text:
    FRANK WISWELL v. STATE.
    No. A-2455.
    Opinion Filed July 11, 1918.
    (173 Pac. 662.)
    1. COURTS — County Stenographer — Mandatory Statute. Section 2, c. 161, Sess. Laws 1913, changes the law providing for the appointment of a county stenographer so that the appointment is made by the court clerk upbn the approval of the county court, and is confirmed by the county commissioners. The law. is mandatory, and the proper administration of justice demands prompt compliance upon the part of the public officers charged with action in the premises.
    2. TRIAL — Stenographer—Right to Transcript of Testimony. A person charged with violating a penal statute in this jurisdiction is entitled to have the testimony and all proceedings had in a trial before a court of record taken in shorthand by a court reporter, and upon proper'and lawful demand is entitled to have a transcript of the same for the purpose of taking an appeal by case-made. If this right is denied and a conviction results, a new trial will be awarded upon appeal.

      Appeal from County Court, Sequoyah County; J. G. McCombs, Judge.

    Frank Wiswell was convicted of assault and battery, and he appeals.
    Reversed, and cause remanded, with direction to grant a new trial.

      Frye & Frye and Joe B. Allen, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Frank Wis-well, was convicted at the January, 1915, term of the county court of Sequoyah county on a charge of assault and battery, and his punishment fixed at a fine of $50.

It is necessary to consider only the first assignment of error discussed in the brief, which is, in effect, that the court committed prejudicial error in forcing the accused ■ into trial without having first provided for taking the testimony offered at the trial by a court reporter, proper demand having been made that this be done. The court denied the request, and gave as his reason that the county had not provided a court reporter as authorized by. law. Section 1833, Rev. Laws 1910, contained authority for the county court to appoint a shorthand reporter, to be known as county stenographer, for the use of the county court. The Legislature, however, in the year 1913, passed an act depriving the county court of the authority to appoint a stenographer, and gaVe that power to the court clerk by section 2, c. 161, Sess. Laws 1913, which is as follows:

“The court clerk shall have the power to appoint one, or more deputy court clerks by and with the consent arid approval of the board of county commissioners; one of said deputies shall be a competent stenographer, whose appointment shall be first approved by the county judge,' and who shall possess the same qualifications in the art of stenography as is now required by law of such officer in the district court.”

Counsel for the state contend that the passage of this act and the deprivation of the county court of the power to appoint a court stenographer for the use of the court also deprive a person charged with crime of the right to have the proceedings taken in shorthand and transcribed in the form of a case-made, as provided by section 1834, Rev. Laws 1910. This section reads as follows:

“It shall be the duty of the county stenographer under the direction of the county judge, to take down in shorthand the oral testimony of witnesses, the rulings of the court, the objections made, and the exceptions taken during the trial of all civil and criminal cases, and also such other matters as the court shall order, and in all criminal cases to make out and file with the judge or clerk of the county court a transcript of his shorthand notes, when the same shall bave been ordered by the court.”

We do not find where this statute has, by any subsequent act of the Legislature, been • repealed. Section 1821, Eev. Laws 1910, provides as follows:

“For the trial of all civil and criminal cases in the county court the pleadings, practice and procedure, both before and after judgment, shall be the same as that of the district court, except where special statutory proceedings are prescribed.”

This statute does not seem to have been repealed. The question presented for consideration resolves itself into the proposition of whether or not it is the mandatory duty of the court clerk to appoint a deputy possessed of the qualifications provided by statute, and whether or not it is the mandatory duty of thé county commissioners to approve the appointment and provide for the pay thereof upon the proper approval of the county judge of the personal qualifications of such deputy, and, in addition, whether or not the accused is entitled to have the proceedings taken in shorthand and properly transcribed for use upon appeal. Under the holding of this court prior to the adoption of the statute in question, and in view of the wording of the various statutes bearing upon the proposition, there is no doubt but that it is the mandatory duty of the court clerk to make the appointment of a deputy who possesses the qualifications described in the statute, supra, and as much the duty of the county commissioners to approve the same when the judge shall have given hiis assent to the appointment.

It is evident that the purpose of the statute in requiring the approval of the county court is to secure the services of an efficient and satisfactory county stenographer, in order that the rights of the individual citizen who may. be brought before the county court for trial, as well as the rights of the public, shall be duly safeguarded. The wording of these sections of the statute and the clear intent and purpose of them is to change the status of the court reporter only in that he is appointed by the court clerk and can be used by him for work in his office at such times as he is not engaged in actual service under the orders of the county court as court stenographer. The rights of the public and the rights of individuals who have business in the court are not changed in any manner. It therefore follows that the accused is entitled to a stenographic report of all proceedings had in the trial. The failure of the clerk to make this appointment, so that the stenographer shall be available when a criminal case is to be tried, works a hardship only upon the taxpayers of the county in the event the attorney for any person brought before the court for trial properly preserves the record, so that the exceptions based upon the proposition may be presented on appeal.

The doctrine that a person charged with the violation of a penal statute has a right to a record of the proceedings taken in shorthand and transcribed by a court reporter for. use on appeal has long been established in this jurisdiction, and cannot be taken away by the failure of a public officer to perform his plain duty. The duty of the officers under the statute here is so palpably clear that there is hardly an opportunity for any misunderstanding.

The request of the accused to have the proceedings taken by an official reporter and transcribed for use upon appeal having been denied, there is no alternative left to this court but to reverse the judgment and remand the case, with directions that a new trial be granted at the public expense.

This is the first time this question has been raised in this court, and we trust that it will not be necessary for • it to be raised again. The duty of public officers to take proper action in this connection is so plain and the consequences resulting from a failure to perform them are so serious that it will only be necessary for the various county atorneys to call the attention of the court clerk to them in order that this condition will not again arise.

The judgment is reversed, and the cause remanded, with directions to grant a new trial.

DOY>LE, P. J., and MATSON, J., concur.


source: Caselaw Access Project

author: ARMSTRONG, J.

license: Public Domain

text:
    P. W. CRESS v. STATE.
    No. A-3120.
    Opinion Filed July 11, 1918.
    (173 Pac. 854.)
    1. VENUE — Affidavit for Change of Venue — Jurisdiction of Examining Magistrate — Statute. Under section 6149, Rev. Laws 1910, a county judge sitting as an examining magistrate loses jurisdiction of a cause pending before him when a legal affidavit for a change of venue is filed. His duty in the case thereafter is purely ministerial, and he can only enter a proper order transferring the cause to another magistrate as the statute provides.

      2. PRELIMINARY EXAMINATION — Exercise of Judicial Power-County Judge. The conduct of an examining trial by a county judge does not involve the exercise of the judicial power of the county court as a court of record. He exercises only the powers and jurisdiction that a justice of the peace would exercise when conducting a similar inquiry.

      3. CONTEMPT — Proceedings—Judgment. Proceedings in contempt must be based upon facts from which a clear deduction of guilt can be established. The judgment of a court imposing fine or confinement, or both, upon a person charged with contempt, must disclose the necessary facts upon which a judgment for contempt can rest; otherwise, the person penalized will be entitled to a discharge.
    4. SAME — Punishment—Power of Courts of Record. The power of courts of record to punish for contempt is inherent, but it must be exercised only when essential to the proper protection of the dignity of the court and to enable it to administer justice and transact its public business with decorum.

      Appeal from County Court, Noble County; A. Duff Tillery, Judge.

    P. W. Cress was convicted of contempt, and appeals.
    Reversed and remanded, with directions to dismiss.

      Cress & St. Clair, for plaintiif in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

Plaintiif in error, P. W. Cress, was convicted in the county court of Noble county on the 14th day of August, 1917, of direct contempt of the county court of said county, and his punishment fixed at a fine of $50. ■ An appeal was lodged in this court within due time and -under the provisions of the statute, the purpose of which is to secure a reversal of the judgment of the county court.

The judgment of the court recites that:

“In the immediate view and presence of the court, the said P. W. Cress was guilty of direct contempt of court by reason of his -disorderly, insolent behavior committed during a session of the said court and in its immediate view and presence, in ordering and instructing a certain witness, one Charles Ward, not to be sworn'and to refuse to give testimony in a certain matter therein pending in said court, when ordered by the judge of the said court to so be sworn and give testimony, and in persisting in such order and instruction after being warned by the court to desist from so doing.”

A motion was filed to vacate and set aside the judgment complained of. This motion is as follows:

“First. On the ground and for the reason that said finding and judgment is unfounded in fact.
“Second. On the ground and for the reason that the said P. W. Cress appeared before the said A. Duff Tillery, county judge of said Noble county, on the 14th day of August, 1917, as attorney for one Charles" Ward, who was charged by the State of .Oklahoma in a complaint with assault with intent to kill, a copy of which complaint is attached hereto, marked ‘Exhibit 1,’ the same being a felony under the laws of the State of Oklahoma, That at said- time the said P. W. Cress as a member of the firm of Cress &’St. Clair appeared for said Charles Ward and presented to the court a demurrer which was filed in said court. A copy of which is hereto attached and made a part hereof, the same as if herein in full set out marked ‘Exhibit A,’ and that said court after hearing the argument upon said demurrer of the said P. W. Cress, as attorney for said defendant, and the argument of H. A. Smith, as attorney for Noble county, Okla., against said demurrer, overruled the .same and duly allowed an exception thereto to the said defendant at said time. That, thereupon, the said P. W. Cress presented to said court or judge, as a magistrate before whom said preliminary hearing was pending, the affidavit of said Charles Ward for a change of venue from sai'd magistrate or judge, which had been filed, a copy of which is hereto attached and made a part hereof, marked ‘Exhibit B.’ That the said A. Duff Tillery, county judge, requested the said P. W. Cress to read said affidavit to him, and the said P. W. Cress thereupon read said affidavit to said judge. Thereupon the said A. Duff Tillery, county judge, ordered the said Charles Ward, the defendant charged with a felony in said criminal case, in violation of the constitutional rights of the said defendant, to stand up and be sworn as a witness in said cause. That the said P. W. Cress objected to the court’s ordering his client, the said defendant, to be sworn in said, cause and stated to the court, in substance, that the court was without authority to compel the defendant to testify in a case in which he was charged with a felony. That the, said court interrupted said statement of said P. W. Cress as counsel for said defendant, and ordered the sheriff to take charge of said P. W. Cress and not permit him to interfere with the proceedings of this court. That thereupon the said P. W. Cress, in obedience to the direction of said court, sat down, but instructed and advised the defendant, Charles Ward, not to be sworn as a witness in said court. That thereupon the said Charles Ward refused to be sworn in said cause, and stood mute when the court ordered, directed, and commanded him to be sworn therein. That thereupon the said court ordered and directed the sheriff to take the said Charles Ward and lock him in a cell in the common jail of Noble-county, Okla., and keep him there confined and feed him only bread and water until said Ward consented to be sworn. That thereupon the said judge of said court demanded of said P. W. Cress what he had to say why he should not be fined for contempt of court in directing said Charles Ward not to be 'sworn in the presence of the court. That the said P. W. Cress requested the court- that he be granted a hearing, and requested repeatedly that -the court permit a stenographer to take said proceedings, and stated to the court, in substance, that under the Constitution of the United States and that of the State of. Oklahoma, a defendant charged with a - felony could not be compelled to be sworn and testify in a case in which he had not voluntarily offered himself as a witness. That thereupon the said H A. Smith stated in substance that the filing of said affidavit for a change of venue was a voluntary submission by the defendant of himself for examination. That thereupon the said P. W. Cress stated that he would like to present the law sustaining his proposition, to which the court replied that he did not care to hear from him further, ordered him to be seated, and thereupon pronounced judgment, fining the said P. W. Cress the sum of $50 for contempt of court, and directing that he would not be permitted to practice in said county court until he had paid said fine, and that he did not care ‘whether he ever paid it or not, besides using other violent, abusive,, and accusatory language toward the said P. W. Cress. That the said P. W. Cress from time to time demanded that said proceedings of the court be taken in shorthand by the stenographer, who was sitting at her table, in the presence of said court; but the court refused to make an order for the stenographer to take said proceedings, and she sat silently there without taking the same.
“Said movant further states that he used no disrespectful language of any kind or character toward the court, but merely sought to present his client’s cause faithfully and honestly as his counsel and advocate, and that said action of the court was abusive, unreasonable, unfair, unjust, and without foundation in fact.”

It appears further that the plaintiff in error stated to the court that under the Constitution a person charged with a felony could not be made to testify if he di'd not voluntarily offer himself as a witness, and that he was only trying to protect his constitutional rights, and that the filing of the application for change of venue deprived the court of further power to proceed in the action. H. A. Smith, attorney for the opposition; stated that the filing of the application for change of venue was a voluntary submission by the defendant of himself for examination. The plaintiff in error asked for an opportunity to present the law on the proposition, and the court stated that he did not care to hear further from him. The judgment was thereupon pronounced.

Numerous affidavits in support of these proceedings are included in the record, which is certified to by the clerk of the court and made up without the approval of the county court, which refused to have anything to do with it. No controverting affidavits were included in the record, and no statement of the court under his official oath made and included therein. The record as made-and filed, therefore, discloses nothing further.

It is the contention of counsel for plaintiff in error that the entire proceedings upon the part of the county court after the filing of the application for change of venue were void; that the filing of the application for change of venue relieved said court of further jurisdiction in the premises, and that he had power then and thereafter only to make an order transferring the cause to some other convenient magistrate, as provided by statute, in order that a proper and legal examining trial might he held. It is a well-settled principle that, when an accused is entitled to a change of venue from a magistrate court, he is required only to file the statutory affidavit, and, if the magistrate takes any action in the cause after the affidavit for change of venue is filed, such proceedings are void.

The statute upon which the doctrine is based i's. section 6149, Rev. Laws 1910. The Supreme Court of this state, in an opinion by Mr. Justice Hardy in Marshall, County Judge, v. Sitton, not yet officially reported, 172 Pac. 964, discussed thoroughly the principle involved, and the discussion expresses the views of this court. In that opinion it is said:

“The conduct of such examination (meaning the examining trial) is not the exercise of any part of the judicial power of the county court as a court of record, but the county judge in the conduct thereof exercises only the powers and jurisdiction that a justice of the peace would exercise when acting as a magistrate in preliminary examinations” — citing authorities.
“When application is made by a person charged with a crime for a change of venue in compliance with section 6294, Rev. Laws 1910, before preliminary examination is held, the magistrate is vested with no discretion as to whether such change shall be granted, nor is he authorized to determine the truth of the allegations. The duty to be performed by him is purely ministerial, and the right to the change is absolute.”

Again the court says:

“It seems clear from these provisions of these statutes “that the right to'the change is absolute, and does not depend upon the discretion of the magistrate to whom the application is made, but becomes complete when the affidavit required by said section has been filed by the defendant or some one in his behalf.”

In the case of State v. Sorensen, 84 Wis. 27, 53 N. W. 1124, the principle is laid down that the filing of the proper affidavit of prejudice with the magistrate before whom a cause is pending deprives such magistrate of authority to act further, save only the power to transfer the case “to the nearest justice or magistrate qualified by law to conduct the examination, who shall proceed with the examination, etc.” The right of a person charged with violation of a penal statute to a fair and impartial hearing before an unbiased magistrate is an important and substantial right, of which he cannot be deprived except by his own act.

In State v. Weltner, 7 N. D. 522, 75 N. W. 779, it is said:

“Upon the filing of a proper affidavit, it was the duty of the justice to transfer the action to another justice of the peace. The statute is mandatory in its terms, and leaves no discretion with the justice. * * * It is perfectly clear that after an affidavit is filed, which under the statute is sufficient in substance, the magistrate has no power or 'authority to proceed with the preliminary examination of the defendant, and can lawfully do nothing further in the action except to transfer the same, and the papers therein, to another justice.”

These principles of law are inherently just and are applicable to- conditions i'n this jurisdiction. The statutes are identical in - purpose and practically so in wording. The filing of proper affidavit for change of venue before a magistrate, therefore, deprives him of further power or authority under the law over the subject-matter, and he can only transfer the cause to another j ustice of the peace or magistrate in the manner provided by the statute. The magistrate having lost jurisdiction in this cause, upon the filing of the application for a change of venue, to hear the same further, it became his duty to transfer it without attempting to examine the defendant for any purpose. The attempt upon his part to do so was wholly without authority of law and his acts void.

The judgment of the court fails to disclose sufficient facts upon which to base a contempt proceeding, and for that reason alone could not stand. The power to punish for contempt, while inherent in courts of record, is to be exercised only when absolutely essential to the proper protection of the dignity of the court and to enable it to administer justice and transact its business with decorum.

In the doctrine laid down by the Supreme Court in the case of Marshall, County Judge, v. Sitton, supra, with which doctrine we thoroughly agree, the conduct of an examining trial by a county judge does not involve the exercise of any judicial power of the county court as a eourt of record, but the county judge acts only as a magistrate with the power- of a justice of the peace. It therefore follows that the dignity of the county court was' not offended in this matter in any event.

In Ex parte Shortridge, 5 Cal. App. 371, 90 Pac. 478, the principle involved was considered by the Supreme Court of California. Among other things, in the discussion it is said.

“* * * No intendments or presumptions may be indulged in against the prisoner, but the order must be strictly construed in favor of' his liberty; and hence an an attorney i’s entitled to discharge, where the order of commitment merely discloses that, while a witness was being examined, he persisted in addressing the court, though admonished not to do so, it not appearing he was not rightfully and respectfully discharging his duty to the court and his client.”

The case under consideration is identical in principle. The record fails to show any unlawful act upon the part of the plaintiff in error. In fact, it rather appears that he was attempting to protect the legal rights of his client, as it was his duty to do. The court evidently misunderstood the rights of counsel and the law applicable.

Pursuing the discussion further, the court in the Shortridge Case, supra, said:

* * The facfg set forth in the commitment must be sufficient to show contempt within the meaning of the law without the aid of intendments and presumptions. ‘The power of the court to punish for an alleged contempt, of its authority, though undoubted, is in its nature arbitrary, and its exercise is not to be upheld except uñder the circumstances and in the manner prescribed by law.’ It is essential to the validity of the proceedings in contempt, subjecting a party to fine and imprisonment, that they show a case in point of jurisdiction within the provisions of the law by which such proceedings are authorized, for mere presumptions and intendments are not to be indulged in their support.”

The same court, in Overend v. Superior Court, 131 Cal. 280, 63 Pac. 372, said:

“In the case of a contempt committed in the presence of the court, the section says that the order adjudicating the contempt must contain a recital of the facts. This provision can. only mean that the order must contain a recital of those facts which make out a case of contempt; that is, a recital of those facts which, in a .case of constructive contempt, the law says must be incorporated in an affidavit.”

See, also, Batchelder v. Moore, 42 Cal. 415; People v. Turner, 1 Cal. 155; People v. Rowe, 7 Cal. 183; Ex parte Zeehandelaar, 71 Cal. 238, 12 Pac. 259.

In the Zeehandelaar Case the prisoner was discharged because the return did not show that a question that he had refused to answer as a witness was pertinent to the matter in issue before the court.

The judgment of the court in the case under consideration does not set forth any facts disclosing illegal conduct upon the part of the plaintiff in error. It contains only conclusions. It appears, therefore, upon a thorough consideration of the question and the authorities, that the judgment appealed from, in addition to being void for lack of jurisdiction, is insufficient for the reason that the facts disclosed by the record and recited in the judgment do not disclose a legal basis for a judgment of contempt. Schwartz v. Superior Court, 111 Cal. 106, 43 Pac. 580.

For the reasons indicated, the judgment is reversed, and the cause remanded, with directions to dismiss.

MATSON, J., concurs; DOYLE, P. J., not participating.


author: PEE CUEIAM.

text:
    WADE FOREMAN v. STATE.
    No. A-2920.
    Opinion Filed July 20, 1918.
    (173 Pac. 853.)
    INTOXICATING LIQUORS — Unlawful Sale — Sufficiency of Evidence. Evidence held to sustain a conviction for an unlawful sale of intoxicating liquor.
    ■ Appeal from County Court, Okmulgee County; Mark L. Bozarth, Judge.

    Wade Foreman was convicted of unlawfuly selling intoxicating liquor, and he appeals.
    Affirmed.

      E. M. Carter, for plaintiff in error.
   PEE CUEIAM.

Plaintiff in error, Wade Foreman, was convicted in the county court of Okmulgee' county of the crime of unlawfully selling certain intoxicating liquor, and his punishment fixed at a fine of $200, and imprisonment in the county jail for a period of 60 days. From this judgment he has appealed.

No brief has been filed on behalf of the plaintiff in error, but when the case was called for oral argument, counsel for plaintiff in error appeared in open court, and stated that the appeal was taken solely because there was no evidence to support the conviction. We have carefully examined the evidence in this respect, and find the positive testimony of two witnesses to the effect that the plaintiff in error made the particular sale alleged in the information. These witnesses are corroborated by the sheriff and a deputy sheriff of Okmulgee county, who saw them go into plaintiff in error’s place of business about 10 o’clock one night, and in a short time come out from such place of business. One of the witnesses was then searched by the sheriff, and a half pint of whisky found on his person. The plaintiff in error claimed that he was at home sick at the time of the alleged sale, but the testimony in support of his alibi lacks that quality which would convince a person of ordinary intelligence of its truthfulness. The trial judge, in his rulings upon the admission and rejection of evidence, and in the instructions given, was very favorable to the plaintiff.

There is no error in the record which would justify the court in reversing the judgment, and the same is affirmed.


text:
    GILBERT BLAKE v. STATE.
    No. A-2713.
    Opinion Filed July 23, 1918.
    (173 Pac. 963.)
    APPEAL AND ERROR — Sentence—Reversal. When a person is tried on a charge of assault with intent to kill, and the state’s proof establishes his guilt beyond a reasonable doubt, and no proof is offered on behalf of the person accused in mitigation or justifidhtion of his act, but instead a plea of guilty is entered, and the court discharges the jury and imposes punishment in the manner .provided by law, the judgment will not be disturbed upon appeal, unless it can be made to appear that an injustice has been done or some lawful right of the accused denied him.

      Appeal from District Court, Muskogee County; R. P. de Graffenried, Judge.
    Gilbert Blake was convicted of assault with intent to kill, and he appeals.
    Affirmed!

      B. Broaddus, for plaintiff in error.

      S. P: Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

Gilbert Blake was tried and convicted at the November, 1915, .term of the district court of Muskogee county on a charge of assault with intent to kill, and his punishment fixed at imprisonment in the state penitentiary for five years. From this judgment he has filed an appeal in this court, seeking a reversal.

The information charges the offense to have been committed upon the person of Rebecca Jones abo'ut the 1st of May, 1915. The plaintiff in error was duly arrested and brought before the district court of Muskogee county for trial. The state introduced a number of witnesses to establish its case, and from the testimony it appears that the plaintiff in error and Rebecca Jones were negroes living in Muskogee, and had been sweethearts for some time; that on the night of May 1st they attended a carnival on the streets of Muskogee, and about 11 o’clock started home. The Jones woman desired to go home with a relative. The plaintiff in error as her escort objected to her going to that particular place, and undertook to force her to return to her own home. In the argument'the plaintiff in error drew a knife and slashed the Jones woman in the neck, inflicting a painful and dangerous wound, from the effects of which she was confined to her room for> more than a month. No testimony of any kind was offered on behalf of the plaintiff in error. At the close of the state’s case, he entered a plea of guilty. The jury was discharged, and the court in due course passed judgment, as the law provides, fixing the punishment of the plaintiff in error at imprisonment in the state penitentiary for a period of five years. A motion for a new trial was filed and affidavits attached, from which affidavits it appears to have been the purpose of counsel for the plaintiff in error to induce the court to extend a new trial because two or three of the persons who did not appear and testify at the trial desired then to say that they saw the fight, and that the plaintiff in error could not have inflicted the wound upon Rebecca Jones, because he was not close enough to slash her with- a knife in the manner charged by the information and disclosed by the state’s proof. It is also alleged that the plaintiff in error was an illiterate, ignorant negro. They detail no facts, but state these things in generalities.

The court denied the motion, and refused to open the case. The appeal was filed here on the 12th day of April, 1916, as that of a poor person. No briefs havé been filed and no. appearance made for oral argument. The record has been carefully read and considered, and. we find no just complaint against the action of the court. There is no doubt but that the plaintiff in error committed the crime charged against him, nor is there any doubt but that the punishment fixed by the court is just. In our judgment it is rather lenient.

No errors of law appearing, and none of fact being disclosed, there is no reason why the judgment should be disturbed by this court. It is therefore in all things affirmed.

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


text:
    JASPER CARL DAVID v. STATE.
    No. A-2694.
    Opinion Filed July 20, 1918.
    1. EVIDENCE — Confessions—Cross-Examination. The state is entitled to prove admissions of guilt or statements tending reasonably to connect the accused with the crime charged as a part of its case in chief, and there is no objection to this being developed on cross-examination or proved in rebuttal when the accused on cross-examination denies the statements or admissions.
    2. JURV — Qualifications.—Time to Object. The fact that a member of the jury panel sitting in the trial of a criminal cause has been a county jailer or deputy sheriff and- has had charge of the prisoner at the bar is not sufficient ground for vacating a verdict and judgment of conviction in the absence of any indication that injury resulted to the accused and in the absence of any showing to the effect that challenge was made or objection offered at the time such juror was examined on voir dire or accepted in the panel. In the case under consideration the plaintiff in error knew all the facts, and if he was not sufficiently dissatisfied with the juror to object at the time of the trial, this court would not feel warranted in reversing the judgment when no injury is made to appear.

      Appeal from District Court, Major County; James B. Cullison, Judge.

    Jasper Carl David was convicted of larceny, and appeals.
    Affirmed.

      C. B. Wood and Hill & Wiles, for plaintiff in error.

      S: P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Jasper Carl David, was convicted at the October, 1915, term of the district court of Major county on a charge of larceny, and his punishment fixed at imprisonment in the state penitentiary for a period of four years.

The information charges the plaintiff in error with the larceny of 100 bushels of wheat from the granary of C. C. Hodge in Major county about the 26th of July, 1915.

The proof discloses the fact that on the night of July 26th about 100 bushels of wheat was stolen from the granary of C. C. Hodge; that a man named Webster discovered the thieves at the granary and reported the same to Mr. Hodge and other neighbors. This witness saw a wagon and team belonging to the plaintiff in error at this granary, and also another wagon and team. Three parties were indicted, charged with the theft of this wheat.- The wagons were traced to another granary, and there the wheat and teams were found. Mr. Webster, Hodge’s son, and other neighbors approached the place where the wagons had been driven with the stolen wheat, saw the thieves, who ran away, but being unarmed, they felt that it was not safe to approach them. Some of the fugitives were heard running into nearby water. The plaintiff in error, when arrested, was wet and his clothes were water soaked. The sheriff testified that he examined both the person and clothing of this party. Three arrests were made and a joint information filed. A severance was taken and the plaintiff in error placed on trial alone. The father of one of the codefendants admitted that one of the teams and one of the wagons were his. The question of guilt or innocence of codefendants does not arise in this review.

On his own behalf the plaintiff in error denied the charges and contradicted the material testimony given by the sheriff and all other witnesses in the case. The jury, after hearing all the testimony, found against him on the facts, and their finding will not be disturbed by this court unless prejudicial error of law is made to appear. A review of the assignments will be had for the purpose of determining this feature.

The first assignment of error complained of is based upon the contention that the county attorney was erroneously permitted to cross-examine the plaintiff in error concerning conversations he had had with a codefendant named Goertz, in which he was asked if he did not say to the codefendant: “You get up and plead guilty and tell them that you hired me to go and help haul this wheat away and that I did not know anything about you stealing it” The witness denied having made a statement of this kind, and. thereafter the county attorney introduced a witness named Miller, who testified in answer to questions that he heard the conversation and that defendant said to Goertz: “You tell them that you hired me to go with you and get this wheat and I knew nothing about it being stolen, because I have a bad reputation and my reputation alone would convict me in this case.”

Complaint was made of the ruling of the court regarding this testimony. First, because it was not a matter of impeachment, and did not tend to show that David had made a false statement or to contradict him. Second, that the answer given by Miller was not responsive to the proposed impeaching question. Counsel argue that the testimony was admissible, if admissible at all, on the theory that it constituted an admission on the part of the plaintiff in error, and contend that the statement is not sufficient in law to constitute an admission against interest.

We are of opinion that the county attorney was entitled to prove this fact as a part of his case if he so desired, and that it was competent in the manner offered. If the plaintiff in error had not been connected with the crime and had no part therein, there would have been no reason why he should have tried to induce another participant to swear that he had hired him to go along. He .was connected with' this crime by the proof, and this conversation strengthens the proof. We do not feel warranted in reversing the judgment upon this ground.

Counsel supplement the argument upon this proposition by attacking the credibility of the state’s witness. The attack made tends to indicate that the witness was not a model citizen himself, and had been guilty of abducting a female. All matters affecting the credibility of witnesses were developed before the jury. They saw and heard them' testify, and there is no sufficient reason made to appear why we should interfere with the findings.

Counsel complain of the court’s refusal to grant a new trial on the ground that the juror Wimpey was not qualified to sit in the cause for the reason that he had been a deputy sheriff and had custody of the plaintiff in error as jailer after he was arrested on this charge. The question was not raised until after the verdict was returned by the jury, and nothing is disclosed by the record to indicate that the juror was in any way biased or prejudiced against the plaintiff in error, and nothing indicates that his substantial rights were prejudiced by reason of the fact that this man was a member of the panel. It was the duty of counsel to examine the jurors on voir dire and discover by proper investigation the facts affecting their qualifications, and then to seasonably raise any objection which might exist as to any member of the panel. The plaintiff in error at all times-knew the facts. If he failed to inform his attorney, it is reasonably probable he did so because he was satisfied, and being so satisfied for the purpose of the trial, this court can see no reason why it should not be satisfied after the trial and permit the judgment to stand. There is nothing to indicate that the juror realized that he was in any way disqualified, or that he had any desire to serve on thé jury. If the proper challenge had been made to the juror sitting in the cause before the jury had been impanelled, there is no doubt but that the trial court would have excused him. The objection having been made as it was, and under the circumstances it was, it came too late. No showing of probable injury appearing, this contention offers no sufficient reason for a reversal of the judgment.

The only other assignment of error urged in. the' brief is based upon the contention that the verdict is contrary to the law and the evidence. The argument offered discloses no ground upon which a reversal could lawfully be. based. ■ -

The judgment of the trial court is in all things affirmed.

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


author: MATSON, J.

text:
    JIM DARNEAL v. STATE.
    No. A-2560.
    Opinion Filed September 11, 1917.
    Rehearing Denied August 27, 1918.
    (174 Pac. 290.)
    1. WITNESSES — Compefcentcy—Discretion of Trial Court. The question of the competency of a witness under ten years of age is a matter addressed peculiarly to the discretion of the trial court. ■ ’

    2. APPEAL AND ERROR — Discretion of Trial Court^Competency of Witness. Where the trial court permits such a witness to testify and it appears conclusively from the record on appeal that there has been an abuse of that sound discretion placed in such court by section 5050, Rev. Laws 1910, the appellate court is authorized and will reverse a judgment of conviction, upon such ground if it appears that the testimony of such witness was prejudicial to the accused; however, on the other hand, where no abuse of discretion appears, then this court is not authorized to reverse a judgment of conviction solely upon the ground that a witness under ten years of age was permitted to testify for the state.
    3. TRIAL — Instruction—Credibility of Single Witness. It is not error to refuse to give an instruction which has a tendency to single out any particular witness by calling to the attention of the jury that such witness has been impeached. The general instruction covering the credibility of all witnesses is a sufficient rule for the guidance of the jury in determining the credibility of any witness.
    4. RIOT — Disguise—Sufficiency of Evidence. Evidence examined, and held sufficient to sustain a conviction for the crime of riot committed while disguised.

      Appeal from District Court, LeFlore County; W. H. Brown, Judge.

    Jim Darneal was convicted of the crime of riot, and he brings error.
    Affirmed.

      Neal & Fleming, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

Jim Darneal was convicted in the district court of LeFlore county of the crime of riot, committed by himself and- several others,' acting together with him disguised, and sentenced to the penitentiary for a term of two years’ imprisonment.

According to the witnesses for the state, this plaintiff in error and several others, in the nighttime, took an old man by the name of W. J. Garrison from his tent where he was living with his two daughters, on the banks of a small creek in LeFlore county, making a livelihood by fishing, dragging him a short distance, beating, whipping, and otherwise abusing the old man, also cutting off his hair. The defense was an alibi. All of the parties to the crime lived in that immediate neighborhood, and each presented a different alibi. Jim Dar-neal asked for a severance, which was granted.

He first contends that the court erred in permitting Rachael Garrison, a girl nine years of age, to testify as a witness against him. The statute of this state governing the competency of witnesses of tender age is as follows (section 5050, Rev. Laws 1910) :

“The following persons shall be incompetent to testify. * * * 2. Children under ten years of age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly.’!

It is apparent from the reading of the above statute that the question of the competency of a witness under ten years of age is a matter addressed peculiarly to the discretion of the trial court. If the trial court permits such a witness to testify, and it appears conclusively from the record on appeal that there has been an abuse of that sound discretion placed in such court, then this appellate court is authorized to and will reverse a judgment of con? viction upon such ground if it appears that the testimony of such witness was prejudicial to the accused; however, on the other hand, where no abuse of discretion appears, then this court is not authorized to reverse a judgment of conviction solely upon this ground. The weight of authority is clearly to the effect above stated. The following cases are in point: Walker v. State, 12 Okla. Cr. 179, 153 Pac. 209; Milligan v. Territory, 2 Okla, 164, 37 Pac. 1059; People v. Swist, 136 Cal. 520, 69 Pac. 223; People v. Baldwin, 117 Cal. 244, 49 Pac. 186; People v. Daily, 135 Cal. 104, 67 Pac. 16; People v. Wilmot, 139 Cal. 103, 72 Pac. 838; State v. Blythe, 20 Utah, 378, 58 Pac. 1108.

The California and Utah statutes on this subject are identical with that of Oklahoma. The case of Birdwell v. U. S., 4 Okla. Cr. 474, 113 Pac. 205, relied upon by counsel for plaintiff in error, is not in point. The question there decided was based on the Arkansas statute operative in the Indian Territory prior to statehood, and the facts of that case are dissimilar to the facts in this. We have carefully examined the record, and find that the only objection made against the competency of the witness Rachael Garrison was because of her age. It was nowhere contended upon the trial, nor does it appear from the examination of the witness’ testimony! that she was incapable of receiving a just impression of the facts respecting which she was' examined, or of relating them truly, which deficiencies form the basis of the legal'objections that may be taken to the testimony of a witness under ten years of age' where it is not contended that she is of unsound niind. We are convinced that there was no abuse of discretion by the trial court in the instant case in permitting this witness to testify.

It is also contended that the court erred in refusing to give the following instruction requested by counsel for the defendant;

“You are instructed that one mode of impeaching the credibility of a witness is to offer evidence of such witness’ general reputation for truth and honesty in the corm munity where he lives, and if you find from the evidence in this case that the general reputation of any witness for truth and honesty has been shown to be bad in the community where such witness lives, you may consider such evidence in determining the question of whether such witness has .been impeached as the word ‘impeached’ is used in these instructions.”

Upon the trial certain witnesses were introduced who testified that the general reputation of the prosecuting witness 'W. J. Garrison for truth and honesty was bad; therefore it is contended that the failure of the court to give the foregoing instruction was prejudicial to the plaintiff in error in view of the fact that the court gave the following general instruction relative to the credibility of witnesses:

“You are the sole judges of the credibility of the witnesses and the weight to be given to the testimony of each. If the testimony of a witness is apparently candid and fair, reasonable within itself, and has been in no way impeached, you should not arbitrarily discard his testimony. 'It is your duty to reconcile the testimony if you reasonably can so that it all may stand. If you cannot reconcile the testimony, then, for the purpose of determining what testimony is worthy of credit, you may take into consideration the apparent candor and fairness of the witness, his demeanor upon the witness stand, the reasonableness of his or her story, the means of knowing the facts concerning which the witness testifies, whether or not the witness has been in any way impeached, the interest of the witness in the case, if any, whether the witness has made contradictory statements, and all the circumstances surrounding the case.”

It is contended that in the general instruction the court called attention to various ways of impeaching a witness without - calling attention to the fact that the method employed to impeach the witness Garrison was a proper .one, the only effect of the instruction requested was to call the specific attention of the jury to the fact that W. J. Garrison had been impeached.. We must presume that the average juryman has a reasonable amount of intelligence. Certainly at this late day in the history of criminal jurisprudence it would be folly to assert that, when a witness takes the stand and testifies that a certain other witness has the general reputation in the community where he resides of being untruthful, the average juryman does not clearly understand that the witness attacked has been impeached for truth. Instructions of the kind requested have met with the condemnation of this court. While perhaps it would not' be error, it has repeatedly been held that the better practice .is to refrain from the giving of any instruction which has a tendency to single out any particular witness by an instruction touching upon his credibility. The general instruction covering the credibility of all witnesses has been held to be a sufficient rule .for the guidance of the jury. Munson v. State, 13 Okla. Cr. 569, 165 Pac. 1162. For the reasons above stated, we believe this assignment of error to be. without merit.

Lastly it is contended that the evidence is insufficient to support the judgment. This prosecution is based upon section 2558 and the third subdivision of section 2559, Rev. Laws 1910, which read as follows:

“Any use of force or violence, or any threat to use force or violence if accompanied by immediate power of execution, by three or more persons acting together and without authority of law, is riot.”
“If such person carried at the time of such riot any species of firearms or other deadly or dangerous weapon, or was disguised, he is punishable by imprisonment in the penitentiary not exceeding ten years and not less than two.”

It is alleged in the information, and the state attempted to prove upon the trial, that the parties to the crime were disguised at the time of its commission.

The state’s evidence disclosed that the defendant was dressed almost entirely-in the wearing apparel of a woman, such as skirt, waist, and hat. His face was partly concealed by cloths and rags wrapped around his head. His eyes, nose, mouth, and a portion of each cheek were exposed. Others in the party were similarly attired, while some of the participants wore only male attire, with their features partially concealed by cloths.

The prosecuting witness and his oldest daughter were able to identify the defendant and those with him by 'means of recognizing their voices and familiarity with some of the clothes worn (as belonging to the Darneal family), and also by recognizing certain of the features not covered by the attempted disguise.

The fact that the disguise was penetrable leads to the contention that it was no disguise at all, and therefore the evidence is insufficient. In other words, there may be no conviction of a felony under the foregoing provision of law unless the participants are so completely disguised as to make it impossible to identify them; that is, a prosecution will only lie under this statute when it is impossible for the state to prove the offense. Such a construction would render the statute a dead letter.

For the position taken counsel for plaintiff in error rely upon the case of Dale County v. Gunter, 46 Ala. 118, wherein the Supreme Court of Alabama distinguished between a person in ambush and one in disguise. It is asserted that it was held in that opinion as follows:

“A person in disguise is one who is visible to the eye, but who cannot be identified, because of the dress or mask which he wears. A person in ambush or one who is concealed is one not visible to the eye, and may not be in disguise. ‘Disguise’ has reference solely to the dress or mask assumed by which the party cannot be recognized when near.”

Counsel are mistaken. The foregoing is an excerpt from the brief of counsel who represented the plaintiff in error in that case. It forms no part of the opinion of the court. In defining a person in disguise the language employed by the court falls far short of that used by counsel. We quote from the court’s opinion as follows:

“The evidence of the plaintiff, as stated and admitted, says the plaintiff’s husband was shot by some person in" ambush, or concealed in the bushes. The noun ‘ambush’ means: (1) The act of attacking an enemy unexpectedly from a concealed station; (2) a concealed station, where troops or enemies lie in wait to attack by surprise; an ambuscade; (3) troops posted in a concealed place, for attacking by surprise. The verb ‘ambush’ means to lie in wait; to surprise; to place in ambush. ‘Conceal’ means: (1) To hide, or withdraw from observation; (2) to withhold from utterance or declaration. The synonyms of ‘conceal’ are ‘to hide; disguise, dissemble, secrete.’ ‘To hide’ is generic; ‘conceal’ is • simply not to make known what we wish to secrete; ‘disguise’ or ‘dissemble’ is to conceal by assuming some false appearance; ‘to secrete’ is to hide in some place of secrecy. A man may conceal facts, disguise his sentiments, dissemble his feelings, or secrete stolen goods. The verb ‘disguise’ means: (1) To change the guise or appearance of, especially to conceal by an unusual dress; to hide by a counterfeit appearance; (2) to affect or change by liquor; to intoxicate. The noun ‘disguise’ means: (1) A dress or exterior put on to conceal or deceive; (2) artificial language or mariner, assumed for deception; (3) change of manner by drink; slight intoxication. This learning I derive from Mr. Webster, and I am satisfied with it. I can hardly conceive of things better distinctly marked and different than that of a person or persons in ambush, or concealed in the bushes, where a person so concealed lies in wait to attack by surprise, and a person or persons in disguise, or disguised by an unusual dress, or, in the language of the preamble to the act, to suppress secret organizations of men disguising themselves for the purpose of committing crimes and outrages, by the use of masks, hideous costumes, and other grotesque disguises.”

It is not held in that opinion that the disguise worn must be so perfect as to defeat identification. For the purpose of deception and concealment this man was wearing in the nighttime the apparel óf a woman, with a cloth wrapped around his face and head which partially concealed his features.

Whether or not a person is disguised within the meaning of the foregoing provisions of law must depend largely upon the facts of each particular case. It is impossible for the court to give any fixed definition that would apply to all the facts and circumstances of which the human mind might conceive. What might be a perfect disguise in the nighttime might be no disguise at all if employed or used in the daytime. There is no fixed standard by which we may be guided in passing upon a question such as this. ■However, it is our fixed opinion that this defendant was sufficiently disguised on this occasion, within the meaning of the third subdivision of section 2559, above quoted, as to authorize the jury to assess the punishment prescribed by that provision.

We hold, therefore, that the evidence is sufficient to sustain the conviction, and the judgment is accordingly ■ affirmed.

DOYLE, P. J., and ARMSTRONG, J., concur.


text:
    JIM NOEL v. STATE.
    No. A-2968.
    Opinion Filed August 17, 1918.
    (174 Pac. 293.)
    1. ROBBERY — Motion to Acquit — Evidence. Evidence examined, and held sufficient to sustain the material allegations of the indictment, and to authorize the court to overrule a motion to advise the jury to acquit the defendant.
    2. APPEAL AND ERROR — Sufficiency of Evidence — Accomplice's Testimony. Where an accomplice testifies that he jointly with the defendant robbed a bank, and there is positive testimony of one credible witness, who positively identifies the defendant as one of the robbers, this court will not disturb the judgment because the testimony of other witnesses as to the identity of the defendant conflicts with the testimony of the witness corroborating the accomplice. Such question of fact was for the determination of the jury.
    3. NEW TRIAL — Newly Discovered Evidence — Discretion of Court —Cumulative Evidence. A motion for new trial upon the ground of newly discovered evidence is addressed to the sound discretion, of the court. Where the evidence sought to be produced is purely cumulative, it will not be held to be a manifest abuse of discretion on the part of the trial court to overrule such motion, when, after an examination of the entire record, it is apparent the defendant had a fair and impartial trial in every respect.

      Appeal from District Court, MeCurtain County; C. E. Dudley, Judge.

    Jim Noel was convicted of the crime of conjoint- robbery, and his. punishment assessed at imprisonment in the state penitentiary for a term of ten years, and he appeals.
    Affirmed.
    Plaintiff in error, together with one Earl Holman, were jointly indicted for the crime of robbery committed by them on the 21st day of May, 1914, in that they did “unlawfully, willfully, and feloniously and wrongfully and by means of force and fear take from the possession of J. M; Beasley, and against his will, the sum of $1,800 lawful money of the United States.” This was a case of bank robbery committed prior to the time the special statute punishing such crime was enacted. ■
    Earl Holman, jointly indicted with the plaintiff in error, obtained a dismissal of his prosecution in' order that he might become a witness against Noel, and Holman' testified that he, together with Noel, robbed the bank of Millerton on the said 21st day of May, 1914; that they held up persons in the bank, by means of the use of pistols, between 1 and 2 o’clock in the afternoon; that there were three people in the bank at the time, one of whom was behind the counters, the other two being apparently customers of the bank; that after the robbery, they mounted their horses and rode back the way they had come from the north. They rode north about six or seven -miles to Little river, where they were overtaken as they were crossing said river and fired at by some members of a posse; that in getting out of the river on the other side Noel lost his hat, and Holman, who was carrying the money at the time, dropped it also near the place where Noel lost his hat; that they were not overtaken, but continued on in a northwesterly direction to their place of abode near the town of Corrinne, in Pushmataha county, a distance of about 40 miles from the scene of the robbery. At the time Holman testified he was a prisoner in the state penitentiary, having been previously convicted of larceny and robbery, and was then under sentence in two cases for a term of six years each. He admitted that the prosecution against him had been dismissed, and that he had promised to testify against his codefendant. The defense relied upon was an alibi, Noel claiming that on the afternoon of the 21st day of May, 1914, he attended the funeral of a boy by the name of Raines in the town of Spencerville, a distance of 35 miles northwest of Millerton, where the robbery occurred. In this he was supported by the testimony of three witnesses from Spencerville.

      John Cocke, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

(after stating the facts as above). It is first contended by counsel for plaintiff in error that the court erred in refusing to give a peremptory instruction to the jury to return a verdict of not guilty. In this connection it is contended that there is no showing in the record that any amount of money was taken from the person or the immediate presence of J. M. Beasley. We think the evidence in this respect is sufficient to have authorized the jury to reach the conclusion that the person-robbed was J. M. Beasley, the cashier of the bank of Mil-lerton. We quote from the record as follows:

L. D. Schoonmaker, the president of the bank, and the first witness introduced by the state, testified as follows.

“Q. What is your name? A. L. D. Schoonmaker. Q. What is your occupation? A. Banker. Q. Did you have any connection on or about the 22d day of May, 1914, with the Bank of Millerton? A. I was president of it. Q. Who was the cashier?" A. Mr. J. M. Beasley.”

And the witness for the defendant, C. 0. McPheeters, testified as follows:

“Q. Did they take any money there to your knowledge that day? A. Yes, sir. Q. What was done after you all held up your hands? A. After I held/them up, there was a small man passed Mr. Golf and I, and went down to the side where the cashier stays and threw down a long white sack, the kind generally used by merchants, that would hold about 160 pounds, I expect— Q. Did they put the money in that? A. Yes, sir. Q. What was done then? A. They told Mr. Beasley to do it up. Q. Well, did he tie it up? A. Yes, sir. Q. Then what was done? A. I believe he says, ‘Give it to me.’ Q. Then what was done? A. He come and marched us out in front of him. Q. Then what was done? A. They got on their horses and rode off, and we-walked down the street.”

This testimony shows, in substance, that J. M. Beasley was the cashier of the Bank of Millerton on the 21st day of May, 1914; that the bank was robbed on that day, and the money taken from the cashier, and the testimony of Messrs. Schoonmaker and McPheeters clearly shows that it was taken from Mr. Beasley, and identifies Mr. Beasley, who was robbed, as being the cashier of the bank and acting there at that.time, and it shows that Mr. Beasley at the command of one of the robbers put the money in a sack and tied it up and delivered it to the robber, and all this was done after the people in the bank were held up at the point of pistols. We hold, therefore, that the evidence is sufficient to show that the person robbed was J. M. Beasley, as alleged in the information.

It is also contended that testimony of the accomplice is not sufficiently corroborated. It is admitted in the brief of counsel for plaintiff in error that the witness L. D. Schoonmaker positively identified Jim Noel as one of the men passing his house on horseback immediately before the bank was robbed and that he was riding with another person in the direction of the bank, both carrying rifles, and they were traveling south and coming from the north on the road that leads toward Bismark, and that shortly thereafter, and after the bank was robbed, the same parties were seen rapidly riding back north, again along the same highway. The testimony of all of the witnesses is to the effect that the bank was robbed by two men who came from the north riding horses, and that they returned in the same direction. But it is contended that Schoon-maker’s testimony is directly in conflict with the testimony of several of the witnesses who were introduced by the defense, and therefore the preponderance of the evidence is in favor of the innocence of the defendant. Perhaps that would be so where the jury is bound to give weight to the testimony of the witnesses according to the number produced, but the statutes of this state provide that “questions of fact are to be decided by the jury.” Section 5873, Rev. Laws 1910. Schoonmaker’s testimony, together, with other circumstances contained in the record, if believed by the jury, tends to connect the defendant, Jim Noel, with the commission of the robbery, and in the opinion of the court is sufficient corroboration under our statute to authorize a conviction. True, the testimony is strongly in' conflict with that of other witnesses, but, as heretofore indicated, it was up to the jury to reconcile these conflicts, if possible, and, if not, then the jury must determine whom to believe and whom not to believe; and, if there is competent evidence in the record such as would authorize a conviction, this court is not at liberty to substitute its opinion for that of the jury on any question involving only the sufficiency of the evidence. The weight of the evidence and its convincing effect was for the jury and not for the court. In criminal cases the effect which the evidence shall have as tending to establish the guilt of the accused is for the jury. If they find it insufficient to establish guilt, there is no power in the court to set aside their verdict, though the trial judge might be convinced that the verdict' was against, not only the w'eight of the evidence, but against all the evidence. On the other hand, if there be evidence which fairly tends to prove the guilt of the defendant, and the jury find the guilt, the court cannot properly set aside such verdict because he may entertain doubts as to its sufficiency to establish such guilt. See Harrison v. State, 10 Okla. Cr. 210, 135 Pac. 948; Benson v. State, 10 Okla. Cr. 16, 133 Pac. 271.

It is also contended that the court erred in denying defendant’s motion for a new trial upon the ground of newly discovered evidence. It is contended in this motion that after his conviction the defendant discovered eight more witnesses in the town of Spencervillé who would testify that he was present at the funeral of young Raines on the 21st day of May, 1914. It is admitted that this evidence is cumulative, but it is contended that a new trial should be granted for the reason that these witnesses would give different reasons for knowing that Raines’ funeral was on the 21st day of May, 1914, and that the defendant was present on that occasion. It has been repeatedly held by the courts of this state that a new trial will not be granted on the ground of newly discovered evidence where the evidence is merely cumulative or is for the purpose of impeaching witnesses introduced by the state. The witnesses who testified for the defendant in this trial were positive as to the date and the occasion upon which the defendant was present in Spencerville. The testimony of the other witnesses for which a new trial was asked could not be more conclusive upon these propositions. The fact that they may give different and other reasons for knowing such fact would not change the nature of their testimony. It would only tend to establish the alibi, which was the defense relied upon in this trial. The testimony, therefore, was purely cumulative. None of the witnesses who testified to this alibi were sought to be impeached by the state except as their evidence conflicted with that of the state’s witnesses.

These matters that are urged especially as grounds for reversal of this judgment are matters which might have some weight as grounds for executive clemency, but are not reasons why an appellate court should reverse a judgment of conviction. An unlimited line of authorities of this and other appellate courts are clearly to the contrary.

A motion for new trial upon the ground of newly discovered evidence is addressed to the sound discretion of the trial court, and a ruling thereon will not be disturbed except for an abuse of discretion; the presumption being that the discretion was properly exercised. The evidence sought to be produced being purely cumulative, we cannot hold that it was a manifest abuse of discretion on the part of the trial court to overrule this motion for new trial on the ground' of newly discovered evidence. Howey v. State, 9 Okla. Cr. 453, 132 Pac. 499; Harper v. State, 7 Okla. Cr. 581, 124 Pac. 1116; Drew v. State, 6 Okla. Cr. 348, 118 Pac. 677.

We have examined the instructions given by the court, to none of which, so far as the record shows, was an objection made or exception taken. The instructions clearly state the law of the case and are impartial. Likewise were the rulings of the trial court on the admission and exclusion of evidence. It appears that this defendant had a fair and impartial trial in every respect. The matters urged by counsel for plaintiff in error for a- reversal of the judgment of conviction are ably presented, but are not such as would justify this court in reversing the conviction where the showing is that a fair and impartial trial was granted this defendant throughout the entire proceeding.

The judgment of conviction is therefore affirmed.

DOYLE, P. J., concurs; ARMSTRONG, J., not participating.


text:
    E. S. FAIN v. STATE.
    No. A-2759.
    Opinion Filed August 17, 1918.
    (174 Pac. 296.)
    1. PUNISHMENT — Assessment by Jury — Time. Where the conviction is for manslaughter in the first degree, and the jury has returned its verdict of guilty into court, including in said verdict the statement that the punishment cannot be agreed upon, and such verdict is announced in open court, it is then too late for the defendant to request that the jury assess the punishment.
    2. APPEAL AND ERROR — Assignments of Error — Record. Assignments of error must he clearly supported by the record ; otherwise this court may not consider same..
    3. APPEAL AND ERROR — Exclusion of Evidence — Record. Where it is alleged that the court refused to admit certain written evidence over the objection and exception of the defendant, it is necessary that such evidence be incorporated in the record, either as an exhibit, or by a showing that an offer was made to prove thereby certain- facts material 'to the issues, and where this is not done, -but the record is entirely silent as to the contents of such writing, this court will not disturb a judgment of conviction upon the ground that such written evidence was improperly rejected.
    . Appeal from District Court, Sequoyah County; John H. Pitchford, Judge.

    E. S. Fain was convicted of manslaughter in the first degree, and his punishment fixed at imprisonment in the state penitentiary for a period of ten years, and he appeals.
    Affirmed.

      Frye & Frye, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

It is contended that the court erred in refusing to require the jury to assess the punishment upon a request of the defendant. Sections 5933 and 5934, Rev. Laws 1910, are as follows:

“In all cases of a verdict of conviction for any offense against any of the laws of the State of Oklahoma, the jury may, and shall upon the request of the defendant, assess and declare the punishment in their verdict within the limitations fixed by law, and the court shall render a judgment according to such verdict, except as hereinafter provided.”
“Where the jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, the court shall assess and declare the punishment- and render judgment accordingly.”

The record discloses that there was no request made to require the jury to assess the punishment until after the following verdict was returned:

“We, the jury drawn and impaneled and sworn in the above-entitled cause, do upon our oaths find defendant, E. S. Fain, guilty of manslaughter in the first degree; we can’t agree on the punishment, as charged in the information herein.”

The request made of the court that the jury assess the punishment came too late. It is clear : (1) That the request must come before the verdict is returned; (2) that the exception named in section 5934 permits the jury to return a general verdict of guilty, and that they cannot agree upon the punishment, if no request that the jury assess the punishment is made before the verdict is returned. The court, then, was authorized to pronounce judgment upon the verdict as returned. In Blair v. State, 4 Okla. Cr. 359, 111 Pac. 1003, in construing the identical statutes, this court said:

“The jury returned a verdict finding the defendant guilty of manslaughter in the first degree, but not fixing the punishment. Upon this verdict the court sentenced the defendant to be imprisoned in the state penitentiary at hard labor for a term of 15 years. And it is urged that, inasmuch as the jury by its verdict assessed no punishment for the offense, the court could impose none. But sections 1 and 2 of an act of the Legislature approved May 12, 1908 (Snyder’s Comp. Laws, secs. 2028, 2029), provide as follows:
“ ‘Sec. 1. In all cases of a verdict of conviction for any offense against any of the laws of the State of Oklahoma, the jury may and shall upon request of the defendant, assess and declare the punishment in their verdict and the court shall render a judgment according to such verdict, except as hereinafter provided.’
“ ‘Sec. 2. Where the jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, the court shall assess and declare the punishment and render the judgment accordingly.’
“The jury having failed to agree upon the punishment to be inflicted, or at least not having declared the same in their verdict, it therefore became the duty of the court under the statute to ‘assess and declare the punishment and render judgment accordingly,’ and the court committed no error in so doing.”

In the Blair Case, as in this, no request was made of the court before the verdict that the jury assess the punishment, yet it was held that the trial court had jurisdiction to pronounce judgment upon the verdict there rendered. We see no ambiguity in the statutes aforesaid. In order that the jury may assess the punishment in the verdict at the request of the defendant, that request must come before the verdict is rendered; otherwise it is too late. There is no merit in this contehtion.

The cases of Oelke v. State, 10 Okla. Cr. 51, 133 Pac. 1140, and McSpadden v. State, 8 Okla. Cr. 490, 129 Pac. 72, are not in point. Those eases are distinguishable from this, in that the request was made to require the jury to assess the punishment before the jury retired to consider the verdict, and the error there pointed out was in receiving a verdict that did not assess the punishment or state the inability of the jury to agree upon the same.

In Dew v. State, 8 Okla. Cr. 57, 126 Pac. 592, the court refused to instruct the jury to assess the punishment in the verdict, although the request was made before the jury retired to consider the verdict. This was held to be error, but the proceedings in this case are entirely different from either of said cases, as herein indicated.

Certainly it was not intended by the foregoing enactment to permit a person tried for crime, where the jury unanimously agreed upon guilt, to entirely escape punishment solely because the jury was unable to agree on the extent thereof. The exception contained in section 5934, supra, clearly indicates the contrary intention.

It is also contended that the court erred in admitting the testimony of certain witnesses relative to the reputation of deceased for quietude and as an inoffensive man, for the reason that such witnesses did not show themselves qualified to testify. This issue was properly raised in the case, and it is only necessary to quote from the record of the testimony of one of the witnesses in order to elucidate the question, as the record concerning the testimony of the other witnesses is substantially the same as that concerning G. W. Frazier’s, which we quote as follows:

“Q. What is your name? A. G. W. Frazier. Q. Did you know Lloyd Johns in his lifetime? A. Yes, sir; a while. Q. How long did you know him? A. About two years, I reckon. Q. Are you acquainted in the neighborhood in which he lived for that time? A. Well, most of ' the time; yes, sir. Q. I will ask you if you know his general reputation during that time in the community there as to being a peaceable, harmless, and inoffensive man? A. He was while he lived around me. (The defendant objects to the answer, and asks that it be .stricken for the reason that it is not responsive and is incompetent.)
“The Court: The question was, Are you acquainted with his general reputation? — what the people generally say in the community where he lived. Now, answer that question yes or no.
“Mr. Allen:- Q. Answer yes or no. Did you know his general reputation in the community in which he lived for being a peaceable, harmless, and inoffensive man? A. Yes, sir; he was. Q. You know his reputation? A. Yes, sir. Q. Was that reputation good or bal? A. It was good as far as I ever heard.
“Mr. Frye: Q. You say it was good as far as you know ? A. It was good as far as I ever heard.
“Mr. Frye: We renew our objection, and move to -strike this testimony, for the reason that he is testifying from his own' knowledge, and not the reputation he bore here in the community. (The objection and motion are •overruled by the court, to which the defendant excepts.)”

The objection urged as stated is clearly without merit, beca,use it is apparent that these witnesses were testifying to knowledge of the reputation of the deceased, and not as to personal acquaintance with the man himself. We are of the opinion, therefore, that the record does not support the grounds upon which these various assignments of error are based.

It is also contended that the court erred in refusing to admit in evidence a certain letter alleged to have been written by the deceased to the defendant’s wife a short time before the.homicide. The record on this subject is as follows: • •

“Q. What is your name? A. Fain. Q. Have you been sworn as a witness in this case? A. Yes, sir. Q. You are the wife of the defendant, Lige Fain? A. Yes, sir.- Q. I will ask you, Mrs. Fain, if a few days prior to the killing you received a letter through the mails? A. Yes, sir. Q. (hands her a paper). You may look at that. A. Yes, sir; that is the one. Q. Is that' what was. in the envelope, the letter? A. Yes, sir, I believe it is. Q. Well, do you know it is? A. Yes, sir, I know it is.
“Mr. Frye: We desire to introduce this letter in testimony.
“Mr. Allen: We object to the introduction of that in evidence, for the reason that it is incompetent, irrelevant, and immaterial and inadmissible as evidence. (The objection is sustained by the court, to which the defendant excepts.) * * * ' Q. What is your name? A. Martha Fain. Q. You are the same Mrs. Fain that was on the stand yesterday evening in this cause? A. Yes, sir. Q. The letter that you say you received through the mail, please tell the jury where it was the morning Lige Fain killed Lloyd Johns? A. Lige had it in his pocket. Q. Your husband had it? A. Yes, sir.”

The contents of the letter are nowhere shown by the record, nor was any offer made by counsel for defendant to prove any particular facts by the introduction of such evidence. It is impossible, therefore, to determine the merits of this controversy. The burden was upon the plaintiff in error to show that the refusal of the court to admit this letter operated to his prejudice, and he should have offered it in evidence and had it incorporated in the record, or made an offer to prove certain material facts thereby, had it been desired that this- court pass upon the question here raised. In the absence of any such showing, the judgment of conviction will not be disturbed on such ground.

After a full and fair consideration of the evidence in the case, we are clearly of the opinion that the sentence pronounced is not excessive, arid that there is. no prejudicial error such as would authorize this court to reverse the judgment, and the same is therefore affirmed.

DOYLE, P. J., and ARMSTRONG, J., concur.


text:
    ROBERT TITTLE v. STATE.
    No. A-2743.
    Opinion Filed August 17, 1918.
    (174 Pac. 295.)
    APPEAL AND ERROR — Review—Sufficiency of Evidence. A judgment of conviction will not be reversed on appeal on the ground that the finding of the jury is contrary to the weight of-the evidence, when there is competent proof tending reasonably to support the finding of the jury. The weight of the evidence, as well as the ■ credibility of the witnesses, are problems to be determined by the jury.

      Appeal from District Court, Craig County; Preston S. Davis, Judge.

    Robert Tittle was convicted of robbery, and he appeals. .
    Affirmed.

      Clyde McGary, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Robert Tittle, was convicted at the November, 1916, term of the district court of Craig county on a charge of robbery, and his punishment fixed- at imprisonment in the state penitentiary for a term of ten years.

The information charges him with robbing the station agent of the Missouri, Kansas & Texas Railroad Company at Bluejacket in. Craig county in September, 1914.

The proof shows that the robbery occurred about 9:30 p. m. on September 9, 1914. The ticket agent and another witness identified the plaintiff in error. Testimony offered in his behalf tended to show that he was not the party who committed the robbery. Considerable testimony of this character was introduced. The jury, however, who saw and heard the witnesses testify and who lived in the same community, accepted the testimony of the station agent and the witness who was in the station at the time, and found the accused guilty.

There is no complaint in the brief against any ruling of the court. In fact, no question of law is raised. Counsel argues that the jury gave no consideration to the evidence offered on behalf of the plaintiff in error, and no reason appears’ to them why his witnesses should not be believed, and he argues further that this being a felony case, and one carrying severe punishment, the judgment should not be allowed to stand. The law, however, does not support the argument of counsel. The only issue was whether or not Robert Tittle robbed the station agent of the Missouri, Kansas & Texas Railroad Company in the manner and form charged in the information. Two competent witnesses testified that he did. The plaintiff in error says that he did not. Some witnesses say that he was at a different place all the time mentioned. There is considerable variance, however, as to the time when this robbery occurred. The jury, whose judgment is final on controverted questions of fact, found him guilty, and there is no legal ground upon which to base a reversal of .the judgment.

There being no error pf law pointed out, and none-appearing from an examination of the record, the judgment is affirmed.

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


text:
    ANGELO GOLPI v. STATE.
    No. A-2706.
    Opinion Filed August 20, 1918.
    (174 Pac. 288.)
    1. TRIAL — Unlawful'Transportation of Liquor — Defenses—instruction. (a) A person wbo is charged with unlawfully conveying intoxicating liquor from one place within this state to another place therein and within the jurisdiction of the trial court, and who, as his defense to the charge, offers testimony to establish the fact that he acted innocently and without knowledge that the packages conveyed contained intoxicating liquor, and without sufficient information to put him on notice to this effect, is entitled, to have his defense submitted to the jury by proper instructions-of the court.
    2. INTOXICATING LIQUORS — Unlawful Transportation — Intent. (b) A person who conveys a package from one place in this state to another place therein, which package contains intoxicating liquor of which he has no knowledge and no information sufficient to put a reasonable man on inquiry, is not subject to the punishment imposed by the statute for unlawfully conveying intoxicating liquor from one place in this state to another place-therein.

      Appeal from County Court, Johnston County; Chas. S. Fenwick, Judge.

    Angelo Golpi was convicted of violating the prohibitory liquor law, and he appeals. .
    Reversed and remanded..

      (a-eorge Trice, for plaintiff in error. .-

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error; Angelo Golpi, was convicted at the February, 1915, term of the county court of Johnston county, on a charge of unlawfully conveying intoxicating liquor from one place in said county to another place.therein, and his punishment fixed at a fine of $50 and imprisonment in the county jail for a period of 30 days.

The record discloses the fact that Golpi is a native of Spain; that, in company with an Austrian named Rege and an Italian named Simeon, he left Denison, Tex., on or about the 7th day of March, en route to Coalgate, Okla. The plaintiff in error, himself, lived at Lehigh, but was induced by the Austrian, Rege, to go on the Frisco with them to Randolph and on the Rock Island from Randolph to Coalgate, and thence on the Katy or Oklahoma Central to Lehigh. Six packages, all of which contained whisky, were carried by these parties. At Randolph a deputy sheriff concluded the packages contained whisky and telephoned the sheriff to meet the train at Tishomingo. The three persons were arrested and the packages were seized. An éxamination disclosed the fact that they contained whisky. The Italian, Simeon, and the Austrian, Rege, pleaded guilty to a charge of unlawfully conveying intoxicating liquor and served a jail sentence. They admitted ownership of the packages. The plaintiff in error entered a plea of not guilty and went to trial. In his defense he testified that the Austrian asked him to assist him with the packages; that he did not know they contained whisky and had nothing whatever to do with the ownership thereof and had no intention of violating the statute; that these parties, Rege and Simeon, were old acquaintances whom he had not. seen for some time and were not bootleggers when they were living near him, and he did not know that they were bootleggers at the time, and had no reason to suspect them.

The trial court was requested to give the following instruction:

“Gentlemen of the jury, at the request of the defendant, I instruct you as follows: That before you would be authorized to convict the defendant in this causé, you must believe from the evidence that the defendant knowingly participated in the offense with which he is charged, and unless you find from the evidence, beyond a reasonable doubt, that the defendant, Angelo Golpi, in assisting other parties in carrying the whisky about which testimony has been given knew that he was assisting in the violation of the law, and unless you so believe beyond a reasonable doubt, you should acquit the defendant, and say by your verdict, ‘Not guilty.’ ”

The purpose of this requested instruction was to allow the plaintiff in error the advantage of the defense that in good faith he assisted these men, whom he knew as friends and whom he did not know were violators of the law, in carrying their packages, without any knowledge of their contents and without suspecting that they contained intoxicating liquors. The court refused to give the instruction, and proper exceptions were saved.

The question presented resolves itself into the proposition of whether or not a person who is charged with violating the prohibitory liquor law, in that he conveyed intoxicating liquor from one place in a county to another place therein, can avail himself of the defense that he did so innocently. We are of opinion that this is a good defense and that the instruction should have been given. If the instruction had been given and the jury had found the plaintiff in error guilty, he would not be entitled to a new trial. Having been denied the right to have the jury say that he acted in good faith and without criminal purpose, he is entitled to a new trial.

The judgment is reversed, and the cause remanded.

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


author: PER CURIAM.

text:
    CHARLEY JOHNSON v. STATE.
    No. A-2962.
    Opinion Filed August 24, 1918.
    (174 Pac. 295.)
    INTOXICATING LIQUORS — Unlawful Possession — Sufficiency of Evidence. Evidence, in a prosecution for the unlawful possession of intoxicating liquors, held sufficient to sustain a conviction.

      Appeal from County Court, Osage County; Elmer J. Black, Judge.

    Charley Johnson was convicted of the crime of unlawful possession of- intoxicating liquors, and his punishment fixed at imprisonment in the county jail for 30 days and a fine of $50, and he appeals.
    Affirmed.

      Hargis & Griffin, for plaintiff in error.

      S. P. Freeling, Atty. Gen., R. McMillan, Asst. Atty. Gen., Corbett Cornett, Có. Atty., and A. R. Museller, Asst. Co. Atty., for the State.
   PER CURIAM.

Charley Johnson was convicted in the county court of Osage county of the crime of unlawful possession of intoxicating liquors, and sentenced to serve 30 days in the county jail and pay a fine of $50, the minimum punishment prescribed by the statute for .such offense.

The evidence discloses on the part of the state the possession by the’ defendant of 35 pints of whisky buried in a barrel in his calf lot, about 30 yards from his house in Osage county, Okla. The barrel containing this whisky was thoroughly covered with dirt and had a sort of trapdoor or opening in the top side of the barrel big enough for a person to reach in through the opening'and obtain the whisky. Several officers armed with a search warrant made the discovery of this whisky and arrested the defendant, who was living at that time on the premises. There was no evidence introduced on behalf of the defendant. Counsel rely upon the insufficiency of the state’s proof and upon certain instructions which it is contended were prejudicial and misleading.

It is the opinion of the court that the evidence is amply sufficient to sustain the judgment. The instructions of the court, when considered as a whole, sufficiently covered the law of the case and are as favorable to the defendant as the evidence warranted.

The judgment is affirmed.


text:
    BROWNLOW NEWTON v. STATE.
    No. A-2961.
    Opinion Filed August 24, 1918.
    (174 Pac. 289.)
    1. APPEAL AND ERROR — Convictions—Reversal. It is not the policy of the Criminal Court of Appeals to set aside verdicts or judgments of conviction where they are sustained by credible evidence, though there be a sharp conflict between the testimony of the witnesses for the state and for defendant.

      2. INTOXICATING LIQUORS* — Unlawful Sales — Sufficiency of Evidence. Evidence in a prosecution for the unlawful sale of intoxicating liquors held insufficient to sustain a conviction.
    3. WITNESSES — Corroboration of Impeached Witness.' Where the testimony of the prosecuting witnesses had been, thoroughly impeached, the state not attempting to show that their reputation for truth and veracity was good, the admission of evidence to bolster the testimony of one of the prosecuting witnesses was prejudicial to defendant.

      Appeal from County Court, Kiowa County; J. S. Carpenter, Judge.

    Brownlow Newton was convicted .of selling intoxicating liquor, and he appeals.
    Reversed.

      J. F. Thomas, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the county court of Kiowa county, wherein one Brownlow Newton was convicted of selling whisky to one Lige Everett, and his punishment fixed at imprisonment in the county jail for 30 days and a fine of $50.

Numerous errors are assigned as ground for reversal of the judgment. The conviction was based upon the uncorroborated testimony of Lige Everett, and his brother, A. C. Everett, and both of these witnesses were impeached as to truth and veracity by numerous of their neighbors who had known them for many years. The defendant was also proven to be a farmer whose reputation as an honest, law-abiding citizen was good.

After the defendant had shattered the reputation for truth and veracity of both of the prosecuting witnesses, the state was permitted, over the objection of counsel for the defendant, to place the father of the prosecuting witnesses upon the stand to testify to the fact that his son, Lige Everett, had been addicted to drinking whisky, and that he had persuaded him to turn in several parties in that neighborhood whom Lige said had sold him whisky at various times. This evidence was admitted 'solely for the purpose of bolstering the testimony given by Lige, who was thoroughly impeached. The verdict was not the unanimous opinion of the entire jury, but was signed by only five of them. There was no attempt made to show upon the part of the state that the reputation of either of the boys for truth and veracity was good. There was also evidence in the record to show that there was considerable animosity against Newton on the part of the Everetts, and it was admitted by the prosecuting witnesses that they were glad of an opportunity to prosecute Newton.

It is not the policy of this court to set aside verdicts of juries or judgments of conviction where the same are sustained by credible evidence, even though there may be a sharp conflict between the testimony of the state’s witnesses and those for the defendant, but the material evidence in this case to sustain this conviction appears to be entirely incredible and unworthy of belief. The defendant absolutely denied any connection with the sale of whisky at the time and on the occasion testified to by either of the Everett boys, or on any other occasion. He had never before been charged with crime, had been a farmer living in- that community for years,, and had, as heretofore stated, borne a good reputation as a law-abiding citizen. In the face of all these facts, and in view of what we consider the introduction of prejudicial evidence against him, we think it would be a miscarriage of justice to permit this conviction to stand.

The judgment is therefore reversed.