text:
    TAYLOR v. STATE.
    No. A-11067.
    Nov. 16, 1949.
    (212 P. 2d 164.)
    Cecil E. F. Robertson, Muskogee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant, J. A. Taylor, a negro physician, was charged by information in the district court of Muskogee county, Okla., with the crime of having performed an abortion upon Bobbie Markham, a white girl, in the city of Muskogee, on July 17, 1947. The defendant entered a plea of not guilty to the charge, was tried, and convicted by a jury which left the infliction of punishment up to the court. The trial court sentenced the defendant to one year in the penitentiary.

The prosecution was based upon the provisions of Title 21 O. S. 1941 § 861, which provides:

“Every person who administers to any pregnant woman, or who prescribes for any such woman, or advises or procures any such woman to take any medicine, drug or substance, or uses or employs any instrument, or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the penitentiary not exceeding three years, or in a county jail not exceeding one year.”

The defendant raises numerous assignments of error, but in disposing of the case it is only necessary to consider three assignments touching upon the insufficiency of the evidence: First, that the court erred in not sustaining the defendant’s demurrer to the evidence; second, in not directing a verdict in favor of the defendant; and, third, in not granting the defendant’s motion for a new trial. The statutes of the state of Oklahoma provide, Title 22 O. S. 1941 § 886, as follows:

“A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted.”

It has been said:

“The burden in a criminal case, whether for misdemeanor or felony, is on the prosecution to establish the guilt of accused, beyond a reasonable doubt, that is, to prove every essential element of the crime charged, every fact and circumstance essential to the guilt of the accused, as though the whole issue rested on it.” 22 C.J.S., Criminal Law, § 566, pages 881, 882.

In this connection, see Lowe v. State, 42 Okla. Cr. 313, 275 P. 1066; Crouse v. State, 39 Okla. Cr. 127, 263 P. 681; Stribling v. State, 18 Okla. Cr. 48, 192 P. 590.

In Lowe v. State, supra, this court said [42 Okla. Cr. 313, 275 P. 1067]:

“The burden to prove the guilt of an accused is always on the state, * * *. Section 2692, Comp. St. 1921 [22 O. S. 1941 § 836]; Beal v. State, 12 Okla. Cr. 157, 152 P. 808; Findley v. State, 13 Okla. Cr. 128, 162 P. 680; Stribling v. State, 18 Okla. Cr. 48, 192 P. 590; Tabor v. State, 23 Okla. Cr. 303, 214 P. 564; Hooper et al. v. State, 26 Okla. Cr. 227, 223 P. 209; Brennon v. State, 27 Okla. Cr. 286, 226 P. 1062; Jay et al. v. State, 42 Okla. Cr. 32, 274 P. 487.”

In the foregoing connection this court has said, in Looney v. State, 59 Okla. Cr. 338, 60 P. 2d 214, 215:

“In every criminal prosecution it [devolves upon] the state to prove, first, the corpus delicti; and, second, that the crime charged was committed by the accused.”

In this same connection see Osborn v. State, 86 Okla. Cr. 259, 194 P. 2d 176; Robinson v. State, 71 Okla. Cr. 75, 108 P. 2d 196, 198; Bond v. State, 90 Okla. Cr. 110, 210 P. 2d 784. The defendant’s conviction in this case must be measured by the foregoing rules.

The evidence is sufficient in this case to support the fact of some one having performed an abortion. The pertinent part of the testimony of Dr. Ballantine, a reputable physician of Muskogee, Okla., discloses that he bad occasion to wait on tbe prosecutrix on or about July 17, 1947. His testimony reveals that he was first contacted by telephone and a short time thereafter two white women came to his office. He said that he made an examination of her and he suggested that she be taken to the hospital; that he made an examination of her and determined that in his opinion instruments had been used on her private parts for the purpose of procuring an abortion; that the mouth of the womb known as the cervix was slightly torn and bleeding at the time and that in his opinion instruments had been used. On cross-examination the doctor admitted that the tearing that he observed at the mouth of the womb or the cervix could have been produced by some cause other than a doctor’s instruments, or, in other words, the abortion could have been performed by some one other than a doctor. The foregoing evidence was sufficient to establish the corpus delicti, that is, that an abortion had been performed by some one, but the mere establishing of the corpus delicti within itself was not sufficient in the light of the foregoing authorities. It then became necessary for the state to connect the defendant with the commission of the crime. This element necessary to support the conviction is entirely lacking in the evidence. In this connection the evidence of the prosecutrix shows no one but the prosecutrix and the defendant himself were present when the alleged abortion was supposed to have been performed. The connection of the defendant with the crime is therefore, in this case, dependent upon the evidence offered by the prosecutrix. In this connection she testified on direct examination as follows, to wit:

“Q. Did you go and see any doctor on that day Miss Markham? A. I went down to see what was wrong with me. Q. What doctor did you go to please, mam? A. Doctor Taylor, I think. Q. That is the defendant — is that the doctor you went down to see? A. I am not sure but I think it is. It has been so long— Q. Just tell the court and jury, Miss Markham, why you went to see a colored doctor. A. I was menstruating and I was ashamed to go to a white doctor I had taken so much medicine and Wednesday I carried two cases of pop, heavy pop down there. Q. Were you pregnant at that time or did you know? A. I suppose I was. Q. Did the doctor examine you and tell you whether or not you were pregnant? A. He examined me. Q. Did he do any thing other than that? A. He told me he didn’t. Q. Did he do any thing other than that? A. He said he didn’t. Q. Have you paid him? A. I paid him $5 for the visit. Q. How long were you in his office please, mam? A. I don’t know how long it was — I was there about 30 minutes. Q. About 30 minutes. After that, did you go back to the hotel, after you left the doctor’s office? A. Yes, sir. Q. Were you in any more pain or sicker then? A. Yes, sir. Q. Do you know who called Dr. Ballantine? A. No, sir. Q. Were you later taken to the Baptist Hospital? A. Yes, sir. Q. And did Dr. Ballantine wait on you there at the Baptist Hospital? A. A doctor came in, I guess it was Dr. Ballantine. Q. You was in quite a bit of pain? A. No, sir, I wasn’t in any pain at all. Q. You don’t know who the doctor was? A. No, sir. Q. Do you know whether or not Dr. Ballantine was paid for his services? A. He was paid $50. Q. Do you know who paid him? A. That boy gave my sister $50. (Referring to Johnnie Doyle, her boy friend.) Q. Do you recall where you learned where Dr. Taylor’s office was located? A. Well, there was colored girl told me where it was and I went in the first doctor’s office up there. Q. I will ask you if you didn’t identify Dr. Taylor as being the doctor that you went to be examined by? A. I think that is him but I am not sure. I would not say positively. Q. What is your best judgment at this time Miss Markham as to whether or not that is the man that examined you? A. Well, I think that is the one.”

On cross-examination she testified as follows:

“Q. I believe you said you wanted a doctor to examine you? A. Yes, sir. Q. Did be examine you? A. Yes, sir. Q. Did be give you any treatment? A. No, sir. He masbed on my stomach like any doctor would. Q. And didn’t give you any treatment of any kind? A. No, sir. Q. Did any doctor give you any treatment other than him then? A. No, sir.”

The defendant did not testify. Only the prosecuttrix’ evidence could possibly form a basis, for the conclusion as to whether or not the defendant committed the crime. It is entirely lacking in that strength of character necessary to make out a case. On reading this opinion, one may therefore logically inquire, the foregoing evidence being such as it is, upon what basis was a conviction had in the case at bar. The answer to this question is by studied resort to incompetent evidence such as hearsay, misconduct of the county attorney, and insinuations. The conviction was predicated upon the jury being misled by such as the following: Dr. H. T. Ballantine was permitted to give hearsay testimony. After testifying the two women called him at his office and telling them he could not see them and that he would see them within an hour he said:

“In a short time two white women came to my office. One of them said she was manager of the hotel there and that this young woman had been taken by somebody to an office and an abortion performed that day.”

An objection was taken to the foregoing, which was overruled, and an exception saved. It must be observed that the foregoing evidence offered by Dr. Ballantine as to the performance of the abortion was clearly hearsay, was obtained from some third party out of the hearing of the defendant. In Scism v. State, 28 Okla. Cr. 344, 230 P. 941, 942, this court said:

“Apparently, the testimony relied npon by the state to convict in this case was purely hearsay testimony, admitted over the defendant’s objection. It needs no argument to show that the testimony of the deputy sheriff, as to statements made by the other two witnesses for the state to him, in the absence of the defendant, was inadmissible and prejudicial to the defendant.”

In Mendenhall v. State, 82 Okla. Cr. 220, 168 P. 2d 138, 140, this court said:

“This evidence not being given in the presence of defendant, was clearly hearsay, and if an objection had been made thereto, the court undoubtedly would have sustained the same. But it has often been held that a case will not be reversed by reason of the introduction of evidence which is inadmissible when no exception or objection was taken thereto, unless the admission of the same constitutes fundamental error.”

But to add to the situation when objection was made to .Dr. Ballantine’s hearsay evidence, the county attorney injected the following statement, “She said she was taken to some physician and an abortion performed, and it would be admissible”. This attempt on the part of the county attorney to supply what he lacked in positive evidence was clearly erroneous. At another point he said in his examination of Johnnie Doyle, “Well, do you know when this alleged abortion was alleged to have occurred, don’t you?” which was another attempt to supply by innuendo what he lacked in positive proof.

Further, the state offered the testimony of Aubrey Chambers, captain of the Muskogee Police Department, who testified he was present when the defendant was questioned by the officers concerning the alleged abortion. He testified as follows:

“He was asked if he made an examination of the young lady and he stated that he had. He was asked if he examined her privates and he replied that he did. He was asked if the girl was pregnant and he said he didn’t know. The doctor then was asked how much he received for his services and he stated he didn’t remember. He was asked if it was five dollars and he replied it was more than that. Then he was asked if it wasn’t 15 or wasn’t it 25 dollars and the doctor replied he didn’t know.”

This evidence proves nothing more than an examination. It in no way tends to connect the defendant with the performance of an abortion. In fact, it is corroborative of the prosecutrix’ testimony as hereinbefore set forth. However, when combined with the county attorney’s argument and the imaginative processes of the jury, it became the basis for a fallacious conclusion unsupported by either the law or the evidence. The county attorney’s argument is hereinafter discussed.

The assistant county attorney, Mr. Wheeler, in arguing the case, stated the prosecutrix was asked if the defendant was the man that had performed the abortion, and she said “yes”. TO' this statement the counsel for the defendant interposed an objection, and the following colloquy ensued:

“Mr. Wheeler: Your Honor, this girl was asked whether or not this was the man that performed the abortion and she said ‘yes’— Mr. Kimble: We object to that and move the Court to declare a mistrial. This is some thing that never happened in this trial. The Court: In the trial she didn’t positively identify but she said she thought it was him. Mr. Robertson: But she didn’t testify that he performed an abortion, Your Honor, and I will ask the Court to instruct the jury to disregard that statement. The Court: That she stated, that she testified he did perform an abortion? Mr. Norman: That is what she said down in the County Attorney’s office, and she did make that statement. Mr. Robertson: I ask the Court to instruct the jury to disregard that statement. The Court: Yes, I think I am entitled to do that. You will disregard that, and go ahead with your argument.” (Emphasis supplied.)

The statement of the county attorney to the effect that “that was what she said down in the county attorney’s office, and she did make that statement,” was unwarranted in the face of the record not supporting the county attorney’s statement, and was highly prejudicial. In Childs v. State, 13 Okla. Cr. 461, 165 P. 662, 623, this court said:

“It would seem from the record that the witnesses for the state had testified before a court of inquiry conducted by the county attorney who did not personally appear in the trial of the cause. The statement was, under the circumstances, highly improper and well calculated to bolster up the unsatisfactory testimony of the witnesses for the state. If, as his assistant stated, the county attorney knew that the defendant was guilty, he should have been called as a witness so that the defendant could have the benefit of confrontation and cross-examination. A prosecuting attorney should confine his argument before the jury to a fair discussion of the issues in the case, and improper remarks objected to at the time will be considered and construed in reference to the evidence. If it appears that the improper argument may have determined the verdict, a new trial should be granted. Watson v. State, 7 Okla. Cr. 590, 124 P. 1101; Mulkey v. State, 5 Okla. Cr. 75, 113 P. [532], 533.”

In Jones v. State, 20 Okla. Cr. 233, 202 P. 187, this court said:

“Where it is clearly within the power of the state to prove a material fact for the state, and where the state, purposely or inadvertently, fails to produce any testimony on that issue, although there is ample opportunity to do so, it is error for the prosecuting attorney to argue to the jury that such fact exists.”

The prosecuting attorney in arguing a case to the jury should confine himself to a fair discussion of matters in the record. In Watson v. State, 7 Okla. Cr. 590, 124 P. 1101, 1108, this court said:

“The average juror holds in high regard, and properly so, the regularly elected prosecuting attorney. The people by electing him have reposed great confidence in his ability and integrity, and the power thus given him must not be used to supply the lack of evidence, or to make greater the weight of the evidence in any case.”

Such was the situation as to this argument by the assistant county attorney and the remarks of the county attorney. It was an attempt to supply by insinuation and prejudicial conduct what the state lacked in positive proof.

The Attorney General concedes that the evidence adduced by the state failed to show that an abortion was completely performed upon the prosecutrix by the defendant. He might have conceded that the record fails to show that an abortion either incompletely or completely was performed upon the prosecutrix by the defendant. There is not a scintilla of competent proof tending to connect this defendant with the performance of the herein alleged abortion. In Dobson v. State, 74 Okla. Cr. 341, 126 P. 2d 95, 102, this court said:

“Where the evidence raises a mere suspicion, or, admitting all that it tends to prove, the defendant’s guilt is left doubtful or dependent upon mere supposition, surmise, or conjecture, the court should advise the jury to return a verdict of acquittal.”

Here, the guilt of the defendant is predicated upon mere supposition, surmise, conjecture, hearsay and unwarranted conduct on the part of the prosecutor. The language employed in Watson v. State, supra, is applicable to the ease at bar. Therein it was said, 7 Okla. Cr. at page 602, 124 P. at page 1106:

“ ‘The action of the attorney for the state was highly reprehensible. A prosecuting attorney is a public officer, “acting in a quasi judicial capacity.” It is his duty to use all fair, honorable, reasonable, and lawful means to secure the conviction of the guilty * * *. He should see that they have a fair and impartial trial, and avoid convictions contrary to law. Nothing should tempt him to appeal to prejudices, to pervert the testimony, or make statements to the jury which, whether true or not, have not been proved. The desire for success should never induce him to endeavor to obtain a verdict by arguments based on anything except the evidence in the case and the conclusions legitimately deducible from the law applicable to the same. To convict and punish a person through the influence of prejudice and caprice is as pernicious in its consequences as the escape of a guilty man. The forms of law should never be prostituted to such a purpose. * * *’ ”

The trial court should have sustained the demurrer to the evidence, and failing to do this in the face of this record, it was his duty to direct the jury to return a verdict of acquittal.

This is a class of case encountered occasionally which confirms the people’s right in criminal cases to resort to appellate courts to correct such errors as are evident by the record in this case. Cases such as this constitute a refutation of the contention made by the late Chief Justice Taft advocating the abolition of appeals in criminal cases (15 Yale Journal 1, 12, 1905), and Mr. Justice Brewer (18 Rep. Am. Bar Association, 441, 448). See, also, in this connection “Criminal Appeals in America” by Lester B. Orfield, page 39. For all of the above and foregoing reasons, the judgment and sentence herein imposed is accordingly reversed and remanded for a new trial, with directions that if the state has no competent evidence upon which to predicate a conviction, this case be dismissed.

JONES, P. J., and POWELL, J., concur.


source: Caselaw Access Project

author: POWELL, J.

license: Public Domain

text:
    WILSON v. STATE.
    No. A-10989.
    Nov. 16, 1949.
    (212 P. 2d 172.)

      Harland A. Carter and E. M. Carter, Okmulgee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   POWELL, J.

Landes Wilson was charged in the district court of Okmulgee county with the crime of murder. The case was transferred to the superior court where he was tried, convicted and given a life sentence, and he has appealed.

The information was filed in the district court on February 20, 1947, and defendant arraigned February 25th. He entered a plea of not guilty, and his case was assigned for trial for March 17, 1947. On March 3rd he made application for permission to take depositions outside of the state, and for continuance. The case was stricken from the assignment, and on April 13, 1947, the judge of the district court made an order transferring the case to the superior court, for the reason that a term of criminal court would probably be held in the superior court before another docket in the district court, and transferring said case “would expedite public business and better serve the ends of justice.” Neither the defendant nor his attorney was present at the time this order was entered, but a copy of the order was mailed to the attorney for defendant. On April 19th defendant filed a motion in the district court to vacate the order transferring the case to the superior court. A hearing was held on this motion, and it was denied. The case was assigned for trial in the superior court for June 9th, at which time defendant moved for a continuance, and to have the case transferred back to the district court. The motion was overruled, and the trial proceeded.

Defendant’s first contention for reversal of the case is that the district court erred in refusing to set aside his order transferring said cause to the superior court.

Tit. 20 O.S.A. § 242 gives the superior court of Okmulgee county concurrent jurisdiction in all matters, both civil and criminal, with the district court; and section 253 of such Title provides :

“The District Court or judge thereof, in said county may, in his discretion, at any time transfer any cause pending and undetermined therein to the Superior Court of said county. * * *”

There is nothing in the statute which requires notice to be given to a defendant, or his counsel, prior to making the order.

Attention has been called to Tit. 22 O.S.A. § 583, which provides that in a felony case, the defendant must be personally present at every stage of the trial.

In the early case of Ward v. Territory, 8 Okla. 12, 56 P. 704, the syllabus, after quoting the section of the statute here under consideration, Tit. 22 O.S.A. § 583, reads:

“* * * only mean that the defendant shall be present in court from the beginning of the impaneling of the jury until the reception of the verdict, the recording of the same, and the discharge of the jury; and the word ‘trial’, as used in section 5147 (Tit. 22 O.S.A. § 583), has no reference to a hearing on a motion for a new trial, or a hearing on a motion in arrest of judgment, and it is not necessary, even in a felony trial, for the defendant to be present in court when either of these motions is being heard or a ruling made thereon, because a hearing on such motions constitutes no part of the trial.”

The opinion in that case is a long one, in which Judge Burwell discusses this question fully.

In the case of Philips v. State, 10 Okla. Cr. 353, 136 P. 776, 777, Judge Furman, in referring to this statute, said :

“It only requires the presence of a defendant in a felony case at the trial upon which the question of his guilt or innocence of the crime charged is determined by the jury. It does not require the presence of a defendant at any hearing in which the question of guilt is not directly passed upon.”

See, also, Hogan v. State, 42 Okla. Cr. 188, 275 P. 355; Rigsby v. State, 55 Okla. Cr. 61, 24 P. 2d 1016, and cases cited in these opinions.

It is our opinion that the court did not err in overruling defendant’s motion to set aside its order transferring this case to the superior court.

Defendant’s next contention is that the verdict of the jury is not supported by the evidence, is contrary to both the law and the evidence, and not supported by either.

At the trial of the case, the killing of Geraldine Wilson was admitted by defendant, and no evidence was offered or contention made that the homicide was excusable or justified, but the sole defense was that of insanity.

The evidence indicates that the defendant and his wife, prior to their last fatal meeting, had differences and were separated. The defendant had disposed of their furniture, and at Ms instance a meeting liad been arranged to take place at Simon’s Bar, on Fifth street, Okmulgee, for a division of the money. The defendant gave his wife her share of the proceeds from the sale of their furniture, but the deceased was afraid of her husband, but was reassured by the defendant that he would not harm her. He gave her a long-handled knife and submitted himself for search for other weapons, assuring his wife that he had none. The wife’s sister-in-law, Essie Armstrong, had accompanied her for the meeting with the defendant. The defendant persuaded his wife and Essie to go to Jack’s Bar with him. This was around 8 p. m. There were many other people at the bar. The evidence does not show just how the defendant, his wife and Essie spent their time while there, but they remained at the bar until about 10:45 p. m., when defendant, in the presence of Essie, embraced his wife, and Essie turned, and at that moment defendant shot his wife, using a small calibre automatic weapon, the bullet passing entirely through her body and finally lodging in Essie’s back. The wife ran out one door of the tavern and the defendant ran out another door and went around the building, came upon his wife, and shot her twice more. This, in substance, is the evidence that the jury had for consideration, except the testimony of expert witnesses as to the sanity of the defendant.

Under the evidence of the state, the defendant was sane. Under the evidence of the witnesses for defendant, he was unable to know right from wrong at the time of the alleged commission of the crime. This was a-question of fact for the jury. The issue of insanity at the time of the alleged commission of the crime was properly presented to the jury. No exceptions were taken to any of the instructions upon this, or any other issue. From the evidence the jury formed its opinion that the defendant was sane at the time of the commission of the homicide, and such finding should be binding upon an appellate court. Bingham v. State, 82 Okla. Cr. 5, 165 P. 2d 646; Kennamer v. State, 59 Okla. Cr. 146, 57 P. 2d 646.

The defendant’s final contention is error of the court in permitting the county attorney in his closing remarks to the jury, over the objection of defendant, to make statements prejudicial to the defendant.

The record does not contain the full argument of the attorneys in connection with this assignment of error. The record shows only the following.

“Thereupon the court read to the jury written instructions as to the law governing said cause; thereupon said cause was argued to the jury by counsel; the reporter was not requested to take the arguments, but was recalled to take the following objections:
“(1) Mr. Harland A. Carter: Comes now the defendant, and objects to argument of the county attorney that certain men that he was associated with in the Armed Services ‘were probably now drawing pensions as phychoses and running around loose.’
“County Attorney: It is in rebuttal to statement by counsel for the defendant that ‘It is silly that a man would fake insanity to keep from going overseas.’
“The Court: Objection overruled.
“Mr. Carter: Exception.
“(2) Mr. Carter did not state to what words he objected, therefore they are not here set out:
“Mr. Carter: We object to the argument, for the reason that it is not within the evidence in this case, and not within the law as laid down by the court in his instructions.
“Judge: Overruled.
“Mr. Carter: Exceptions.”

In Ussaery v. State, 22 Okla. Cr. 397, 212 P. 137, this court held:

“When the entire argument on both sides is not before the court, and the county attorney contends that his argument is in reply to argument advanced by defendant’s counsel, and the trial judge overrules the objection to such argument, this court will not pass on the alleged error, unless the argument complained of constitutes a violation of some constitutional or statutory right of the defendant. Under such circumstance the presumption will be indulged on appeal that the trial judge ruled that such argument was permissible as reply argument, as the burden is upon the appellant to affirmatively show error in the ruling of the trial court.”

This case has been quoted and followed in a number of later cases: Wilson v. State, 24 Okla. Cr. 332, 217 P. 885; Sanders v. State, 46 Okla. Cr. 298, 287 P. 842; McDonald v. State, 59 Okla. Cr. 318, 58 P. 2d 345; Chesser v. State, 63 Okla. Cr. 84, 73 P. 2d 191; Hunsaker v. State, 81 Okla. Cr. 321, 164 P. 2d 404; Bingham v. State, supra.

In his motion for new trial, defendant sets out statements made by the county attorney in his argument to the jury, with the statement that they were “taken down by the court reporter”, but such statements do not appear in the trial proceedings.

It would have been better if the entire argument of the prosecutor had been incorporated in the record. This court, then, could have known exactly what was said in the argument and how the statements purportedly made by the prosecutor fitted in with the balance of his argument, and the argument of counsel for defendant. It is difficult for an appellate court to look at one or two isolated statements plucked from an argument and say that such statements by themselves are so prejudicial as to cause a reversal. Enough must appear in the record to enable the court to determine from an examination of the entire argument whether the particular statement complained of is prejudicial and improper. The arguments should not be presented in such a way as to confuse the jury as to what is argument of the attorneys, and what is evidence for their consideration. For this reason, we have held that it is improper for the county attorney to state his personal opinion as to defendant’s guilt.

In view of the record in this case, we are of the opinion that the jury was not unduly prejudiced in their verdict by reason of the closing argument of the county attorney.

In his conclusion, counsel for defendant states:

“We cannot understand how they (the jury) fixed the penalty they did, unless they had grave doubts of the sanity of the defendant at the time he killed his wife.”

We think this is not hard to understand. The penalty fixed by the jury was no doubt a tribute to the zeal and ability of defendant’s counsel, and the fact that defendant had been in the Armed Forces of his Government.

The judgment of the superior court of Okmulgee county is affirmed.

JONES, P. J., and BRETT, J., concur.


text:
    DOOLIN v. STATE.
    No. A-11031.
    Nov. 23, 1949.
    (212 P. 2d 136.)

      Wallace & Collins, Sapulpa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   POWELL, J.

The defendant, Eaymond Doolin, was charged by information filed in the superior court of Creek county with the crime of unlawful sale of intoxicating liquor, was tried before a jury, convicted and sentenced to serve a term of 30 days in the county jail and to pay a fine of $100, and has appealed.

Eor a reversal of this case, three assignments of error are presented: (1) Court’s refusal to sustain defendant’s motion for mistrial after an independent and highly prejudicial exhibit had been offered as evidence and displayed to the jury, together with testimony alluding to its relation with defendant; (2) failure of the court to include in his instructions to the jurors an instruction directing them not to consider the incompetent and highly prejudicial exhibit submitted and openly displayed before the jury by the county attorney and prosecuting witnesses; and (3) error of the court in not sustaining defendant’s motion for mistrial because of the improper and prejudicial remarks outside the record made by the assistant county attorney in the closing argument of said cause, to which defendant objected and the court refused to admonish the jury not to consider the same.

No contention is made as to the sufficiency of the evidence to sustain the verdict of guilty.

The information charged that on or about July 16, 1947, the defendant sold and delivered to O. W. Webb one pint of “Old Grand-Dad” whisky. The proof on the part of the state showed that O. W. Webb was a minister of the gospel, formerly of Bristow, then residing in Tnlsa, but currently conducting a revival meeting at Drumright; that on the 16th day of July, 1947, and at about 10:30 in the evening, after services at Drumright, and accompanied by Rev. Homer Gaines, Rev. Webb entered the Oilton Bar at Oilton, operated by Raymond Doolin, the defendant, and found defendant and three other men sitting in a booth playing cards; that he had conversation with defendant. The witness stated:

“I walked in and asked him if he had any GrandDad whisky, and he said ‘yes’, and I said ‘Have you got a pint?’ and he said ‘yes’ and he got out of the booth and walked back to his bar and stepped in a little anteroom and came out with this pint of whisky here.”

A pint of Old Grand-Dad whisky was in view of the jury and the same was marked “State’s Exhibit A” and the county attorney handed the same to Rev. Webb to be identified, the witness stating that he paid the defendant $5 for the whisky, and that he wrote the date and time of purchase on the label at the time of purchase, but when witness went to read the identification he stated that he had the wrong pint, and that Rev. Gaines, who was another state witness and who was just outside the courtroom, had the pint purchased from defendant, and the county attorney asked him if he wanted to withdraw the bottle in question and offer the right bottle, and he answered:

“Yes, sir, it is an error. This bottle of Old GrandDad whisky was purchased at a different place, and to be sure I wrote on it. Mr. Gaines is standing outside. He has one and I have the other.”

The county attorney further asked the witness: “And you don’t want to identify this defendant with the sale of this whisky in any way, shape or form or fashion? A. That is right.” The witness was permitted to step outside the courtroom and obtain a second bottle of Old Grand-Dad whisky whch he identifed from marks thereon as being the pint purchased from the defendant.

Rev. Homer Gaines testified that he accompanied Rev. Webb to the Oilton Bar and witnessed him purchase a pint of Old Grand-Dad whisky from the defendant, substantially corroborating the testimony of Rev. Webb in all particulars. At the commencement of his testimony counsel for defendant objected to the first pint of Old Grand-Dad whisky being kept in view of the jury and the county attorney agreed to and did then conceal it. Counsel for defendant sought a mistrial, but this was denied. Witness stated that right after the purchase Rev. Webb wrote “Oilton Bar” and the date on the bottle of whisky purchased from the defendant. The state rested, and the defendant moved that the case be dismissd and the motion was overruled, and the court stated:

“The court will deny the motion to dismiss the charge, but wishes to state to the jury in connection with the bottle of whisky that was first exhibited to the jury through error, that the jury should not consider any fact in relation to that first bottle of whisky exhibited through error. The defendant in this case is only charged with the sale of one pint of whisky and the jury should not be prejudiced against the defendant because of the bottle of whisky which was exhibited to you that was not purchased from this defendant — it is admitted by the witnesses that the first bottle of whisky exhibited was not purchased from this defendant.”

The defendant used three witnesses besides himself. He testified that he was born near Oilton and had lived in Oilton since 1936; that he had never been convicted of crime in Oklahoma; that he remembered Rev. Webb coming to his place of business, defendant testifying: “He came in; I got up from a booth and walked over behind the bar and he asked me for a pint of whisky, and I told him I didn’t sell it.

“Q. What did he do? A. He stood there a minute and turned around and walked out. Q. Was there anyone with him? A. Yes, sir. Q. Did you know that man? A. No, sir.”

Defendant further testified that he was playing pitch when Rev. Webb came in; that he ran a beer parlor and had pitch games going on there at the same time, and that he had never seen the whisky introduced in evidence, until it was introduced.

Orb Hulsey testified for the defendant, stating that he was playing pitch with him and a man by the name of Ramsey and one by the name of Scott; that he saw Rev. Webb when he came in defendant’s place, did not know him, but that defendant told him who Rev. Webb was after he left; that someone was with Rev. Webb; that witness did not see the defendant sell Rev. Webb any whisky; that he did not hear the conversation between defendant and Rev. Webb, and that the parties were in plain view of him.

Ed Haney was used by defendant as a character witness, testifying that he was acquainted with defendant’s reputation in the community in which he lived for being a peaceable and law-abiding citizen and that his reputation was good. Witness on cross-examination could not testify as to the defendant’s reputation for operating a place where whisky was sold.

F. E. Pope was used by defendant as a character witness, testifying that he had known defendant 15 or 20 years and that he had a reputation in the community as being a peaceable and law-abiding citizen. On cross-examination, among others, the following questions were asked and answers given:

“Q. You have lived there and you know him and you know his place of business? A. Yes, sir. I was in business there eight or ten years. Q. Have you ever heard they sold liquor there? A. I might have'heard it, but I don’t know who told me. I don’t know a thing about it. Q. You wouldn’t say the reputation of his place is not that it is a place where liquor is sold, would you? A. I wouldn’t qualify to say yes or no. I don’t personally know it. Q. But you have heard that he did sell liquor there, have you not? A. I don’t know that I ever heard that. I possibly did. Q. You might have heard that? A. I don’t know. Q. That is all.”

The defendant rested, and thereafter the court read his instructions to the jury. And it is our opinion that the court fully instructed the jury on every material question of law applicable in this case. Neither the defendant nor the state offered any instructions or excepted to the instructions given.

In his opening statement to the jury and by several motions for mistrial, counsel for defendant emphasized the mistake the state made in producing a bottle of Grand-Dad whisky that it developed on reading of the identification label was not purchased from the defendant, and which was not introduced in evidence. He now argues in effect that because of the first bottle of whisky exhibited remaining for a considerable time on the reporter’s desk in plain view of the jury, the rights of the defendant were materially prejudiced. The case of Nichols v. State, 76 Okla. Cr. 178, 135 P. 2d 352, 354, is cited by defendant as a leading case on the subject, but it is sought to distinguish that case from the present one. In that case the defendant, Pete Nichols, was tried and convicted in the county court of Muskogee county on a charge of unlawful possession of intoxicating liquor. In the trial of the case the county attorney introduced in evidence the affidavit for the search warrant and also the search warrant. Before the instruments were read or presented to the jury, the county attorney was granted leave to withdraw the two exhibits, and the court instructed the jury to disregard the exhibits and not to consider them as evidence in the case. The court said:

“It is revealed by this statement and also by the record that these exhibits had only been offered in evidence, and had not been read to the jury, and the jury was instructed by the court not to in any way consider them. From an examination of the record as a whole, we do not see that there was any error in permitting the withdrawal of the exhibits. The defendant was in no way prejudiced thereby. He had a fair and impartial trial.”

Of course, this court has a number of times held that it is fundamental error to admit in evidence the affidavit for search Avarrant and search warrant. See Savalier v. State, 85 Okla. Cr. 87, 185 P. 2d 476, for reasons given. Defendant points out that in the Nichols case the jury did not get to read the instruments erroneously offered, whereas in the present case they observed the extra pint of whisky, and that even though the court admonished the jury not to consider such pint, that nevertheless the mere sight of this extra pint influenced the jury in its verdict. In the Nichols case the jury saw the affidavit and search warrant, knew what the instruments were, but not the contents. The jurors may have had some curiosity. Here they saw the pint, but the defendant was connected with only the second pint, and was charged with possession and sale of but one pint. The court so admonished and instructed the jury in instructions 1 and 5. And from a reading of the entire record we fail to see where the mistake of handing the witness an identical pint of whisky which proved on inspection by witness of identifying words on label to be the wrong bottle, and same not being offered in evidence, conld have prejudiced defendant’s substantial rights. That is the very purpose of foundation evidence as a basis for offering an exhibit in evidence. The correct pint was immediately offered in evidence and the mistake was obviously an honest mistake.

The defendant next contends that the court, though not requested, should have given the jury a written instruction not to consider the first pint of whisky exhibited as being involved in this case. He contends the verbal instruction was insufficient. If he, so thought, it was his duty to have submitted a requested instruction. In Green v. State, 70 Okla. Cr. 228, 105 P. 2d 795, this court held:

“If upon the trial additional instructions are desired, it is the duty of counsel to reduce them to writing and request that they be given, and if he fails to do so a conviction will not be reversed, unless the court is of the opinion, in the light of the entire record and instructions of the court, that there was a failure to instruct the jury upon some material question of law, and that the defendant has been deprived of a substantial right.
“If upon the trial special instructions are desired by the defendant, he is required by the provisions of our Code of Criminal Procedure to present in writing to the court the instructions desired, and it is not error for the trial court to omit to instruct upon every possible question under the defendant’s theory of the case, where he has not requested such instructions.”

The assistant county attorney in his argument to the jury attempted to apologize for his mistake in producing the wrong bottle of Old Grand-Dad whisky and he emphasized that only one pint was purchased from the defendant. It was stipulated that the remarks complained of were in substance, as follows:

“Gentlemen: I apologize to you for the mistake made by us in producing at the trial the wrong bottle of whisky, the one that was withdrawn. It was a mistake on our part and we hope you will dismiss it from your minds as that bottle of whisky had no connection with this defendant.”

The argument of counsel for defendant does not appear consistent, and at all events we do not consider that such remarks prejudicially affected the rights of the defendant. Further, the cases of Hamilton v. State, 79 Okla. Cr. 124, 152 P. 2d 291, Walkup v. State, 89 Okla. Cr. 39, 205 P. 2d 332, and the other cases cited by defendant as sustaining his contention are not, in our opinion, in point when applied to the facts in the within case.

See Workman v. State, 83 Okla. Cr. 245, 175 P. 2d 381, 382, and the cases cited therein, in which this court said:

“A conviction will not be reversed because of argument of county attorney to jury, unless such argument, in view of the entire record, affected defendant’s substantial rights, or caused bias or prejudice against him in the minds of the jurors.”

For the reasons above stated, the judgment of the superior court of Greek county is affirmed.

JONES, P. J., and BEETT, J., concur.


author: BRETT, J.

text:
    Ex parte BIRCHFIELD.
    No. A-11256.
    Nov. 23, 1949.
    (212 P. 2d 145.)
    W. O. Moffett, Tulsa, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for respondent.
   BRETT, J.

This is an original action wherein the petitioner Moody Mae Reynolds Birchfield seeks to obtain a writ of habeas corpus directed to Merle E. Fuller, superintendent of Girls Town, State Industrial School, Tecumseh, Okla., by whom petitioner alleges she is unlawfully restrained of her liberty.

In her petition she alleges that she was born on March 5, 1933, that on March 4, 1949, the juvenile court of Tulsa county, Okla., entered its order adjudging her to be a juvenile delinquent and committing her to Girls Town State Industrial School as aforesaid. That on the 5th day of March, 1949, she was delivered to the aforesaid institution, said date being the date on which she reached the 16th year of her birthday. She contends that the order of commitment is contrary to law, for the reason that the court had no jurisdiction to commit her to said institution, she being 16 years of age at the time of her delivery to the superintendent of said institution.

Next, she alleges that the order was void in that the court was without jurisdiction to adjudge her to be a juvenile delinquent and commit her to said school for the reason at the time said court assumed jurisdiction over her on February 28, 1949, she was a married woman and had been married since July 3, 1948.

To the petition the state responded in effect by general denial and affirmative allegation that petitioner was being detained as by law provided.

The petitioner’s first contention is without merit, for the reason that the juvenile court acquired jurisdiction over the petitioner upon her being adjudged a juvenile delinquent, which adjudication occurred on March 4, 1949, one day before she reached her 16th birthday. Such action was taken in conformity with Title 10 O. S. A. 1941 § 101, reading in part as follows:

“This Article shall apply to any child under the age of sixteen years not an inmate of a State institution incorporated under the laws of this State.” The juvenile court clearly had jurisdiction to make disposition of said juvenile as by law provided, she not having attained her 16th year. Title 10, § 111, O. S. A. 1941, provides in substance “In tbe case of a delinquent child, * * * the court may commit the child * * * if a girl, to an industrial school for girls * * Title 10, § 112, O. S. A. 1941, provides in part “Every child who shall have been adjudged delinquent” may be “committed to an institution”.

It is clear under the foregoing provisions that it was necessary that jurisdiction attach to the petitioner before reaching her 16th birthday for adjudication of her as a juvenile delinquent, Ex parte Lewis, 85 Okla. Cr. 322, 188 P. 2d 367, but it was not necessary that she be committed to an institution before reaching her 16th year. Under the court’s continuing jurisdiction and the further provisions of Title 10, § 111, O. S. A. 1941, as amended in 1945, as follows: “In no case shall a child * * * be committed to an institution after such child has reached eighteen (18)”, the petitioner’s commitment to an institution might have been made after adjudication of juvenile delinquency at any time before she became 18 years of age. In making the foregoing contention apparently the said amendment was overlooked. The jurisdiction herein was well grounded, and the petitioner’s contention in relation thereto is without merit.

The petitioner’s next contention as to her marriage constituting a bar to her being adjudged a juvenile delinquent is likewise without merit. In Killian v. Burnham, 191 Okla. 248, 130 P. 2d 538, 539, the Oklahoma Supreme Court said:

“Does the fact of the marriage of the child remove her from the protection of the Juvenile Act, and deprive the court of jurisdiction to commit her as a delinquent child? We think not. We find nothing in the statute indicating an intention on the part of the Legislature to make such an exception. The first section (§ 101) provides that the act ‘shall apply to any child under the age of sixteen years not an inmate of a State institution incorporated under the laws of this State.’ * * *
“Section 101 makes an exception in favor of those children who are inmates of a State institution. The Legislature having made no other exceptions, this court is not at liberty to make one. While the question is one of statutory construction, we point out that the majority view in other states is in harmony with our view. In re Hook, 95 Vt. 497, 115 A. 730, 19 A. L. R. 610; State ex rel. Foot v. District Court, 77 Mont. 290, 250 P. 973, 49 A. L. A. 398; 31 Am. Jur. 793; Richardson v. Browning, 57 App. D. C. 186, 18 F. 2d 1008. Petitioners cite Ex parte Lewis, 3 Cal. App. 738, 86 P. 996, which however, is . in conflict with a later opinion of the same court in Ex parte Willis, 30 Cal. App. 188, 157 P. 819.
“We conclude that Francis Wood was, on July 18, 1940, a ‘child’ as that term is used in the Juvenile Act, despite the fact that she was then married. Ex parte Rothrock, 19 Okla. Cr. 234, 199 P. 581.”

With the foregoing interpretation of the statute we are in accord, and this contention is without merit.

Finally, the petitioner urges in her brief, her commitment is void for indefiniteness and uncertainty, as to period of time, since the commitment is for no definite period of time, but “until the further order of the court”. This contention is controlled by Title 10, § 218, O. S. A. 1941, the partinent part of which reads as follows:

“Such commitment shall continue in force and effect until the girl so committed shall have arrived at the age of; eighteen (18) years, unless sooner discharged as provided herein”, Ex parte Sweeden, 84 Okla. Cr. 127, 179 P. 2d 695; Title 10, § 112, as to boys until they “shall have reached the age of twenty-one years”, Ex parte Lewis, supra, unless sooner discharged by order of the court, Ex parte Wilkins, 78 Okla. Cr. 135, 145 P. 2d 438. Under the further provisions of Title 10, § 112, O. S. A. 1941, not hereinbefore quoted in relation to wardship, it is provided every juvenile delinquent “committed to an institution, shall continue to be a ward of the court until such child shall have been discharged as such ward by order of the court, * * * and such court may during the period of wardship cause such child to be returned to the court for further or other proceedings, including parole, or release from an institution: * * •

It is apparent from the foregoing sections of the statute that a juvenile delinquent is not sentenced to serve a term of imprisonment within the meaning of the Juvenile Act. In fact, it has been held that such detention is not criminal nor penal, Ex parte Parnell, 19 Okla. Cr. 273, 200 P. 456; Ex parte Baeza, 85 Okla. Cr. 76, 185 P. 2d 242, and its design and restraint is not punishment, Killian v. Burnham, supra, but for correction and reformation, Wilson v. State, 65 Okla. Cr. 10, 82 P. 2d 308. It is apparent that an order of adjudication and commitment must therefore be distinguished from a judgment and sentence in a criminal case. An order of commitment in a juvenile case need not be for any definite period of time since when a boy or girl is in an institution and attains the ages of 21 and 18, respectively, by operation of law the juvenile court’s jurisdiction would terminate. If reformation was effected before the age was attained, then the juvenile would be entitled to be released by further order of the court as in Title 10, § 112, O. S. A. 1941, provided. To commit a juvenile for a definite period of time would require the presumption that reformation could be attained in a definite period of time. Such a presumption certainly would be unwarranted, for it would not take into account the individual aptitude of some juveniles for reformation, and the inaptitude of others for reformation. Detention for a definite period would in many instances defeat the object of the act, that is, prevent discharge upon reformation. It might also defeat the purpose of the act in effecting discharge before reformation. Moreover, the cases hold that under the foregoing provisions of the statute, the juvenile court has continuing jurisdiction over the ward. Ex parte Lewis, supra. This provision within itself is designed to effect the objective of the act, discharge upon reformation. If not, why continuing jurisdiction? It clearly appears to us that a commitment for a definite period of time in a juvenile case is not a necessary requirement of the act, and would in many instances defeat its purpose. While it might be better practice to commit a juvenile if a boy until he reaches 21 years of age or if a juvenile girl until she attains 18 years of age, certainly it is not error so not to do since the law places its own limitation upon detention, while providing for sooner discharge, Title 10, § 112, O. S. A. 1941, under order of the juvenile court. Therefore, based upon the plain provisions of the statute as to commitment and parole, the rule of liberal construction, Ex parte Lewis, supra, the failure to fix detention for a definite time in the order and the clause in the order of commitment “until the further order of this court,” does not make said order void for indefiniteness or uncertainty, but is in keeping with the contingencies provided for in Title 10, § 112, O. S. A. 1941, and the spirit of the juvenile act. For all of the above and foregoing reasons, the writ of habeas corpus is accordingly denied.

JONES, P. J., and POWELL, J., concur.


author: JONES, P. J.

text:
    LEWIS v. STATE.
    No. A-11042.
    Nov. 23, 1949.
    (212 P. 2d 148.)
    Thad L. Klutts, Oklahoma City, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Charles Lewis, was charged in the court of common pleas of Oklahoma county with the crime of contributing to the delinquency of a minor, was tried, convicted, and sentenced to serve six months in the county jail and pay a fine of $200.

Two assignments of error are presented: First, the court erred in refusing to admit competent evidence which affected the material rights of defendant; second, the verdict was excessive and contrary to evidence.

The first assignment is directed to the testimony of Fred Wright, a witness who was called to testify on behalf of defendant. This witness was asked, “Fred, have they ever lied to you?” To which an objection was sustained. He was then asked, “Would you believe either one of them on oath?” To which objection was made but overruled, and the witness answered, “Yes, I would.” The interrogation of the witness was directed, evidently, to the character of the prosecuting witness and her mother who testified against the defendant. Most of the testimony of this witness was incompetent. However, the court after insistence by counsel for defendant did allow the witness to answer many questions which were asked by counsel for defendant. The witness was favorable to the state and his answers did not aid the defense. The court would have been justified in sustaining the county attorney’s objection to all the testimony sought to be elicited from the witness in the form in which the questions were asked. However, since he ultimately allowed the witness to answer all the questions, the defendant has no right to complain.

The proof showed that the defendant had picked up the minor child, a negro girl, 14 years of age, on her way to school and had driven around with her for an hour or so; that on subsequent occasions he again picked up the minor and had sexual intercourse with her. At one. time, he took her to a rooming house and there had sexual relations with her in a room which the defendant rented for that purpose.

The acts by the defendant clearly bring him under the provisions of the statute making it a crime to contribute to the delinquency of a minor child. 21 O. S. 1941 § 856. Wallin v. State, 84 Okla. Cr. 194, 182 P. 2d 788; McGowan v. State, 83 Okla. Cr. 310, 173 P. 2d 227.

The defendant is fortunate that he was charged with a misdemeanor instead of the more serious felony of rape.

The judgment of the court of common pleas of Oklahoma county is affirmed.

BRETT and POWELL, JJ., concur.


text:
    JONES v. STATE.
    No. A-11045.
    Nov. 30, 1949.
    (212 P. 2d 153.)

      Robert O. Swimmer, Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Earnest William Jones, was charged in the court of common pleas of Oklahoma county, with the crime of driving an automobile on a public highway while under the influence of intoxicating liquor, was tried, convicted, and sentenced to serve 30 days in the county jail, and pay a fine of $50, and has appealed.

In the disposition of this appeal, it is only necessary to discuss the first assignment of error presented by the defendant; that is, there is no proof of the corpus delicti, and the conviction rests solely on a contradicted extrajudicial confession.

There were only three witnesses used at the trial. Two highway patrolmen testified for the state, and the defendant testified in his own behalf.

The highway patrolmen testified that they were called to investigate a highway accident in the 2200-block on Northwest First street, just outside the city limits of Oklahoma City, on September 28, 1947. When they arrived at the place where the alleged accident occurred, they found several people there. The defendant was there, his clothes were slouchy, he was unsteady on his feet, and in their opinion was “pretty well under the influence of liquor”. One of the cars in the collision belonged to the defendant. A taxicab had run into the rear of defendant’s car which was parked on the highway. No one was injured, and the damage was very slight to either car. When first questioned, the defendant said that he was driving his automobile, but later stated that another man was driving the car.

Each of the patrolmen testified that their information that defendant was driving the car which was parked on the highway that was struck by the taxicab, was based solely upon the defendant’s statement that he was the driver.

Defendant in his testimony denied that he was either drunk or driving, but said he and four other men whom he had met at a beer tavern had bought some beer and had driven out there and stopped to drink it; that a part Indian man, who was called Chief, drove his car for him; that he did not tell the patrolmen he was driving the car, but stated to them that he owned the car.

The only positive proof presented by the state was that at the time the officers arrived, which, according to their testimony, was at least 20 or 25 minutes after the collision, the defendant was under the influence of intoxicating liquor. Even under the admissions made by the defendant as testified to by the officers, beer had been purchased and the car had been driven to where it was parked, and beer had been drunk after it had been parked. There was no evidence offered on the part of the state to show defendant’s condition of any of the various night spots which the officers said he had visited. If he had appeared in an intoxicated condition in any of those places, this proof should have been introduced. However, the fact of his intoxication shortly after the accident is a circumstance which, if there had been other proof that he was the driver, might have been sufficient to show that he was intoxicated at the time the car was driven where it had been parked.

However, as to this lack of proof, the case in many respects is similar to the case of Phenis v. State, 76 Okla. Cr. 156, 135 P. 2d 62.

The patrolmen said that defendant admitted he was doing the driving. However, it is the established rule that an extrajudicial confession alone does not warrant a conviction, unless it is corroborated by independent evidence of the corpus delicti. Brown v. State, 81 Okla. Cr. 303, 164 P. 2d 249, 166 P. 2d 1021; Bond v. State, 90 Okla. Cr. 110, 210 P. 2d 784.

The case of Brown v. State, supra, is very similar to the case at bar in that the state’s only witness was the highway patrolmen who investigated an accident on the highway fifteen minutes after it happened. He testified that the defendant was intoxicated when he arrived and admitted he was driving. The case was reversed because there was no evidence independent of the confession of the defendant showing that the defendant had driven the automobile on the highway as alleged in the information.

In Gorum v. State, 60 Okla. Cr. 248, 63 P. 2d 765, 766, we said:

“Under tbis provision the responsibilty of determining whether or not there has been adduced before the jury a sufficient amount of legal and competent evidence to render it safe to allow the verdict to stand is imposed on the trial court in the first instance and on appeal upon this court.
“That a crime has actually been committed must necessarily be the foundation of every criminal prosecution, and this must be proved by other testimony than a confession; the confession being admitted merely for the purpose of connecting the accused with the offense charged. * * *”

In Mays v. State, 19 Okla. Cr. 102, 197 P. 1064, 1068, we said:

“This court adheres to the rule that a conviction cannot be had on the extrajudicial confessions of the defendant without independent evidence of the corpus delicti, and, before such confessions should be admitted, there should be evidence prima facie sufficient to show that the offense to which the confession relates has been committed. * * * In passing upon the evidence submitted to them the jury must first determine beyond a reasonable doubt that the crime has been committed; then they are at liberty to give the alleged confession such weight as it is entitled to, taking into consideration the circumstances surrounding it and the extent to which it has been corroborated.”

In Robinson v. State, 71 Okla. Cr. 75, 108 P. 2d 196, 198, in the opinion we said:

“In every criminal prosecution, it devolves upon the state to prove, first, the corpus delicti; second, that the crime charged was committed by the accused. This court will not ordinarily disturb the decision of a trial judge in overruling a demurrer to the evidence, or in denying a motion for a new trial, based upon the insufficiency of the evidence to support the finding of the trial court where a jury has been waived; and it will not do so where the record discloses evidence showing the commission of the offense charged, and from which guilt of the defendant can be fairly inferred; but it will interfere where it clearly appears that the findings of fact and the decision of the trial court have no substantial support, or are clearly without support in the evidence.
“That a crime has actually been committed must necessarily be the foundation of every criminal prosecution, and this must be proved by other testimony than a confession ; the confession being admitted merely for the purpose of connecting the accused with the offense charged. * * *
“Extrajudicial confessions of guilt, without proof of the corpus delicti, are insufficient to justify a conviction.”

Outside of the defendant’s confession, which he denied giving, there is an entire absence of evidence that the defendant drove the said car as alleged in the information. Neither the taxicab driver, nor any other person, was called as a witness to substantiate the theory of the state that defendant was alone in the car when it was struck by the taxicab, and that he alone drove the car from the beer tavern to where it was parked.

This court will not sustain a conviction where essential elements of the offense must be supplied by surmise and conjecture.

The judgment of the court of common pleas of Oklahoma county is reversed.

BRETT and POWELL, JJ., concur.


text:
    EDWARDS v. STATE.
    No. A-11047.
    Nov. 30, 1949.
    (212 P. 2d 150.)

      John L. Ward, Jr., Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant Martin Edwards was charged by information in the court of common pleas of Tulsa county, Okla., tried by a jury and convicted of the offense of unlawful possession of intoxicating liquor. He was sentenced by the court to five months in the county jail and to pay a fine of $350 and costs.

Briefly, the evidence upon which the conviction was had was as follows, to wit, that a valid search warrant offered in evidence had been obtained for the search of the defendant’s automobile. The defendant was observed driving east from the gates of the Mid-Continent Refinery on 17th street. When he saw the officers he attempted to outrun them, and they gave chase. The chase continued through heavy traffic. He was overtaken after a shot was fired at his tires and a blow-out precipitated. A search of his car was made and disclosed four cases of whisky.

The defendant first contends that the court erred in admitting in evidence over his objection, in the state’s case in chief, the search warrant issued for the search of the defendant’s automobile. This court has repeatedly held that it is error for the court to permit the state to introduce the search warrant as primary evidence where the recitals of such warrant are with reference to the essence of the offense charged. Wallace v. State, 89 Okla. Cr. 365, 208 P. 2d 190; Weaver v. State, 78 Okla. Cr. 277, 147 P. 2d 800; Lucas v. State, 56 Okla. Cr. 413, 41 P. 2d 131; Savalier v. State, 85 Okla. Cr. 87, 185 P. 2d 476, 477 (both of said last two cited cases involve only the introduction of the warrant in evidence). In the latter ease the court said:

“The defendant did not take the witness stand; his character had not been placed in issue. The admission of the warrant placed the character of the defendant in issue which was highly prejudicial.
“So far as we are advised, this court has in every instance where such question has been raised, reversed the conviction of the accused and held the admission of a search warrant as independent evidence of defendant’s guilt was prejudicial error. Lucas v. State, 56 Okla. Cr. 413, 41 P. 2d 131; Bruner v. State, 44 Okla. Cr. 425, 281 P. 319; Weeks v. State, 41 Okla. Cr. 95, 270 P. 858; Williams v. State, 34 Okla. Cr. 359, 246 P. 895; Johnson v. State, 52 Okla. Cr. 76, 2 P. 2d 972.”

In the case at bar the defendant did not take the witness stand and make an issue of his character and reputation. The admission of the search warrant in the instant case was therefore highly prejudicial and constitutes reversible error.

Next, the defendant contends that the court erred in permitting over his objection and exception the assistant county attorney to make improper and highly prejudicial remarks and statements to the jury in his opening statement, and to ask highly improper questions during the tidal of the case in relation to the defendant’s business. In his opening statement the county attorney was permitted to say: “The evidence will further be that Martin Edwards is a liquor dealer.” “The evidence will further be, Gentlemen of the Jury, that Martin Edwards is a well known liquor dealer, and so known by the deputies.” “That he was a liquor dealer, he was known as such from experience, they will relate that to you from the witness stand.” The defendant contends that these statements were incompetent, highly prejudicial and inflammatory, and that the court should have sustained his objection thereto. In the trial of the case this line of attack was followed up when the assistant county attorney asked Deputy Sheriff Raines “Do you know what his business is?” to which the officer replied “Yes, sir.” The court sustained defendant’s objection to this question and answer, but there is merit in defendant’s contention that by asking it counsel brought to the attention of the jury his remarks made in his opening statement. He further contends that the court added strength to the jury’s impression by stating “It may be prejudicial. I am going to sustain it and let the jury pass upon what his business is.” The defendant contends that his business was not an issue in the case. With this contention we must agree. As heretofore observed the defendant did not put his reputation in issue and the state could not prove his reputation in chief against him. In Wilkerson v. State, 9 Okla. Cr. 662, 132 P. 1120, this court said:

“Where a defendant is on trial charged with having possession of intoxicating liquors with intent to sell the same, it is not competent for the state to prove, as evidence in chief against him, that he has the general reputation of being a bootlegger.”

A recent opinion by the late Judge Barefoot, on the same identical point involving this same defendant, following the rule announced in Wilkerson v. State, supra, is Edwards v. State, 85 Okla. Cr. 125, 186 P. 2d 333. The state could not attack the character or reputation of the defendant unless he offers evidence in support of his good reputation. Pressley v. State, 71 Okla. Cr. 436, 112 P. 2d 809; Kirk v. State, 11 Okla. Cr. 203, 145 P. 307, and numerous other cases to the same effect. The defendant’s contention in this regard is well grounded since all of the foregoing was designed to attack the reputation and character of the defendant, which the defendant bad not made an issue; the same therefore was highly prejudicial and constituted reversible error.

The defendant next contends that the court committed reversible error in giving Instruction No. 6, which reads as follows: “Gentlemen of the Jury: You are instructed that under the prohibitory laws of the State of Oklahoma, the possession of one quart or more of intoxicating liquor is prima facie evidence of the intent to violate the law. However, you are further instructed that this is subject to be rebutted by proper evidence.”

He cites in this connection the cases of Hughes v. State, 85 Okla. Cr. 25, 184 P. 2d 625; Savalier v. State, 85 Okla. Cr. 87, 185 P. 2d 476; Stump v. State, 66 Okla. Cr. 391, 92 P. 2d 616; Klaber v. State 35 Okla. Cr. 238, 250 P. 142. In all of the cases cited on this point this court held the giving of such an instruction to be reversible error, but in all of the cases an objection was interposed and an exception saved to the giving of the said instruction. We find that no objection and exception was saved to the giving of the instruction in the case at bar. In Miller v. State, 89 Okla. Cr. 200, 206 P. 2d 245, this court said:

“We have carefully examined the record in this case, and do not find that any exception was taken by defendant to the giving of any of the instructions, and no requested instruction was asked calling the attention of the court to this proposition. We have often held that a case will not be reversed by reason of an erroneous instruction where no exception was taken to the giving of the same, unless it was such as deprived the defendant of a substantial right or was in violation of a constitutional or statutory right. Rider v. State, 79 Okla. Cr. 43, 151 P. 2d 67; Gaddy v. State, 81 Okla. Cr. 236, 162 P. 2d 787; Dooley v. State, 82 Okla. Cr. 243, 168 P. 2d 651; Chapman v. State, 84 Okla. Cr. 41, 178 P. 2d 638.”

Such is the situation in the case at bar. No objection and exception being saved to the giving of the instruction and the question not being raised in the motion for new trial, and being raised for the first time on appeal comes too late.

The defendant assigns as further grounds for reversal the admission in evidence over the defendant’s objection and exception evidence tending to show the defendant in attempting to escape arrest drove his automobile at an excessive rate of speed through heavy traffic narrowly avoiding collision with a Chevrolet sedan. It was not error to admit this evidence. The same was clearly admissible as constituting a part of the res gestae, and also was permissible as proof tending to establish a circumstance of guilt. Rushing v. State, 86 Okla. Cr. 241, 190 P. 2d 828; Broyles v. State, 83 Okla. Cr. 83, 173 P. 2d 235; Graham v. State, 80 Okla. Cr. 159, 157 P. 2d 758.

The defendant complains the verdict of the jury was the result of passion and prejudice engendered by all of the foregoing. This contention we believe to be wholly without merit.

For the reasons hereinbefore set forth this case is reversed, with directions to again try the defendant.

JONES, P. J., and POWELL, J., concur.


author: POWELL, J. PER CURIAM.

text:
    COATS v. STATE.
    No. A-11010.
    Nov. 30, 1949.
    On Rehearing Jan. 25, 1950.
    (212 P. 2d 141; 214 P. 2d 455.)

      A. L. Commons, Miami, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   POWELL, J.

The defendant, Baymond Gail Coats, was charged in the district court of Ottawa county with the crime of manslaughter in the first degree, in that:

“While engaged in the commission of a misdemeanor, to wit: the crime of reckless driving as defined by Tit. 24 [47], par. 92 [O. S. A.] and the crime of operating a motor vehicle while under the influence of intoxicating liquor as defined by Tit. 47, par. 93 [O. S. A.] * * * did operate said motor vehicle in such a manner as to cause said vehicle to overturn, from which overturning of said vehicle the said Elmer Jay Mericle did receive certain mortal wounds, from which said mortal wounds the said Elmer Jay Mericle did, on the 15th day of June, 1947, die * *

The defendant was convicted of manslaughter in the second degree, and given six months in jail and assessed a fine of $500 and has appealed.

Counsel for defendant presents two assignments of error:

I. Error of law occurring at the trial.

II. There was not sufficient evidence to warrant the verdict of the jury.

Under the first proposition counsel points out that the defendant herein was not indicted by a grand jury, but that after a preliminary complaint was filed with, and hearing had before the county judge, acting as an examining magistrate, that an information was filed in the district court of Ottawa county. It is contended such proceedings were insufficient and contrary to the Fifth Amendment of the Constitution of the United States, and violated the Fourteenth Amendment to the Constitution of the United States. It is argued that the question has not been settled by this court.

We find that the issues raised under the first assignment have been previously considered and settled by this court in an exhaustive opinion by Doyle, Judge (1909), in the case of In re McNaught, 1 Okla. Cr. 528, 99 P. 241. Also, the Supreme Court of Oklahoma considered the question in an opinion by Williams, Justice, in Ex parte McNaught, 1 Okla. Cr. 260, 100 P. 27. It would serve no useful purpose to quote the various constitutional provisions, Federal and State, involved, and to detail the reasons for holding that it is not necessary in this jurisdiction that a person be indicted by a grand jury as a basis for prosecution, in view of the well-reasoned cases cited, and which may be studied. We approve the rules of law announced, as well as the reasoning, in the McNaught cases, supra.

In the first McNaught case above referred to, this court held:

“The words ‘due process of law’ in the fifth and fourteenth amendments to the Constitution of the United States, and in section 7 of the Bill of Rights of the Constitution of Oklahoma, [Const. Art. II, Sec. 7] do not necessarily require an indictment by a grand jury in a prosecution by the state for the crime of murder committed after statehood.
* # *
“The Constitution of Oklahoma (Const. Art. 2, § 17) authorizes prosecutions for felonies by information after examination and commitment by a magistrate without indictment by a grand jury. * * *
“The provision of the Constitution that provides for and authorizes the prosecution of felonies by information after the accused has had a preliminary examination before an examining magistrate, or having waived such preliminary examination (being section 17 of the Bill of Bights), is self-executing from the time of the organization of this state.”

See, also, Buxton v. State, 37 Okla. Cr. 402, 258 P. 814.

The Fifth Amendment to the Constitution of the United States, is a limitation upon the Federal Government and has no reference to state actions. Ex parte Whistler, D. C. Wis., 65 F. Supp. 40.

The Supreme Court of the United States has many times considered the principal question raised by defendant.

In Maxwell v. Dow, 176 U. S. 581, 20 S. Ct. 448, 449, 44 L. Ed. 597, the court held :

“A proceeding by information, instead of by an indictment by a grand jury, is not insufficient to constitute due process of law.
“The privileges and immunities of a citizen of the United States did not include the right of trial by jury in a state court for a state offense, or the right to be exempt from any trial in such case for an infamous crime, unless upon presentment by a grand jury.
“The adoption of the Fourteenth Amendment to the Federal Constitution has not had the effect of making all the provisions contained in the first ten amendments operative in state courts, on the ground that the fundamental rights protected by those amendments are, by virtue of the Fourteenth Amendment, to be regarded as privileges or immunities of citizens of the United States.”

See, also, Bolln v. State of Nebraska, 51 Neb. 581, 71 N. W. 444; Id., 176 U. S. 83, 20 S. Ct. 287, 44 L. Ed. 382; Hurtado v. California, 110 U. S. 516, 4 S. Ct. 111, 292, 28 L. Ed. 232.

We therefore find no merit in defendant’s proposition I.

It is necessary to summarize the evidence to properly consider the second proposition argued by defendant.

The evidence shows that the defendant was a miner, and working in the Blue Goose Mine No. 1 Eagle Pieher, with Elmer Jay Mericle, Barney Greaves, Harold Grayson, A. J. Jones and Tex Anderson; that they “came out of the ground” at 4 o’clock on Sunday afternoon, June 15, 1947, took showers and changed clothes, and went to Wilson’s Drive-In, and each drank two bottles of beer. They then went to Mendenhall’s Drive-In, where they met A. J. Jones (who was driving his own car) and Ralph Grayson. Jones had part of a fifth of whisky which he took to defendant’s car, and they all sat in the car and drank the whisky with cokes and 7-Up. They wanted more whisky, and went to Floyd’s Tavern, and got another fifth. Most of the witnesses testified that they sat at the bar, and were served the drinks by the bartender.

Two sisters were in a car with Orville Hemann. They started out to look for A. J. Jones, and found him with the other boys at Floyd’s Tavern. The girls both testified that defendant came out of the tavern with a bottle of whisky in his hand, and all three of them testified that he was drinking, and that the boys said they were celebrating the defendant’s anniversary. Hemann saw defendant take a drink, and talked with him about trading cars.

The boys who were riding with the defendant at the time of the accident were reluctant to testify against him. They all said he was not drunk, and most of them that they did not see him take a drink, although they admitted they were drinking. The county attorney claimed surprise at the testimony of two of these witnesses, and statements made by several of them just after the accident were introduced in evidence. The defendant testified that he had not taken a drink, was sober, and his testimony was entirely different from the statement made by him just after the wreck.

' The defendant and the boys with him stayed at Floyd’s Tavern about an hour, then started to Quapaw, in order that Tex Anderson might get some money from his sister there. They were driving east on IT. S. Highway 66. There is a big curve to the north on 66, but the road goes on straight east and is known as “The Devil’s Promenade.” This road is gravelled. There were six boys in defendant’s car when they left the tavern, three in each seat. Several of them testified that defendant was driving about 50 or 60 miles an hour. He failed to make the curve on Highway 66, hit the gravel, cut back on the slab, and turned over about twice. Mericle was in the front seat, opposite the defendant, who was driving, and was thrown out of the car and killed. No one else was seriously hurt.

While there was a conflict in the evidence as to defendant’s drinking, the undisputed evidence shows that he was driving his car at such a rate of speed that he was unable to control it on the curve on U. S. Highway 66, and that the car turned over at least twice, killing one of the occupants, as recited.

A. L. Commons, Miami, for Raymond Gail Coats.

Mac Q. Williamson, Atty. Gen., and James Reed, Co. Atty., Miami, for the State.

The defendant was found guilty of the lesser degree of the crime charged, so that it is unnecessary to determine whether or not the evidence was sufficient to support the greater degree of the crime charged. Tit. 22 O. S. A. 837. We find that there is sufficient evidence in the record to support the verdict of the jury.

This court has held in Graham v. State, 80 Okla. Cr. 159, 157 P. 2d 758, 759:

“Where the evidence is conflicting the, weight of the evidence and the credibility of the witnesses is for the jury, and Criminal Court of Appeals will not substitute its judgment for that of the jury where there is evidence reasonably tending to support the conclusion arrived at by the jury.”

The rule has also been approved in Roberts v. State, 82 Okla. Cr. 75, 166 P. 2d 111; Parks v. State, 83 Okla. Cr. 70, 173 P. 2d 234; and Sadler v. State, 84 Okla. Cr. 97, 179 P. 2d 479.

By reason of the above, the judgment and sentence of the district court of Ottawa county is accordingly affirmed.

JONES, P. J., and BRETT, J., concur.

On Rehearing.

PER CURIAM.

After again considering the record and the argument of counsel on rehearing, we have come to the conclusion that justice will be served by modifying the judgment and sentence pronounced against the accused, from six months in the county jail and a fine of $500, to 90 days in the county jail and a fine of

The judgment and sentence of the district court of Ottawa county is therefore modified to 90 days in the county jail and a fine of $250, and the judgment and sentence as thus modified is affirmed.

Mandate is ordered to issue forthwith.


text:
    CHAPMAN v. STATE.
    No. A-11286.
    Dec. 7, 1949.
    (212 P. 2d 485.)

      Harry Seaton, Public Defender, Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant, Vincent K. Chapman, was charged in the district court of Tulsa county, Okla., by information with the crime of larceny by fraud, 21 O. S. 1941 § 1701. It is alleged that he stole a 1947 automobile. The evidence discloses the crime to have been committed on May 6, 1948, in the city of Tulsa, Okla. The information alleged that the automobile was the property of Henry Hudson, Inc., and that it was stolen with the intent on the part of said defendant to permanently deprive the owner thereof and to convert the same to his own use and benefit. A jury was waived and the case was tried to the court, a conviction had and the defendant sentenced to 18 months in the penitentiary.

The evidence offered by the state discloses that the defendant was employed by the Franks Manufacturing Company. The business in which he was engaged required the use of an automobile and during approximately a year and a half, from time to time he rented cars from the Henry Hudson, Inc. In this connection a Mr. Glendon Clifford Smith testified on rebuttal he had been with Henry Hudson, Inc., for about a month and he had rented the defendant cars at least a dozen times. On all these occasions the automobile was returned as required by contract. On May 6th the defendant rented a green Oldsmobile 1947 4-door automobile. He drove the car away, and the next time they heard of the car was in the early part of August when it was disclosed it was reported in the 18th Street Garage in St. Louis, Mo. This information, according to the testimony of Mr. Gene Hines, was acquired by the General Motors Acceptance Corporation representative in Providence, R. I., from the defendant himself who had talked with the G. M. A. C. representative there. On the basis of the information received from Chapman, the defendant, the ear was picked up in St. Louis by the Henry Hudson, Inc., representative on August 14, 1948. On this evidence the state rested its case, a demurrer was interposed and overruled. The defendant contends the court erred in overruling his demurrer. With this contention we cannot agree. Under the law it could rightly be inferred by the trial court from the foregoing facts that the car had been obtained through larceny by fraud with the intention to permanently deprive the owner thereof, since intent may be shown by circumstantial evidence. Derrisaw v. State, 29 Okla. Cr. 377, 234 P. 230; Fuller v. State, 70 Okla. Cr. 408, 106 P. 2d 832. Sufficient circumstances had been shown to warrant the overruling of the demurrer.

The evidence offered by the defendant discloses that on May 6, 1947, he was a resident of Tulsa, Okla., employed by the Frank Manufacturing Company and had been so employed by them for about two and a half years preceding the commission of the alleged offense, and that as such employee, and personally, he frequently rented cars from the Henry Hudson, Inc., for periods of time as long as 10 days to two weeks, during all of which time the car was not returned to them but was in his sole possession. He testified that on May 6, 1948, he rented the car herein involved to go to Vinita, Okla., to see his wife who had been confined in the Eastern Oklahoma Hospital for about two months and where she had been confined on prior occasions. He testified he got drunk shortly before renting the automobile on the occasion in question. He continued drinking and did not stop at the hospital because, when he arrived at Vinita, he was so drunk he would not present himself. Apparently, he returned to Tulsa, and remained there until May 10, 1948, where he wrote a hot check for $20. He continued drinking and drove the car to Kansas City and Springfield, Mo. While in Kansas City he gave hot checks, one especially to Woolf Brothers in the sum of $57.92. Thereafter, he drove to Springfield and to St. Louis, Mo. He remained in St. Louis for three or four days when he dedetermined to put the automobile in question in storage at the 18th Street Garage. He did not notify the Henry Hudson, Inc., where the car was. The reason why he did not, he said he could not explain. In addition to the marks of identification heretofore testified to by state’s witness Mr. Smith, the defendant testified there Avas the Fleet Owner’s service policy in the automobile at the time of the storage thereof. From St. Louis, the defendant, Chapman, went to Chicago and there passed hot checks; from Chicago he went to Cleveland, Washington, New York and Boston. In Boston he said he seemed to be sobering up. In scriptural language, that was the place where “the young man came to himself”. In Boston he voluntarily gave himself up to the officers and Avas given a sentence of three months for two hot checks he had passed there. This sentence was suspended with one year’s probation. From Boston he went to Providence, R. I., where he informed the representative of the G. M. A. C. of the whereabouts of the Henry Hudson, Inc., automobile. Thereafter he left ProAÚdence by means of hitchhiking and was picked up by the highway patrol and held for the Chicago police. In Chicago he was sentenced to six months in the county jail, which time he served, and was then returned to Tulsa, Okla., to face the charge herein involved. The defendant positively denied that it was his intention at the time of acquiring the automobile, or at any time subsequent thereto, to appropriate the same to his own use and deprive the Henry Hudson, Inc., permanently thereof. On cross-examination the defendant admitted that he had been writing hot checks in Tulsa before as well as subsequent to the time of renting the car. One of the hot checks he gave to the Harvard Dry Goods Company was written and passed on April 14, 1948. This he admittedly executed while he was sober. He admitted passing other hot checks prior to the renting of the automobile which he said he passed while he was drunk. The trial court could reasonably conclude that his desire to escape from these malefactions formed the motive for the fraudulent possession of the car. On rebuttal, the state offered proof to the effect that at the time of renting the automobile the defendant was not drunk, and apparently had not been drinking. The judgment and sentence herein complained of was predicated upon the foregoing evidence. The defendant contends the court erred in failing to render judgment in his favor at the conclusion of all the evidence. With this contention we cannot agree.

This case is one that presents a situation, the conclusion as to which is dependent upon one’s viewpoint of the evidence. The facts when viewed as the trial court viewed them supports the conviction that the defendant procured the car through larceny by fraud with the intent to permanently deprive the owner thereof, and to escape his prior malefactions. As to the defendant’s defense, the trial court found he did nothing to disclose the whereabouts of the car until he saw escape was not possible. Then it was be busied himself about disclosing its location. In other words, the trial court did not believe the defense. On the other hand, when viewed in another light, if the car was lawfully obtained, and later an intent was formed to steal the same, that would constitute embezzlement. Riley v. State, 64 Okla. Cr. 183, 78 P. 2d 712. Further, if the car had been lawfully obtained, with the subsequent intention only to temporary deprive the owner thereof, intending to return the same, that would constitute trespass. Saferite v. State, 67 Okla. Cr. 229, 93 P. 2d 762. But the question of intent to commit larceny is, a question of fact to be determined by the jury under the circumstances and the evidence. Baker v. State, 73 Okla. Cr. 13, 117 P. 2d 174; Jones v. State, 83 Okla. Cr. 358, 177 P. 2d 148. So, also is the question of the defendant’s claim of intoxication. Huffman v. State, 24 Okla. Cr. 292, 217 P. 1070; Calvert v. State, 55 Okla. Cr. 346, 30 P. 2d 717; Derrisaw v. State, supra. Since the defendant waived a jury and elected to try the case to the court, the trial court’s findings have the same effect as the verdict of a jury. Trott v. State, 62 Okla. Cr. 52, 70 P. 2d 118; Gerner v. State, 64 Okla. Cr. 104, 77 P. 2d 1190. Finally, in considering the sufficiency of the evidence, the function of this court is limited to ascertaining whether there is a basis in the evidence on which the jury could reasonably conclude that the accused is guilty as charged, and where there is such a basis, the conviction will not be reversed for insufficiency of the evidence. Jamison v. State, 59 Okla. Cr. 62, 56 P. 2d 905. The same rule applies to the judgment of the trial court on a finding of guilty where a jury has been waived. The evidence is, sufficient when viewed from the trial court’s standpoint to establish all of the essential ingredients of larceny by fraud and thus to support the conviction. For all of the above and foregoing reasons, the judgment and sentence herein imposed is affirmed.

JONES, P. J., and POWELL, J., concur.