appear to a reasonable person to be the proper thing to be done under the circumstances, then in that event you must find the defendant not guilty.
“No. 2. You are instructed that, if you find from the evidence, or have a reasonable doubt thereof, that the defendant, as soon as she saw said John-Falcone and the car upon which he was working, did everything which could reasonably be done to avoid injuring said John Falcone, then you must find the defendant not guilty.”

These requests embody her theory. The law that a defendant in a criminal case is entitled to an instruction Upon his theory of the case and upon the hypothesis that his' testimony is true applies, however, only when there is evidence to support the theory, and where it presents an issue upon which he may be acquitted, or upon which the offense may be reduced to a lower degree. Holmes v. State, 6 Okla. Cr. 541, 119 P. 430, 120 P. 300.

Neither of the defendant’s requests for instructions Nos. 1 or 2 state the correct rule of law. Under these requests it would be immaterial how much traffic is on a street or highway, and immaterial at what rate of speed an automobile is driven, nor how dangerous the situation created by the act of the driver, if, when he sees a person in danger he manages and handles his car as appears proper to a reasonable person to prevent injuring the person, he would be exonerated from any criminal liability. The doctrine of last clear chance for the protection of a trespasser in measuring civil liability is at least as favorable as the rule here contended for. State v. Campbell, 82 Conn. 671, 74 A. 927, 135 Am. St. Rep. 293, 18 Ann. Cas. 236; State v. McIver, 175 N. C. 761, 94 S. E. 682.

Upon the theory of the defendant, the court gave instruction No. 5, as follows:

“It is admitted by the defendant that she was driving said automobile on the day and date contained in the information, and admits that she did drive said car over and against the body of the said John Falcone, and did then and there and thereby cause his death, but claims as her defense that it was excusable homicide; that is to say, that the said John Falcone met his death of the result of an unavoidable automobile accident, and in this connection you are instructed that, if you find and believe from the evidence that the said John Falcone did come to his death as a result of an unavoidable automobile accident, then the homicide wouid be excusable homicide, and you must find the defendant not guilty, or, if you should have a reasonable doubt as to whether or not the killing of John Falcone was the result of an unavoidable automobile accident, then it will be your duty to resolve that doubt in favor of defendant and acquit her.”

No exception was taken to this instruction, but it is now argued that it puts the burden of proof upon the defendant. The purpose of this instruction was to inform the jury of the defendant’s theory and to advise them that, if they found the theory sustained by the evidence, or had a reasonable doubt thereof, they must acquit the defendant. In addition to that, the jury were told that the burden of proof was upon the state to prove every material allegation of the information beyond a reasonable doubt before the defendant could be convicted, and that the presumption of innocence was with the defendant and abided with her throughout the trial until overcome beyond a reasonable doubt. And again, if upon the whole case they had a reasonable doubt of the defendant’s guilt of the crime charged, it was their duty to resolve that doubt in favor of the defendant and acquit her. Considering all these instructions together, the defendant was not deprived of the presumption of innocence nor the burden to establish her innocence cast upon her.

Complaint is also made of the court’s instruction No. 6. The latter part of this instruction is rather involved, but the instruction as a whole, if it has any meaning, is fully as favorable to the defendant as the law warrants. The gist of this instruction is found in State v. Goetz, 83 Conn. 437, 76 A. 1000, 30 L. R. A. (N. S.) 458. Instruction No. 7 informs the jury clearly what they must find beyond a reasonable doubt in order to find the defendant guilty. Considering the whole charge together, we believe it informs the jury fairly the law of the case, and is without prejudicial error;

It is also argued that the court erred in permitting evidence tending to prove that some 8 or 10 hours after the collision defendant was drunk as being too remote. Intoxication of a defendant at the time of an automobile collision may be shown as tending to prove negligence. Berry on Automobiles (3d Ed.) § 1573.

There was evidence of the manner in which the car was driven, and of bottles smelling of whisky in the car driven by defendant, having a tendency to prove intoxication, and, while the evidence of the condition of defendant at the time she surrendered to the officers was remote, we think it was not erroneous; at least not sufficiently erroneous to amount to substantial prejudice. It was a matter proper to be submitted to the jury, and the remoteness in point of time goes rather to its weight than to its admissibility.

Upon the contention that the evidence is insufficient to sustain the verdict, the defendant advances the argument that the testimony of the witnesses for the state that the defendant at the time she struck deceased was traveling at a dangerous rate of speed is refuted by the physical facts, since, if a six-cylinder Buick, the kind of car driven by defendant, as disclosed by the evidence, going at that speed, had struck a Chevrolet car, the car of the deceased, as shown by the evidence, both would have beén demolished, 'and these physical facts, together with the testimony of the witnesses for the defendant would outweigh the evidence for the state; that it cannot be said that the evidence reasonably sustains the verdict, but does sustain the contention of the defendant that she had attempted to stop her car and had almost succeeded, and demonstrates that the collision was an unavoidable accident.

Taking the evidence here which tends to sustain the verdict of the jury that the defendant in driving her car against the deceased was guilty of culpable negligence, it will be seen that the jury might find that the defendant upon a highway, where there were various persons traveling in both directions, and where a reasonable person must expect frequently to overtake or pass other vehicles, drove at a high rate of speed, without having her car under control, and without watching the highway for other travelers with whom she might have collision, and without any obstruction to her view, drove against the deceased who had stopped at the edge of the highway with his car in plain sight, and caused his death. Or taking her theory that she was following a car immediately preceding her, she in like manner, without seeing that the highway ahead Was clear, attempted to pass a preceding car, and, in order to avoid a car coming from the opposite direction, drove against and caused the death of deceased. In either event she was guilty of negligence. If the highway was clear, as the evidence of the state shows, and no car immediately preceding the defendant, nor any car coming from the opposite direction, her running upon the deceased and causing his death is wholly inexcusable, and certainly her negligence is of such a gross character as to fall clearly within the degree defined as culpable. But, if she attempted to pass a preceding car without looking ahead to ascertain if a car was coming from the opposite direction and that she might safely pass, or without having her car under control and at a reasonable rate of speed, she brought about a situation from which she was unable to extricate herself except by running against and killing deceased, this was culpable negligence which renders the defendant criminally liable.

The highways of the state are common property of all, and by whatever method or conveyance they are used for travel, persons upon the highways have equal rights. In exercising these rights, each must have regard for the rights of others. The law gives the right to use the highways for travel by automobile, but this right is limited to doing so in a legal and prudent manner, and when a person drives upon the highway in the exercise of such right in a negligent manner, so that his negligence affects others likewise lawfully upon the highway to their injury, he becomes liable to the injured party, and, if the degree of negligence with which the act is done is culpable within the meaning of the law, he becomes liable to the state for criminal negligence.

Upon an examination of the whole case, we see no reason to disturb the verdict and judgment.

The case is affirmed.

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


text:
    PRIEST HICKMAN v. STATE.
    No. A-5695.
    Opinion Filed Dec. 5, 1925.
    Rehearing Denied Jan. 23, 1926.
    (242 Pac. 270.)
    See, also, 32 Okla. Cr. 40, 23'9 P. 1118.
    Sigler & Jackson, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

On March 5, 1921, plaintiff in error, Priest Hickman, here designated the defendant, was by the judgment of the district court of Carter county sentenced to the state penitentiary for a term of one year and three months, based upon a verdict of a jury finding him guilty of assault with intent to kill. Notice of an appeal was given, and the defendant was set at liberty upon a supersedeas bond, but the appeal was not perfected. There was a motion for a new trial in the lower court, filed on March 7, 1921, but the record does not affirmatively show what action, if any, was taken upon this motion.

On the 20th day of March, 1925, the defendant moved the district court of Carter county to vacate the judgment theretofore rendered against him by a nunc pro tunc order. Upon a hearing on this motion, at which evidence supporting the motion and controverting the same, was heard, the court made the following order:

■ “Now on this 21st day of March, 1925, this matter came on for hearing upon the application of the defendant for an order nunc pro tunc sustaining his motion for a new trial herein, and also a motion of the said defendant to correct the record and strike from the record the purported sentence in this case. And the court, after hearing the same, overruled both motions, to which action the said defendant duly excepted. Whereupon said defendant requests the court to take action upon his motion for a new trial, which the court refused to do; the defendant then and there excepted. Whereupon said defendant filed in this court a motion for rehearing upon said matter, which motion was overruled, to which action of the court the defendant then and there excepted; and the defendant in open court gave notice of his intention to appeal to the Criminal Court of Appeals on said actions, and the defendant was granted 60 days in which to prepare and serve a case-made, and the state allowed 10 days in which to suggest amendments, and cause to be settled within 3 days’ notice to either party.”

On July 14, 1925, an appeal from this order was filed in this court.

Section 2805, Comp. Stat. 1921, provides that an appeal may be taken by a defendant as a matter of right from any “judgment against him.” Sections of the statutes following prescribe the manner of taking such appeal, and provide, among other things, that an appeal from the judgment of conviction in a felony case must be taken within six months from its rendition. Heath v. State, 122 Okla. Cr. 122, 210 P. 560. A consideration of the order quoted, from which this appeal is attempted to be prosecuted, discloses that it is not a judgment or final order from which an appeal lies. It will serve no good purpose to recite the reasons why this defendant had for a period of nearly five years evaded the penalty assessed by the court. It is sufficient to say that this court will indulge in no further dilatory proceedings.

The appeal is dismissed, and a mandate ordered issued forthwith ordering the execution of the original judgment against the defendant according to the terms thereof.

DOYLE and EDWARDS, JJ., concur.