source: Caselaw Access Project

author: POWELL, J.

license: Public Domain

text:
    MATTHEWS v. STATE.

      No. A-11210.
    May 3, 1950.
    (218 P. 2d 393.)

      Harry Seaton, Public Defender, Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for plaintiff in error.
   POWELL, J.

The defendant, Dero Matthews, was charged by information filed in the district court of Tulsa county with the crime of attempted first degree rape, second offense. He was tried before a jury on October 1, 1948, found guilty of the charge, and his punishment assessed at 60 years in the State Penitentiary.

Appeal has been perfected to this court. Counsel for defendant argues that there was not sufficient evidence to convict the defendant of the charge, but that the evidence was only sufficient to convict him of the lesser and included offense of sexual abuse of a female child, second offense.

It was stipulated by and between the attorney for the defendant and the attorneys for the state prior to trial, and on June 10, 1948, that on September 22, 1947, the defendant was convicted in the district court of Oklahoma county of unlawfully abusing a female child, sexually, and was in that case sentenced to serve a term of one year in the State Penitentiary at McAlester.

The victim of this case was a young girl, Juanita Louise Druge. The act was alleged to have occurred on Sunday, the 25th day of April, 1948. We regret the necessity for reciting, the evidence, but the nature of the charge, the evidence itself, and the severity of the punishment require the most careful consideration. The child testified that at the time of the tragedy she was living with her mother on Main street, Tulsa; that she was riding around on her scooter and that down at the corner at the Rexall Drug Store, which was on the block across the street from her grandmother’s home, the defendant accosted her, asked her name, the grade she was in, and what church she attended, and told her that he wanted to show her something; that she told the man she wanted to play and prepared to go, and he stated to her that he also wanted to play; that she started around the block on her scooter and he started around the other way, and that they next met in the middle of the block; that defendant pointed out some church steps by the side leading off the street; that she and defendant sat down on the steps side by side; that it was about 5 o’clock in the afternoon; that defendant took his privates out; that she saw them; that he tried to put his privates in her, though she stated that he did not pull her over on him or get on her, and she did not state how he managed this. She stated that it started to sprinkle rain; she got up and ran down the steps and went across the street to her grandmother’s, left her scooter, and got her raincoat and started to go to her mother’s place and it had stopped sprinkling and the defendant was on the porch of a vacant house across the street from her grandmother’s and that the defendant beckoned for her to come over and she did, and he showed her an open window and wanted her to get in; that she attempted to duck under his arms and get away but he put her through the window, took her hand and led her in the kitchen and made her lie down on the floor, and that he got on top of her and put his private parts inside hers, but at first did not take off her panties, but did after a while; that it hurt when he put his weight on her, but did not hurt her much when he put his private parts in her; “that after a while he wondered why something was not working, or something, and went to the bathroom.” She went with him and they came back downstairs and he again laid down on top of her; that she felt something against her private parts and that he put his private parts inside hers. That she then after a time told the defendant that she wanted to get up and go see what time it was, and he asked her to come back if it was not time for her to go. On cross-examination she stated that she had never seen a man’s private parts prior to that day, and that they looked “long and hairy.” She testified that she did not understand what an erection was.

On re-direct examination witness identified a dress, rain coat and panties as those worn by her at the time of the acts of defendant related, and that the dirt and black marks got on them on account of the dirty floor defendant laid her on.

Dr. Monty V. Stanley testified that he was a physician, and that on the evening of April 25, 1948, at 6:15, he examined Juanita Louise Druge at the city jail at the request of the policewoman on the Morals Squad. He testified, in part, as follows:

“Q. State what your examination consisted of and what it shows? A. I examined the girl vaginally. That is, externally, and I found an area of redness on the inner left lip of the vagina. Q. The left lip of the vagina? A. Yes, sir, in the left upper portion. Q. You could not determine, could you, what caused that redness? A. No, sir. Q. Did that indicate to you something or another had been rubbed up against that particular portion of the little girl’s anatomy? A. It could have been due to concentrated urine or it could have been a skin infection. Q. Could it also have been caused by a man’s penis being rubbed up against there? A. Yes, sir.”

. On cross-examination he testified, in part:

“Q. From your examination, did the examination disclose whether there had been a penetration or not? A. There was no penetration. Q. This redness you saw there, might that not be caused by her clothing, rubbing against her private parts? A. I doubt the clothing*could have caused it. Q. Could they have caused it? A. Unless the clothes got underneath there. Q. I don’t know what it shpws, but I am inquiring whether or not it could have been caused from clothes. * * * A. Yes, sir. Q. And a number of other things? A. Yes, sir. Q. From your examination you could not determine what the cause of it was? A. No, sir.”

Mrs. Florence Druge testified that she was the mother of Juanita Louise Druge; that on Sunday, April 25, 1948, they lived' at the Longfellow Apartments, 1019 South Main, Tulsa, that the Rexall Drug Store was about one-half a block distant; that the child’s grandmother lived in the Tulsa Apartments, 9 West Ninth; that at about 6 o’clock in the afternoon of the day in question her daughter came in their apartment and she noticed that her raincoat was quite dirty and that when her daughter took it off, she noticed that her dress was also dirty; that she questioned her as to the cause and was told by her that a man took her in the house where the Crows formerly lived, which was right across the street from 9 West Ninth; that witness immediately took the child and began a search for the man; that she went up to the old house and then started back home and just as they got across the street from the apartment, her child said: “That is the man.” She then identified the defendant as being the man pointed out by her daughter. The mother stopped the defendant and asked him whether he accosted her daughter and he said that he only spoke to her. She further testified that some of her neighbors talked with defendant until she got the police; that she thereafter went to the police station to have the child examined by Dr. Stanley.

Ray Page testified that he was a member of the Tulsa Police Department and that on April 25, 1948, he, after call, arrested the defendant at the corner of Eleventh and Main, Tulsa.

There was evidence that defendant was discharged from the penitentiary at McAlester three days prior to the date of the acts charged in the within case.

The ' court then recited to the jury the stipulation of the state and the defendant, theretofore entered into, concerning the previous conviction of the defendant of unlawfully abusing a female child sexually.

The defendant did not testify, and offered no evidence.

Counsel for defendant sums up his argument as follows:

“Under the law as we understand it, where, as in this case, the man had every opportunity that there was to carnally know the prosecutrix, but did not, that this does not constitute either attempted first degree rape or assault with intent to commit rape. The most it could be, and we say very frankly that in our opinion the jury might well have found that the defendant was guilty of sexual abuse of a female child.”

Counsel, among other cases, cites the case of Teagarden v. State, 33 Okla. Cr. 394, 244 P. 63, second syllabus :

“Existence of specific intent to have carnal knowledge is essential to the offense of assault with intent to commit rape, and it is the province of the jury to determine whether it existed in defendant’s mind when he committed the assault.”

We approve the principle of law announced in the case cited.

Here it was necessary to establish intent to rape and an actual effort to carry that purpose into execution, and it was necessary to establish these elements beyond a reasonable doubt. Thomas v. State, 68 Okla. Cr. 1, 95 P. 2d 658; Temple v. State, 71 Okla. Cr. 301, 111 P. 2d 524. In the Thomas case this court recognized that every laying on of hands upon a female under the age of consent, even though improper, does not necessarily imply an intent to have sexual intercourse, and that indecent liberties may be taken with a child without any such intent. But the establishment of the necessary element oftentimes must be gathered solely from accused’s conduct, the age of the female, time and place of the assault, and other circumstances attendant' upon the occurrence. As stated in Brown v. State, 121 Ala. 9, 25 So. 744, and approved in State v. Owens, 26 N.D. 329, 144 N.W 439:

“It is seldom that a case can be found where the court can, as a matter of law, determine from the evidence that the intent to ravish did or did not exist. Where the intent rests in inference to be deduced from the facts proven, its existence or nonexistence must be submitted to the jury for their determination.”

In the within case, while the testimony of the child that the defendant “put his private parts in my private parts” might ordinarily imply that there was penetration of the vagina on past the hymen, there is not sufficient evidence in this case to so conclude, because the examining physician testified that there was “no penetration.” And it is evident that he meant no penetration of the vagina proper. He did not testify as to whether there was a hymen or not, and he stated that he did not make he found an area of redness , on the inner left lip of the an examination internally. He did testify, however, that vagnia, the evidence not being too definite whether labium majus or labium minus, though by the term “inner left lip” we conclude that he meant labium minus. But at all events, this constituted evidence sufficient for the consideration of the jury in corroboration of the testimony of the victim that she felt defendant’s privates pressing against hers and that he put his privates inside hers. See “Legal Anatomy and Surgery” by Malloy, p. 656 (Cal-lighan & Co.), and “Legal Medicine and Toxicology”, by Emerson, chapter on Rape (D. Appleton & Co.). If the jury believed this evidence intent necessarily was to be implied.

Of importance in the jury’s determination, was the evidence that the examination was made but a few minutes after the alleged act, the soiled garments corroborating the child’s testimony that the defendant placed her on the floor of the old house, the admission of the defendant that he had spoken to the child, and his being located in the vicinity of the old house only a few minutes after the alleged act. This evidence, together with the other circumstances recited, constituted sufficient evidence for submission of the case to the jury.

The argument of counsel that the fact that defendant did not force entrance to the vagina proper when he might have, disproves intent on defendant’s part to rape, and that at most demonstrates that he could be guilty only of the lesser crime of sexual abuse of a female child, is not sound, because under the law in this state, one may be guilty of the crime of rape by penetrating the outer part of the female organ and without rupture of the hymen. By statute, Tit. 21 O.S. 1941 § 1113, any penetration, however slight, is sufficient to constitute the crime of rape. Swearingen v. State, 31 Okla. Cr. 66, 237 P. 135; Hancock v. State, 90 Okla. Cr. 69, 210 P. 2d 372; State v. Pollock, 57 Ariz. 415, 114 P. 2d 249.

Such being the law in this jurisdiction it matters not that the defendant refrained from further penetration. Intent may be implied as a matter of law, where there is the slightest penetration. Defendant may have desisted not from any consideration of the child’s welfare, or change of heart, but fearing the pain might cause the child to cry out and lead to discovery, or this method may have been the most satisfactory to him. The books are full of case histories of perverts who gain sexual satisfaction in ways anything but orthodox with normal people. But at all events, the fact of incomplete penetration is of no significance, the evidence being, such, if believed, to show penetration sufficient under the statute. The defendant, of course, might have been charged with the crime of rape. The county attorney saw fit to file the lesser charge, feeling, no doubt, that under the evidence he stood a better chance of obtaining a conviction. This decision was within his discretion, and he apparently acted wisely. Wilson v. State, 89 Okla. Cr. 421, 209 P. 2d 512.

The evidence in this case, therefore, was sufficient for submission of the case to the jury, and the jury decided the issues against the defendant.

We have examined the instructions, which include one covering the contention of counsel for defendant as to the question of the lesser offense of sexual abuse of a female child, and we find nothing in the record to justify this court in reversing the case, or modifying the verdict and judgment entered.

The case is affirmed.

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


author: BRETT, J.

text:
    McCARTHY v. STATE.
    No. A-11117.
    May 10, 1950.
    (218 P. 2d 397.)

      Irvine E. Ungerman, Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

Harry McCarthy, defendant below, was charged in the district court of Tulsa county, Okla., with the offense of unlawful possession of intoxicating liquor, second offense, on August 27, 1947. He waived a jury, was tried by the court, convicted and sentenced to 90 days imprisonment and to pay a fine of $250.

This prosecution was predicated upon evidence obtained under and by virtue of a search warrant executed upon the home and premises of the defendant, and as a result of which the officers discovered 16 four-fifths gallons of tax-paid rum. When the case came on for trial on February 19, 1948, the defendant interposed and urged a motion to suppress the evidence. As grounds therefor he attacked the validity of the search warrant under which the search was made and the evidence obtained. In support of the motion to suppress, the defendant offered evidence to show that the search warrant was inadequate in not describing the premises with that particularity required by law,- and urged that it was what it termed in the law a “blanket search warrant”. The pertinent part of the search warrant reads as follows, to wit:

“That said intoxicating liquors are being disposed of and kept by one John Doe, whose real name is unknown to informant, and Harry McCarthy, in the manner aforesaid, on the following described premises, situated in Tulsa county, Okla., within said county and state, to wit: A brick house, approximately 7 rooms, and a 1 story brick and frame building used as a garage and servants quarters, located on a tract of land described as follows : Beginning 685 ft. S. and 25 ft. E. of N.W. corner of N.E. North East, thence- S. 305 ft., East 470 ft., North 305 ft., West 470 ft. to point of beginning and beginning 990 ft. S. and 25 ft. E. of N.W. corner of N.E. N.E. thence S. 275 ft. East 470 ft. N. 275 ft. W. 47 ft. to point of beginning, containing 6.28 acres more or less in Sec. 12-19N-13E, Tulsa County, Oklahoma, * * *”

It will not be necessary to review all of the evidence offered by the defendant. It is sufficient to note that it established that the search warrant was served on Harry McCarthy at the place of the search when the raid was made. It further appears that the premises searched, according to the evidence of the defendant’s wife, Mrs. McCarthy, was a brick house which the evidence shows to have been from 4 to 6 rooms in size and a brick and frame garage wherein the tax-paid rum was found. The evidence in support of the motion to suppress further disclosed that on the premises as described in the warrant there was another 4-room frame house occupied by the Robert Newtons. This evidence formed the basis for the contention that the warrant was a blanket warrant, and therefore invalid. The evidence in this regard, however, shows that the frame structure occupied by the Newtons was not searched. The return on the warrant offered in evidence was that Harry McCarthy, though not named in the warrant as the owner and occupant, was actually the owner and in control of the occupancy of the premises at the time the raid was conducted. Under the issues herein raised by the defendant, he contends the search and seizure must stand or fall on the sufficiency of the description contained in the search warrant itself, or that in the said warrant the premises must be sufficiently described so as to enable the officers to locate, as he aptly puts it, a single and particular premises. He contends that it was not even a sufficient description to afford a place of beginning, much less to enable an officer to locate the place or premises particularly described. Moreover, he further contends that the warrant was so indefinite and uncertain as to involve the other frame house situated on the property described and inhabited by others not herein involved, and thereby constituted a blanket search warrant and was therefore invalid. Stated differently, the defendant contends that the foregoing description is so inadequate that a lay officer to whom it is directed may not without the aid of any other information or inquiry, having no personal knowledge of any kind whatsoever as to the premises to be searched, locate them from the description contained in the warrant.

To support the foregoing contentions he offered proof by the county surveyor to show that he could not locate the property from the warrant because, he said, there was no point of beginning and no section lines. With this conclusion the court is certainly not in accord. One cannot read the surveyor’s testimony without being thoroughly convinced that he was a willing witness for the defendant. His testimony is of little value because of its absurdity. A simple analysis of the warrant reveals the untenable nature of the defendant’s contention. In the first place, such matters are not to be construed by misinterpretation as to result in utterly illogical absurdities, nor is an officer required to act in such matters without the aid of some other information or inquiry. Because of the validity of the last assertion, sheriffs are equipped with maps, plats, etc., to enable them expeditiously to locate such premises as may be the object of their search, and for other purposes. Nor is the officer required to have no personal knowledge in such matters, or close his eyes to his common understanding. Here the sheriff knew where McCarthy’s home was. We know of no case holding that unless the officer used the search warrant to locate the premises searched the failure so to do would invalidate the search. The officer’s independent knowledge with reference to the location of the place to be searched would make no difference provided the property actually searched corresponded with that described in the warrant. The property in question was rural property located outside of the limits of the city of Tulsa. This being rural property the sheriff looking at the search warrant would first look to see if the property was located in Tulsa county.. The warrant so showing he would then look for the section, township and range to determine its further location. In the search warrant it appears that the section involved is Section 12, and to locate Section 12 he must ascertain in what township and range Section 12 is particularly located. If he did not know of his own knowledge the law permits him to refer to his maps and definitely determine the township and range. To hold otherwise is to reduce the law to an impractical and illogical absurdity. The description identifies the township as 19 N. and the range as 13 E. Such description is not inadequate, because of the omission of the letter T or the word township and the failure to spell out the abbreviation N with the Avord north. Nor is it inadequate because the letter R indicating the range is omitted or that the word “range” is entirely omitted. This omission of the letters T and R for the words township and range in such description is not fatal since common knowledge of persons versed in such matters as are sheriffs tells him that the reference 19 N and 13 E are to township 19 North and range 13 East. This being true, as it certainly is, thus this part of the foregoing description is valid for by reference to the face of the warrant the officer could ascertain the township and range of which the section of land involved is a part. Descriptions by section, township and range have been upheld. Crim v. State, 68 Okla. Cr. 390, 99 P. 2d 185. The evidence shows that the section thus described was the section containing the property herein involved, but the defendant contends even then it is not possible to locate the premises from the further description of the warrant. Can it be that “N.E.” “Northeast” is indefinite and inadequate for the reason the same does not contain the further description of % following the “N.E. of Northeast”? Based upon the common understanding, of persons handling such documents there would be no misunderstanding as to what Avas meant by the description contained in the search warrant, in spite of the technical failure to insert the fractional one-fourth. Again, here the officer may rely on common knoAvledge and understanding in interpreting abbreviations. The law, while jealously guarding constitutional protections, is practical. It does not require an officer to erect metaphysical obstructions to the performance of his duty. But the defendant contends that there is no place or point of beginning for further identification. This contention is wholly without merit. It clearly appears further in the description that the point of beginning is 685 feet south and 25 feet east of the northwest corner of the northeast quarter of the northeast quarter (the point of beginning), thence south 305 feet, east 470 feet, north 305 feet and east 470 feet to point of beginning, thus describing the northernmost tract of the premises involved. On this tract the buildings searched were located. Further, the description describes another tract reading as follows: “* * * and beginning 990 ft. S. and 25 ft. E. of N.W. corner of N.E. N.E. thence S. 275 ft., East 470 ft. N. 275 ft., W. 47 ft. to point of beginning, containing 6.38 acres more or less in sec. 12-19-N-13E, Tulsa County, Oklahoma.” Thus describing the south tract herein allegedly involved. Defendant contends that this tract cannot be closed up because of the description' 47 feet, on the North side, and thus that description contained in the warrant renders the entire instrument invalid. If it were true this tract could not be closed up on the north side, it would not invalidate the description in relation to the search herein conducted for the reason that the brick house and brick and frame garage search are both on the north half of the premises, entirely correctly described, and within the first tract' hereinbefore described. To one other than a person desiring to be confused, it is apparent that the figure 47 is a typographical error intended for 470 feet instead of'47 feet which would be entirely adequate to close the tract on the north side. Moreover from the description that preceded the number 47 as to the southerly tract, as well as that contained in the face of the warrant as to the northerly tract, it is conclusive that 470 was intended, since both of the tracts were of equal length, and no other conclusion can be arrived at upon a fair and just consideration of the description therein contained. A comparable description in a deed was held to be good in McLendon v. Ravesies, 178 Miss. 428, 173 So. 303. The preceding plat or drawing conclusively illustrates the clarity of the said description.

This court has repeatedly held that the description must be sufficiently definite and certain as to leave the •officer no discretion as to what property he shall search. Shipman v. State, 52 Okla. Cr. 373, 5 P. 2d 397; Shanks v. State, 59 Okla. Cr. 211, 56 P. 2d 1199; Linderman v. State, 43 Okla. Cr. 166, 277 P. 602; Preston v. State, 42 Okla. Cr. 372, 276 P. 784, reversing 40 Okla. Cr. 403, 269 P. 507; Smith v. State, 40 Okla. Cr. 366, 269 P. 376; Cook v. State, 40 Okla. Cr. 219, 267 P. 1045; Wofford v. State, 40 Okla. Cr. 18, 266 P. 494; Shanafelt v. State, 38 Okla. Cr. 345, 261 P. 380; Adcox v. State, 54 Okla. Cr. 23, 13 P. 2d 593; Caldwell v. State, 52 Okla. Cr. 286, 5 P. 2d 182; Powell v. State, 65 Okla. Cr. 221, 84 P. 2d 442; Linthicum v. State, 66 Okla. Cr. 327, 92 P. 2d 381; Weisband v. State, 69 Okla. Cr. 79, 100 P. 2d 297; Stouse v. State, 62 Okla. Cr. 46, 70 P. 2d 145; Peters v. State, 71 Okla. Cr. 175, 110 P. 2d 300; Pitzer v. State, 69 Okla. Cr. 363, 103 P. 2d 109. But if the officers executing the search warrant can locate the premises to be searched without the aid of any other information the warrant is sufficient. Mitchell v. State, 43 Okla. Cr. 63, 277 P. 760. Barring of course the use of maps to secure general directions and location. In Pickens v. State, 71 Okla. Cr. 167, 110 P. 2d 319, this court said:

“The description of the premises to be searched is sufficient, if it enables the officers executing the search warrant to locate the premises to be searched without the aid of any other information save that contained in the search warrant.”

Tlie description exclusive of general directions, which must in every such case be obtained by the officer from sources outside the warrant, met the requirements prescribed in Pickens v. State, supra.

But the defendant further contends that there was more than one inhabited house on the premises described and thus the warrant was blanket in its scope and therefore invalid. Such is not the case because the search was particularly limited in the search warrant to the brick house and the one story brick and frame building of approximately 7 rooms and the brick and frame garage. It was not broad enough to be inclusive of the 4-room frame house. The particular description of the brick house and brick and frame garage, under the conditions, was as definite and certain as would have been a correct house number in an urban settlement. The 4-room frame house was. not searched. The premises to be searched thus being limited in the warrant, there being no other brick house and brick and frame garage on the premises, there would be no confusion as to what the search was intended to cover. The search being thus confined and thus executed did not constitute a blanket search warrant. The cases cited by the defendant in this connection are distinguishable and clearly not in point. The search herein involved in no sense was an exploratory search. We are convinced that the description contained in the warrant was sufficiently accurate, that it meets the requirements of the law, and from it, the property could be specifically located. It was undoubtedly upon the same or similar line of logic that the trial court overruled the defendant’s motion to suppress the evidence. If the search warrant had not particularly described the dwelling as of brick construction and the garage as a frame and brick garage, the warrant would have fallen in that classification of a blanket warrant, since there would have been no means of distinguishing the place to be searched, and would therefore have been void. But the particularity of the description relative to the house and garage to be searched removed it from such classification and gave it that definiteness and certainty required by law. This contention is therefore without merit.

The defendant waived a jury and stipulated that the foregoing and other facts adduced at the hearing, on the motion to suppress might be considered by the court, as the facts for determination of the issue as charged in the information. Upon this basis the case was submitted to the trial court without a jury for judgment. The trial court found the evidence sufficient to sustain the conviction and accordingly pronounced judgment and sentence. In this connection we have repeatedly said as in Crim v. State, supra [68 Okla. Cr. 390, 99 P. 2d 186]:

“Where a jury is waived and a case tried to the court, his findings as to the guilt of the defendant will not be reversed where there is any competent evidence in the record, together with the reasonable inferences and deductions to be drawn therefrom, supporting the court’s finding.”

There being sufficient evidence to support the judgment and sentence of the trial court, the same is accordingly affirmed.

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


author: JONES, P. J.

text:
    VICK v. STATE.
    No. A-11134.
    May 10, 1950.
    (218 P. 2d 389.)

      H. M. Shirley, Coalgate, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Carl Vick, was charged in the district court of Coal county with the crime of unlawfully disposing of property covered by chattel mortgage, was tried, convicted and pursuant to the verdict of the jury was sentenced to pay a fine of $100 and has appealed.

Two propositions are presented in the brief of defendant: First, the evidence was insufficient to sustain the conviction. Second, the court erred in not dismissing the action when the state failed to affirmatively show that the intangible tax had been paid on the note in question.

There was a sharp conflict in the testimony of the prosecuting witness, and the defendant and we quite frankly state that had we been on the jury our verdict would probably have been for the defendant. However, the jurors of Coal county heard the evidence, saw the demeanor of the witnesses upon the stand, were familiar with the conditions described by the witnesses and have returned their verdict upon this conflict of evidence. Even though we feel that had we been on the jury we would have voted for acquittal, still, under the established law of the state, we do not feel justified in substituting our judgment for that of the jurors upon these disputed questions of fact where there is ample competent evidence if credited by the jury to sustain their findings.

W. L. Baughman who operates a beer parlor and pool hall was the prosecuting witness. He testified that he sold the defendant 13 head of cattle- in August, 1947, and took a note and chattel mortgage in the sum of $1,155 from the defendant which was due on October 16, 1947. That the chattel mortgage covered the 13 head of cattle and 750 bushels of corn.

Baughman further testified that after the note became due the defendant came to his place and told him that he didn’t get the corn out of the field and asked him to let the note ride a little longer; that nothing was done until January, 1948; that in January he tried to foreclose his mortgage but could not find any of the corn.

John McGinnis testified that on December 29, 1947, he hauled 100 bushels of corn from.the defendant’s place to Limestone Gap; that part of the corn was in the field and part had been gathered; that he delivered the corn to John McEntire.

Clark McEntire testified that he lived at Limestone Gap and purchased some corn from the defendant. Upon objection being made to the testimony of this witness the court sustained the objection upon the theory that the information alleged a sale of the mortgaged property to Frank Langford and C. L. Taylor and that therefore it would be improper to admit evidence of sales to other parties.

Frank Langford testified that in October he bought 106 bushels of corn from the defendant; that he got the corn out of the barn and off of a wagon there at the place defendant was farming.

C. L. Taylor testified that in November he purchased $237.75 worth of corn from the defendant; that the corn was in two fields there at defendant’s place. •

W. L. Baughman being recalled as a witness testified that the corn upon which he had a mortgage was in the field on the Perkins’ place.

The defendant testified that in 1946 he purchased 50 head of cattle from Baughman; that he borrowed the money at the Case State Bank in Stonewall; that Baugh-man signed the note with him for $1,907; that the note was executed on January 29, 1947, and a mortgage was given on the 50 head of cattle and other livestock belonging to the defendant plus his crop for 1947, consisting of 12 acres of com, 12 acres of peas, and other crops. The defendant testified that he paid about $900 on this note; that in the fall of 1947 the defendant suggested that he make the note and mortgage, which is the subject of this complaint, so that he could take them to the bank at Stonewall and get an extension on the old note which he and plaintiff had signed; that he signed the note and mortgage at which time there was no consideration at all given for the note; that he later asked Baughman to give him back the note and mortgage and Baughman refused to do so. The defendant said the corn sold to Taylor and Langford as testified to by them was corn which he and his brothers had raised and was not covered by mortgage to anybody.

The brothers of defendant each testified in his behalf and verified the testimony of defendant that the corn which was sold was corn raised by the brothers and was not covered by a mortgage.

C. S. Case, president of the Case State Bank at Stonewall, testified concerning the transaction which defendant and Baughman had with his bank in connection with the loan of $1,907. He testified that when this note and mortgage was executed the money was given to Baugh-man; that the defendant, in November, 1947, made two payments on the note, one in the amount of $400 and the other in the amount of $500 and that the balance on the note was still owing.

Seven witnesses were then placed on the witness stand and they each testified that they were well acquainted with Baughman and that his reputation for being an honest and truthful man in the community where he resided was bad. On cross-examination it was disclosed that some of these witnesses had had trouble with Baugh-man and others testified on cross-examination that the people in the community thought that he was a cattle thief.

As hereinabove stated, the evidence was conflicting. The jury chose to believe the witness Baughman whose reputation was discredited by witnesses for the defendant. We cannot say there was an absence of competent evidence to support their verdict. The record showed that the defendant was a young man who had just been recently discharged from the army; that he had never been arrested before in his lifetime; that he spent 37 months fighting in the Phillippines and in the South Pacific; was seriously wounded and was decorated with a Purple Heart. Probably for these reasons the sympathy of this court is on the side of the defendant in this particular action.

During the trial of the case Baughman identified the note and mortgage signed by the defendant and they were admitted in evidence. At the close of the state’s case counsel for defendant moved to dismiss the prosecution for the reason the evidence did not. affirmatively show that Baughman had paid the intangible tax on the note and mortgage, which motion was overruled.

68 O.S. 1941 § 1501 defines intangible personal property and among other definitions it includes money, accounts and bills receivable, bonds, promissory notes, and all other evidences of debt. Under such a definition, the note secured by the chattel mortgage here referred to was intangible personal property and as such should have been submitted for taxation in Coal county during the assessing period commencing, in January, 1948. This assignment of error is predicated upon Title 68 O.S. 1941 § 1515, which provides:

“In every action or suit in any court for the collection of any bond, note, account receivable, or other intangible personal property as defined in Section 1 of this Act, the plaintiff must allege and prove:
“That such intangible personal property sued upon has been assessed for taxation under the provisions of this Act for every tax year during which he was the owner of same, and that all taxes, together with accrued interest and penalties, assessed upon the property for such period, have been paid; provided, that the plaintiff shall not be required to prove assessment and payment hereunder for a period of more than three (3) fiscal years prior to the time of bringing his action, nor for any period of time in which the subject of his action was not taxable under this Act; and provided further, if such intangible property is not subject to such taxes he may so allege, stating the controlling facts upon which is based such allegation.
“If the petition or complaint of the plaintiff fails to make the allegations herein prescribed, or if he fails to prove facts supporting such allegations when made, the action must be dismissed upon demurrer or motion of the defendant, or by the court on its own motion.”

This section of the statute fixes the quantum of proof which the holder of a note shall make before he could effectively maintain a civil action for collection of the note and pertains to the civil rights between the parties to the note. Here we have a criminal action which is brought for the alleged violation of the laws of the state. The statute does not cancel the obligation owing from the debtor to the creditor and does not prevent the creditor from collecting his debt, but rather it is to force payment of the tax and is for the protection of the public in the collection of revenue. Waters v. Rushing, 194 Okla. 306, 151 P. 2d 423. Here there was no evidence as to whether the prosecuting, witness did or did not list the note for assessment of the intangible tax and no question was asked as to whether he had paid the intangible tax and we do not think that such was a proper issue in a criminal action.

This action was instituted under 21 Ó.S. 1941 § 1834 which provides:

“Any mortgagor of personal property, or his legal representative, who, while such mortgage remains in force and unsatisfied, conceals, sells, or in any manner disposes of such property, or any part thereof, or removes such property, or any part thereof, beyond the limits of the county, or materially injures or wilfully destroys such property, or any part thereof, without the written consent of the holder of such mortgage, shall be deemed guilty of a felony, and shall, upon conviction, be punished by imprisonment in the penitentiary for a period not exceeding three years or in the county jail not exceeding one year, or by a fine of not to exceed five hundred dollars: Provided, that the writing containing the consent of the holder of the mortgage, as before specified, shall be the only competent evidence of such consent, unless it appear that such writing has been lost or destroyed. R.L. 1910, § 2755.”

There has been no amendment to this statute since the adoption of the intangible property act, requiring as a prerequisite to the maintaining of a prosecution for the alleged violation of said statute an affirmative showing that the intangible tax has been paid on the note, such as is required before a civil action for recovery of the debt may be maintained between the parties. Until the Legislature makes such provision in the Criminal Code, we do not feel authorized to by judicial legislation write such provision into law. The judgment and sentence of the district court of Coal county is affirmed.

BRETT and POWELL, JJ., concur.


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    BUSH v. STATE.
    No. A-11099.
    May 10, 1950.
    (218 P. 2d 386.)

      David C. Shapard and Lee Williams, Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   POWELL, J.

The defendant, L. B. Bush, was charged by an information filed in the district court of Oklahoma county, with the crime of embezzlement; was tried, convicted, and by the court sentenced to serve two and one-half years in the State Penitentiary, and has appealed.

The plaintiff in error, hereinafter referred to as defendant, for reversal, contends that his demurrer to the evidence should have been sustained, as insufficient, and that the instructions were not sufficient and proper under the testimony.

We have carefully examined the record covering the testimony of the witnesses for both the prosecution and for the defendant

It was brought out by the evidence that the complaining witness, Mrs. Juanita Taylor, was interested in purchasing some real estate located in Oklahoma City, and which the defendant had advertised for sale. The owner, Dave Syber, testified that he never at any time had any personal dealings with the defendant, or authorized anyone to advertise his property for sale, though he personally had a sign in front of his property offering it for sale. He admitted that a Mr. Hall, who it later developed worked for Bush, had made inquiries about the place being for sale,. and asked permission of Syber to show the place to a prospective purchaser, and he brought Mrs. Taylor to see the place, but that Syber and his wife decided not to sell, and refused to sign the contract that Hall presented, and wherein L. B. Bush, or the Bush Exchange and Real Estate Company, was to handle the sale.

The evidence further showed that Mrs. Taylor deposited in trust with the defendant, Bush, the sum of $200 as a down payment on the purchase price of said property, but to be forfeited if Mrs. Taylor refused to go through with the purchase. The defendant claimed that Mrs. Taylor decided not to buy the property, but her testimony was that she was at all times ready, able and willing to go through with the purchase, but that the owners disclaimed any dealings with Bush, and had refused to sign any agreement with Hall, acting for Bush, and that said owners would not execute a deed, and that no deed had ever been tendered to her. Mrs. Taylor testified that Bush refused to return her money, although she demanded it a number of times.

While the record does not indicate that defendant sought to hold Mr. Syber, the owner, liable for the payment of a commission, or contested Mrs. Taylor’s suit to recover the $200 deposit, as argued by the Attorney General, counsel for defendant have filed a reply brief attached to which are certified copies of the court clerk’s minutes in case No. 8814 in the court of common pleas of Oklahoma county, Bush v. Syber, by which it appears that the defendant did sue Syber for a commission. The outcome is not shown. Also, in case No. 8881, in the same court, in Taylor v. Bush, it appears that the defendant did contest the suit and that Mrs. Taylor obtained judgment against the defendant on October 16, 1946, and the judgment was by the defendant paid on November 20, 1947, after the charge herein was filed on October 16,1947. The fact of payment after the charge was filed may not be considered, and such evidence would have been inadmissible in the trial court, it being provided by Tit. 21 O.S.A. § 1461:

“Whenever it is made to appear that prior to any information laid before a magistrate charging the commission of embezzlement, the person accused voluntarily and actually restored or tendered restoration of the property alleged to have been embezzled, or any part thereof, such is not a ground of defense to the indictment, but it authorizes the court to mitigate punishment in its discretion.”

See, also, Fulkerson v. State, 17 Okla. Cr. 103, 189 F. 1092.

But defendant argues that the fact of the judgment “does not add to any criminal guilt which is based on the facts at the time and the intent of the defendant at that time.” It was a circumstance that the jury no doubt considered along with the evidence of adverse character witnesses (the defendant having voluntarily brought his character in issue), in indicating bad faith on the part of the defendant in his method of obtaining and handling Mrs. Taylor’s funds. If Syber had ever signed the contract, even though the contract was tricky and unfair, in holding Mrs. Taylor liable for a commission, yet it would have been a completed contract between purchaser and seller and whereby either became liable for payment of a broker’s commission. But the contract was never completed. The money was delivered to defendant for the down payment on a home. Defendant claimed that Mr. Syber and Mrs. Taylor came to a mutual understanding to call the sale off. The jury considered this contention.

Counsel for defendant say:

“The statute very clearly provides that if title to the money is claimed openly in good faith, it is a defense even though such claim is untenable”, citing Tit. 21 O. S. A. § 1459, which reads: “Upon any prosecution for embezzlement it is a sufficient defense that the property was appropriated openly and avowedly, and under a claim of title preferred in good faith even though such claim is untenable. But this provision shall not excuse the retention of the property of another, to offset or pay any demand held against him.”

The above statute was construed by this court in the case of Choate v. State, 12 Okla. Cr. 560, 160 P. 34, 36, L.R.A. 1917A, 1287, wherein the defendant in that case relied upon the first part of said section and claimed that “he appropriated the money in good faith, believing that the ward was indebted to him in this amount or more” This court said:

“A claim that one charged with embezzlement appropriated the funds alleged to have been embezzled in good faith, believing tbe owner of the funds was indebted to him in the amount appropriated or more, is under our statute, no excuse or defense whatever. And to all intents and purposes such a claim made in open court would amount to a plea of guilty.”

It is apparent that the instrument never ripened into an enforceable contract. The negotiations of the defendant through Ms agent Hall with Syber failed, and the jury decided that the failure was through no fault of Mrs. Taylor. There is ample evidence to justify this conclusion. The funds deposited with the defendant in trust for the specific purpose of application on the purchase price should have been returned to Mrs. Taylor by the defendant.

The issues were fairly submitted to the jury, and we find no prejudicial error in the record. The instructions fairly presented the issues, and no exceptions were reserved, and no additional or different instructions were requested. This court has uniformly held in considering the sufficiency of the evidence, that the function of the Criminal Court of Appeals is limited to ascertaining whether there is a basis in evidence on which the jury could reasonably conclude that the defendant was guilty as charged. See: Keith v. State, 87 Okla. Cr. 310, 197 P. 2d 635; Glascow v. State, 88 Okla. Cr. 279, 202 P. 2d 999; Wilson v. State, 90 Okla. Cr. 180, 212 P. 2d 172; Bourns v. State, 57 Okla. Cr. 377, 48 P. 2d 353.

We find that the defendant had a fair and impartial trial, but considering the nature of the case, and the evidence as a whole, it is the opinion of this court that the judgment should be modified to one year in the penitentiary, and as so modified, the judgment of the district court of Oklahoma county is affirmed.

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


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    NOTT v. STATE.
    No. A-11127.
    May 10, 1950.
    (218 P. 2d 389.)
    Jack L. Spivey, Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, P. J.

H. W. Nott was charged in the court of common pleas of Oklahoma county with the offense of unlawful possession of intoxicating liquor, found guilty by a jury, and sentenced to serve thirty (30) days in the county jail, and pay a fine of fifty (50) dollars. From such judgment and sentence an appeal was duly filed in this court.

The county attorney of Oklahoma county has filed a motion to abate in which he alleges that on August 23, 1949, the plaintiff in error died of gunshot wounds.

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

It is therefore considered, ordered, adjudged and decreed that the proceedings in the above-entitled cause do abate, and the cause is remanded to the trial court with directions to enter appropriate order to that effect.

BRETT and POWELL, JJ., concur.


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    Ex parte CAMERON.
    No. A-11276.
    May 17, 1950.
    (218 P. 2d 654.)

      Leslie Cameron, pro se.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondents.
   POWELL, J.

The petitioner, Leslie Cameron, seeks by way of writ of habeas corpus to secure the dismissal of certain charges pending against him in Nowata' county, Okla. It appears that petitioner is now serving a life sentence in the State Penitentiary at McAlester, where he is confined pursuant to a commitment from the district court of Washington county upon a conviction and sentence of life imprisonment for the crime of murder. This court has heretofore denied one petition of petitioner for a writ of habeas corpus. See: Ex parte Cameron, 78 Okla. Cr. 42, 143 P. 2d 164.

In the present petition the said Leslie Cameron seeks to secure the dismissal of two criminal charges apparently filed with the county judge.of Nowata county, as an examining magistrate, and particularly to obtain dismissal in case No. 3935, wherein petitioner is charged with robbery with firearms, and where a “hold order” was placed with the officials of the State Penitentiary on October 11, 1939, prior to the first application for writ of habeas corpus. Petitioner claims that the charges prevent him from being, considered to act as a trusty, and that the charges and warrant issued are null and void in that the officials of Nowata county have known of his whereabouts for more than eleven years.

It will be noted that no warrant has ever been served on the petitioner in either of the cases in question and that he is not detained by reason of said charges. Petitioner sets out a motion to dismiss that he filed with the district judge of Nowata county, but no information having been filed in tbe district court, tbe district judge had no authority to issue an order of dismissal.

The validity of the judgment and sentence under which petitioner is presently incarcerated is not involved.

The Attorney General has filed a response to the petition for the writ of habeas corpus in the nature of a demurrer. We conclude that it is well taken in that the scope of inquiry of this court is limited to a person restrained of his liberty. Tit. 12 O.S.A. § 1331. The matters now alleged were not involved and have no connection with the charge under which petitioner is being held, and a discharge is not sought. The petition is in the nature of a petition for writ of mandamus, but under the facts recited is wholly insufficient, and cannot be considered by this court. If the charges complained of are barred by the statute of limitations, 22 O.S.A. § 152, and are void, to obtain dismissal the petitioner must proceed by appropriate action in the court of the examining magistrate where the charges are filed.

It is therefore ordered that the petition for writ of habeas corpus be and the same is hereby denied.

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


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    BEARD v. STATE.
    No. A-11135.
    May 17, 1950.
    (218 P. 2d 655.)

      Sigler & Jackson, Ardmore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

This appeal is from a judgment of conviction rendered in the district court of Love county wherein sentence was pronounced pursuant to the verdict of the jury finding the defendant guilty “of assault with intent to kill, as charged in the information herein and fixing his punishment at one year and one day in the State Penitentiary”.

This appeal can be determined by consideration of the question as to whether the information was sufficient to charge the offense of assault and battery with a deadly weapon with intent to kill or any other felony within the jurisdiction of the district court. This question was properly raised by counsel for the defendant, raising the jurisdictional question that the information did not state the offense of assault with intent to kill or of any other felony within the jurisdiction of the district court but merely alleged facts constituting the misdemeanor of simple assault.

The information filed against the defendant reads:

“Now comes Charles A. Milor the duly qualified and acting County Attorney in and for Love County, State of Oklahoma and gives the Honorable District Court of Love County, State of Oklahoma, to know and be informed that Laudie Beard and Guy Keel did in Love County, and in the State of Oklahoma, on or about the 19th day of July, in the year of Our Lord, One Thousand Nine Hundred Forty-Seven, and anterior to the presentment hereof, commit the crime of Assault with intent to kill in the manner and form as follows, to-wit: That the said Laudie Beard and Guy Keel while acting together on the day and year aforesaid, did, unlawfully, wilfully, wrongfully, intentionally and feloniously, malte an assault in and upon one Warren G. Wilson with a certain weapon, to-wit: a rock which they the said Laudie Beard and Guy Keel then and there acting together then and there held and had and did, then and there with said weapon unlawfully, wilfully, wrongfully, intentionally, and feloniously, strike, wound and injure the said Warren G. Wilson with the unlawful and felonious intent then and there on the part of them the said Laudie Beard, and Guy Keel, to kill the said Warren G. Wilson; contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

The Attorney General has filed a written confession of error in which he admits that in view of the decision of the court in the cases of Ponkilla v. State, 69 Okla. Cr. 31, 99 P. 2d 910; Moody et al. v. State, 11 Okla. Cr. 471, 148 P. 1055; DeWitt v. State, 58 Okla. Cr. 261, 52 P. 2d 88; and others, that the information was insufficient to charge any felony and that therefore the trial court committed error in overruling the objection to the introduction of evidence because the information did not charge any crime within the jurisdiction of the district court.

In Ponkilla v. State [69 Okla. Cr. 31, 99 P. 2d 911], supra, the identical question here involved was under consideration. It was therein stated:

“The information, omitting formal parts, charges:
“ ‘Tony Ponkilla, then and there being did then and there unlawfully, knowingly, willfully, feloniously, intentionally and wrongfully make an assault in and upon one, Alford Ellis with a certain weapon, to-wit: A knife, which was then and there had and held in the hands of him the said Tony Ponkilla, and did then and there with said knife so had and held as aforesaid unlawfully, willfully, wrongfully and feloniously cut, cut at and attempt to cut the said Alford Ellis with the unlawful, wrongful and felonious intent and purpose then and there on the part of him the said Tony. Ponkilla to kill and murder, the said Alford Ellis. Contrary to the statute in such case made and provided, and against the peace and dignity of the State.’
“The record discloses that the county attorney thought that the defendant had violated the. provisions of Section 1873, O.S. 1931, 21 Okla. St. Ann. § 652, and that the information above quoted was "sufficient to charge an offense under said statute. This statue reads as follows:
“ ‘Every person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of firearm, airgun or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death or in resisting the execution of any legal process is punishable by imprisonment in the penitentiary not exceeding ten years.’
“It can be readily seen that the information does not charge the offense of assault and battery with a deadly weapon with intent to kill under this section because the information wholly fails to allege or describe a deadly weapon, and fails to describe the manner in which the alleged knife was used, which manner of use would make it a deadly weapon. The information merely states, ‘by means and use of a certain weapon, to-wit: A knife,’ which charges nothing but simple assault.
“We have long adhered to the rule that when the weapon charged to have been used is not a deadly weapon per se, a sufficient description of such instrument, the manner in which it was used, and the effect produced by the use thereof should be set forth. Moody v. State, 11 Okla. Cr. 471, 148 P. 1055.
“An ordinary pocket knife is not a deadly weapon per se, and in the absence of an allegation in the information of the same being a deadly weapon, or setting out the manner by which its use might produce death, no offense of assault with intent to kill by means of a deadly weapon is stated; and the court would have no jurisdiction to try the defendant under Section 1873, supra, or pronounce a judgment thereon under a conviction for this alleged offense or any lesser or included offense under said statute. Clemons v. State, 8 Okla. Cr. 452, 128 P. 739; Russell v. State, 9 Okla. Cr. 692, 133 P. 475; Blevins v. State, 11 Okla. Cr. 563, 149 P. 925; DeWitt v. State, 58 Okla. Cr. 261, 52 P. 2d 88.
* * * * * *
“In addition to Section 1873, O.S. 1931, 21 Okla. St. Ann. § 652, our Criminal Code provides in Section 1871, O.S. 1931, 21 Okla. St. Ann. § 653, punishment for an assault with intent to kill, other than assault described in Section 1873, by imprisonment in the penitentiary for a term not exceeding five years or in a county jail, not exceeding one year or by fine not exceeding five hundred dollars or both such fine and imprisonment. The county attorney, however, did not proceed under this statute, but relied for conviction upon Section 1873, supra, under which in an information properly drawn would have been included the lesser offense of assault with a dangerous weapon with intent to do bodily harm and the offense of assault and battery which are not necessarily included offenses under Section 1874, supra.
* * * * * *
“The Bill of Rights in our constitution and our statutes on criminal procedure both declare the salutary rule of the common law that in a criminal prosecution the accused shall be informed of the nature and cause of the accusation against him, and that the indictment or information must be direct and certain, that is, that it must set forth the special manner of the whole fact so‘that it can be clearly seen what particular offense, and not merely what nature of offense, is intended to be charged.
•x- *::• * * * *
“If the information states a public offense amounting to a felony which would bring it within the jurisdiction of the district court, then any objection to the sufficiency of the information must be raised by a motion or demurrer before the defendant’s plea is entered. But where the information states no offense within the jurisdiction of the court, that defect is fatal at any stage of the proceedings and is not waived by failure to take advantage thereof by motion or demurrer. Section 2956, O.S. 1931, 22 Okla. St. Ann. § 512; Stone v. State, 12 Okla. Cr. 313, 155 P. 701; Franklin v. State, 17 Okla. Cr. 348, 188 P. 686; Clark v. State, 11 Okla. Cr. 494, 148 P. 676.
“Here the information states only the offense of assault and battery which is, a misdemeanor. The district court has no jurisdiction over the trial of misdemeanors, and such lack of jurisdiction may be raised at any time.
“It is evident that the county attorney in preparing the information herein confused Section 1873, O.S. 1931, 21 Okla. St. Ann. § 652, Section 1874, 21 Okla. St. Ann. § 653, and Section 1870, O.S. 1931, 21 Okla. St. Ann. § 645. A strong case was presented against the defendant; but under the facts herein, this prosecution should have been under Section 1870, O.S. 1931, 21 Okla. St. Ann. § 645, and the defendant charged with assault with a sharp or dangerous weapon with intent to do bodily harm.”

The Ponkilla case is almost identical to the instant case and that opinion disposes of the question here presented. We are of the opinion that the confession of error by the Attorney General is well taken; that the information was insufficient to charge any felony but charged only the misdemeanor of simple assault. The rock named in the information was not a deadly weapon per se, so a sufficient description of such alleged weapon, the manner in which it was used, and the effect produced by the use thereof should have been set forth in the information.

The defendant is not entitled to a discharge but the district court should order him held pending the institution of a new complaint before a committing magistrate which sufficiently charges a felony. The county attorney’s attention is directed to the fact that this complaint should be filed before July 19, 1950, in order to avoid having the prosecution barred by the three year statute of limitation.

For the reasons herein stated, the judgment and .sentence of the district court of Love county is reversed and the cause remanded for further proceedings in accordance with the views herein stated.

BRETT and POWELL. JJ.. concur.


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    FRY v. STATE.
    No. A-11112.
    May 17, 1950.
    (218 P. 2d 643.)

      M. O. Counts, McAlester, and Clint Braden, Wilbur - ton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

Plaintiff in error, Leo Fry, defendant below, was charged by information in the district court of Latimer county, Okla., with the crime of the murder of Lawrence Riley on March 23, 1947. The defendant was tried, and convicted by a jury of first degree manslaughter, which fixed his punishment at 25 years in the State Penitentiary, and judgment and sentence was entered accordingly. From said judgment and sentence, this appeal has been perfected.

Defendant makes numerous assignments of error which will be considered in the order of the propositions presented in his brief. It appears from the record that as. an afterthought the defendant Tommie Burke was charged jointly with the defendant Fry with the commission of the alleged crime. A severance was granted and Fry was tried separately and convicted and sentenced as hereinbefore indicated. On the trial there was a great deal of conflict in the evidence of the state and the defendant. These conflicts are the result of what may be termed a legal dilemma. The state was compelled to rely for its evidence in chief on the oral statements made by the defendant to Sheriff Bill Alexander of Pittsburg county, Sheriff R. D. Prock of Latimer county, Deputy Sheriff DeLoach of Latimer county, and others, as to the killing, the details of some of which the defendant denied. By charging Tommie Burke as a codefendant this impasse was created. This record certainly does not support a charge of murder against Tommie Burke. It presents him only. in the role of a bystander and not a participant. The state gained nothing by charging Burke. The procedure adopted was unnecessary since the defendant admitted the killing, and the stories related by the officers, as well as the defendant, as to the reason and the manner thereof in the main were substantially the same. The conflicts in the evidence appear as to incidental matters. A brief resume of the evidence discloses the following uncontroverted and uncontradicted facts. It appears that the defendant Fry was 28 years of age, that he had lost a leg in an oil field accident some years prior to the crime herein involved, had an artificial leg, and at the time of the killing his home was in Harts-horne, Pittsburg county, Okla., though he had formerly lived in Latimer county. Before the killing on August 23, 1947, the defendant and decedent Lawrence Riley were friends. On Friday afternoon of August 22, 1947, the defendant and the deceased Lawrence Riley, together with the codefendant Tommie Burke and a Mrs. Whaley, met at a beer parlor in Hartshorne, Okla., around 5:30 p. m. There they engaged in beer drinking until about dark, or around 8:30, when they all loaded into Tommie Burke’s truck, and went to a place designated as Antonel-li’s and run by a Mr. Pat Mahan, where they continued their drinking until around midnight when the proprietor moved them out and closed up. Mrs. Whaley was a relative of the defendant’s brother’s wife. During the round of drinking at Antonelli’s the victim of the killing left with Mrs. Whaley and they were gone 20 or 30 minutes. They returned about 11:30 p. m. Shortly thereafter Mrs. Whaley left with some friends. Thereafter the defendant rebuked Riley for taking her out and admonished him “Lawrence, if I were you I would be careful with that woman. She has got some little children”, to which Riley replied “Its none of your damned business. What you. need is a good working over”. The uncontradicted record shows that Fry challenged Riley to go outside. Defendant admits that he did so. A difficulty between them was prevented there only by the intervention of Mr. Mahan who told them he did not want them to have any trouble in his place. They obliged and resumed their beer drinking until he closed up. Some time during the drinking they were joined by Jody Critchard. About midnight Riley, Burke, Critchard and the defendant got into Burke’s truck and drove to Gowen where Critchard got out. The record shows from the time of the difficulty at Antonelli’s there were no further words between Fry and Riley. Leaving Gowen they proceeded down Highway 270 towards Hartshorne but in Latimer county. According to the statement given to the officers by the defendant shortly after his arrest, just east of the Pittsburg county line, Riley, who was then driving, drove the auto onto a sideroad about 30 ór 40 feet and abruptly stopped, and according to the record became the aggressor, saying “Here is where something is going to happen”. He got out of the truck and came around to Fry’s side, Burke being in the middle of the seat. Burke said “Lawrence, there is no use of that”. The defendant opened the door and said “Lawrence, there is no use of having any trouble”. The defendant tried to push him back with his foot, and Riley grabbed and pulled him out of the truck. The defendant tried to get away, started around the truck but Riley jerked him back and turned him around and said “You son-of-a-bitch, this is where you get yours” and struck him on the left shoulder with some kind of heavy instrument. The record does not disclose what kind of instrument he used, nor does the record show that anything in the nature of such an instrument was found other than a wrench which belonged to the defendant and was in the defendant Fry’s left hip pocket at the time the alleged assault was made upon him. Fry says the blow staggered him and the next think he knew they were on the ground. He said Riley was on top of him, choking and beating him. He said he could hardly breathe, that he was afraid that he would choke him to death. The defendant then got his pocketknife out and stabbed Riley in the left leg, he said, to get him off, as he feared for his life. The wound thus inflicted resulted in severing the femoral artery and the saphenous vein so that Riley bled to death within a few minutes thereafter. Such is the evidence of the killing as delineated by the officers, as it was told to them by the defendant and as testified to by the defendant in his own behalf.

The conflicts in the evidence that appear in the record and which no doubt played an important part in the verdict were as follows: The defendant testified the reason he remonstrated about the deceased’s attention to Mrs. Whaley was because the deceased had confided in him some time before that he had a venereal disease. He did not know how, when or where or who was present when this information was conveyed to him but that Burke heard it. Burke, of course, being a codefendant and having asked for a severance in the case did not testify. It appears that Riley did not tell the facts to the officers as to the reason he remonstrated with Riley, when they first interrogated him. Moreover the record shows a short time before the crime Riley had had a blood test and had given blood for transfusion for his father-in-law. The test did not disclose any trace of a venereal disease. No one else testified to Riley being so infected. In light of the test this cast a bad light upon the claim of Riley’s being infected with a venereal disease. In fact, it gave it the appearance of being a defense figment of .Fry’s imagination. Riley’s wife testified he never had a venereal disease. Another conflict which reflected on the defendant’s character for truthfulness was the evidence when first interrogated by the officers he said a hitchhiker whose name was Bill killed Riley. Only after Burke told Officer Alexander that the story was not true did the defendant tell that he himself killed Riley. Furthermore, the defendant was uncertain in his delineation as to the details of the fight. In addition, his recollection was hazy in relation as to how the truck was parked and just how the fight occurred, with reference to the truck lights, etc., also in which direction he was on the ground, east or west. Moreover, he was not certain but thought that Riley had his knee in his stomach. He testified the decedent beat him with some heavy object on the arms and head but was able to display only one bruise on his shoulder. Then, too, the only heavy object such as described by the defendant was the wrench heretofore mentioned which the defendant himself had in his hip pocket. If he had been beaten, as he claimed he was, there certainly would have been evidence of it about his arms and head. Furthermore, it was a day after the killing before he claimed the bruise on his shoulder was a result of the fight. The defendant and Riley were drunk, as the record reveals. The jury no doubt considered the killing the result of a drunken brawl, hence the inconsistencies in the facts, most of which were gleaned from a drunken recollection. The officers testified Fry said that he told them he threw the knife away. This he denied. Furthermore, he also denied that the knife found on the streets of Hartshorne in the vicinity of where they brought the dead body of Riley was his knife though he said it looked like his knife. He denied Deputy Sheriff Frock’s evidence that when shown the knife he tried to scrape the dried blood off of it and was prevented only from doing so by the intervention of the sheriff. These and other inconsistencies incident to the killing appear in the record. From a factual standpoint the evidence presents issues falling within the provisions of Title 21, § 711, subd. 2 O.S.A. 1941, defining first degree manslaughter in part as follows:

“2. When perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide.”

The record is entirely lacking as to premeditation or intentional design to effect death, and therefore did not constitute murder. Tyner v. U. S., 2 Okla. Cr. 689, 103 P. 1057; Wingfield v. State, 81 Okla. Cr. 146, 160 P. 2d 945; Coslow v. State, 83 Okla. Cr. 378, 177 P. 2d 518; Hodges v. State, 65 Okla. Cr. 277, 85 P. 2d 443, modified 66 Okla. Cr. 422, 92 P. 2d 590.

Therefore, we are confronted with the question, Did the defendant act in his self-defense or resort to the use of more force than was necessary to resist the assault made by Eiley upon him? This issue was one for the determination of the jury. Phelps v. State, 64 Okla. Cr. 240, 78 P. 2d 1068; Pritchett v. State, 79 Okla. Cr. 401, 155 P. 2d 551. The jury haying determined this issue against* the defendant, and there being competent evidence to sustain this verdict, the Criminal Court of Appeals will not interfere therewith even though there is a sharp conflict in the evidence and different inferences may be drawn therefrom, since it is the exclusive province of the jury to weigh the evidence and determine the facts. Sadler v. State, 84 Okla. Cr. 97, 179 P. 2d 479; Young v. State, 84 Okla. Cr. 71, 179 P. 2d 173; Kimbrough v. State, 66 Okla. Cr. 66, 89 P. 2d 982. The defendant’s contention that the verdict of the jury is not supported by sufficient evidence may not be sustained.

Next, the defendant contends that the cross-examination to which the special prosecutor subjected him constituted prejudicial error. Such matters were inquired about as to whether the defendant had slept since the killing. Further, the defendant was asked and required to open and close the knife allegedly used in the killing time and time again and demonstrate its use notwithstanding the defendant frankly admitted he could not. demonstrate how he used it. The cross-examination was highly argumentative, with both prosecutors standing in front of the defendant engaging in the interrogation. Furthermore, the prosecutors resorted to repetition, and otherwise sought to leave unfair inferences in their cross-examination. In a close case such tactics may result in reversal. Wisdom v. State, 18 Okla. Cr. 118, 193 P. 1003. See, also, Rogers v. State, 8 Okla. Cr. 226, 127 P. 365, wherein this court said:

“In the examination or cross-examination of witnesses, it is highly improper for attorneys to ask questions which suggest unfair inferences, either on one side or the other, and such conduct should not be permitted by the trial court.
“Every defendant in a criminal case is entitled to fair treatment on his trial, and a prosecuting attorney should not be permitted to ask questions which he knows to be illegal for. the purpose of prejudicing the defendant, or to make remarks in the examination of a witness which contain unfair reflections upon the defendant. In the examination of witnesses, he should confine himself exclusively to developing legal evidence against the defendant, and should reserve his comments on the testimony for his argument to the jury; and it is the duty of trial courts to rigidly enforce this rule.” Jelts v. State, 7 Okla. Cr. 733, 734, 123 P. 1130.

However, in Brummett v. State, 39 Okla. Cr. 284, 264 P. 224, it was said:

“A defendant, testifying in his own behalf, stands upon the same footing as any other witness on cross-examination upon matters affecting his credibility.
“Where the county attorney subjected the defendant to a series of immaterial questions as to other offenses and questions tending to degrade and belittle him, the objection of the defendant to the questions of the county attorney should have been sustained, and the court erred in overruling defendant’s objection.
“A conviction will be set. aside where a county attorney persisted in asking improper and prejudicial questions on his cross-examination of the defendant, and the trial court should have sustained the objection of the defendant to the questions of the county attorney.”

See, also, Byars v. State, 56 Okla. Cr. 349, 39 P. 2d 157; Jackson v. State, 67 Okla. Cr. 422, 94 P. 2d 851. Much of the cross-examination was entirely unnecessary, and may have influenced the jury in fixing the punishment at a greater penalty after they found the defendant guilty. We do not believe, however, it influenced the conclusion by the jury as to the defendant’s guilt. Nevertheless, it was the trial court’s duty to see that the cross-examination was kept within proper limits. While the cross-examination was in many respects erroneous, we do not believe in the light of the whole record it was prejudicial except as to punishment.

Next, the defendant contends the trial court erred in overruling his application for a change of venue. The court based his action upon evidence adduced both by the state and the defendant. His findings, in overruling the application, are supported by the record in which he sets forth his reasons for overruling the application for change of venue. It reads as follows, to wit:

“Now I will have to find from the testimony, before I would be warranted in granting a change of venue in the case, that prejudice is such that the defendant could not have a fair and impartial trial. There are three affidavits attached to this application. They are all from Wilburton. Now, jurors are drawn from the county at large, and the County Judge’s testimony was that there are eight townships in the county, and further all of the witnesses for the state and the defendant testified here that they believe he can have a fair trial in this case. They all say that. So, before I would, be warranted under the law that governs me the same as anyone else, before I would be warranted under the law in sustaining this motion, I would have to find that that condition existed. I would have to find that the prejudice of the people of Latimer County is such that the defendant can not have a fair and impartial trial. I can’t find that from this testimony, gentlemen, I will be frank with you. The County Superintendent, who visits schools, I presume over the county, if there was a wide discussion of it she would hear something about it. And the County Judge who takes care of his duties as County Judge, contacting the citizens of Latimer County, says he thinks he can have a fair trial. The sheriff who was placed on the witness stand by the defendant and petitioner here, also testified that he thinks he can have a fair trial. I believe under that testimony — I don’t believe Judge Tripp ever came out point-blank on the question as to whether or not he thought he could have a fair trial, or couldn’t. He did discuss the proposition of some prejudice existing at the time the alleged offense happened.”

The defendant contends that since nine of the 28 jurors called had fixed opinions as to the guilt or innocence of the defendant, this constituted strong evidence of prejudice. While indicative of prejudice, it certainly is not controlling since the record shows that the defendant only exercised six of his nine peremptory challenges allowed by law. This evidence combined with the court’s findings supported by the record does not lend great weight to this contention. Nor is the newspaper article offered in support of the application of great weight in view of the circulation being only 1,081' against a population of 12,380 in the county. Furthermore, the testimony of the county judge and the county superintendent offered by the state supports the court’s conclusion as to a fair trial. As does the testimony of the sheriff of Latimer county offered by the defendant. Under this state of the record we cannot say the trial court abused its discretion in denying a change of venue. On no other ground would we be justified in holding to the contrary. In Sweet v. State, 70 Okla. Cr. 443, 107 P. 2d 817, 820, this court said in sustaining the trial court in a similar situation:

“The presumption of law is that a defendant can get a fair and impartial trial in the county in which the offense was committed; and if this is not true, the burden is upon the defendant who seeks a change of venue to establish his right thereto. Davis v. State, 53 Okla. Cr. 411, 12 P. 2d 555; Goss v. State, 24 Okla. Cr. 383, 218 P. 339; Maddox v. State, 12 Okla. Cr. 462, 158 P. 883.
“On motion for a change of venue, if upon the examination of the affidavits and counter-affidavits, and the examination of the witnesses in support of the application in open court, the court is convinced that a fair and impartial trial cannot be had in the county, then and under those conditions it is mandatory that he grant a change of venue, but not otherwise. He sits in judgment on that question just as any other question of fact that might be submitted to him, and unless it is clear that he has abused his discretion, or committed error in his judgment, his finding and judgment will not be disr turbed by this court. Warren v. State, 24 Okla. Cr. 6, 215 P. 635; Wright v. State, 12 Okla. Cr. 443, 158 P. 290; Gentry v. State, 11 Okla. Cr. 355, 146 P. 719; Sayers v. State, 10 Okla. Cr. 233, 135 P. 1073; Edwards v. State, 9 Okla. Cr. 306, 131 P. 956, 44 L.R.A., N.S., 701; Watson v. State, 9 Okla. Cr. 1, 130 P. 816.
“By an abuse of discretion is meant a clearly erroneous conclusion and judgment; one that is clearly against the logic' and effect of the facts presented in support of and against the application. Johnson v. State, 1 Okla. Cr. 321, 97 P. 1059, 18 Ann. Cas. 300; Black v. State, 3 Okla. Cr. 547, 107 P. 524; Turner v. State, 4 Okla. Cr. 164, 111 P. 988; Starr v. State, 5 Okla. Cr. 440, 115 P. 356; Tegeler v. State, 9 Okla. Cr. 138, 130 P. 1164.
“It is not an abuse of discretion to deny a change of venue where the subsequent proceedings show that there was no difficulty in securing a fair and impartial trial. Huffman v. State, 28 Okla. Cr. 296, 230 P. 272; Dodson v. State, 33 Okla. Cr. 85, 242 P. 578.
“The mere fact that the inhabitants of a county have read and heard of the commission of a crime does not disqualify them. To warrant a change of venue, it must be made to appear they have a fixed opinion as to the guilt or innocence of an accused to the extent that an accused cannot have a fair trial by an impartial jury. Johnson v. State, 35 Okla. Cr. 212, 249 P. 971; Newton v. State, 56 Okla. Cr. 391, 40 P. 2d 688.”

See, also, Rawls v. State, 86 Okla. Cr. 119, 190 P. 2d 159. In the case at bar the evidence was as strong in opposition to the application as it was for it. Under these conditions, the trial court certainly did not abuse its discretion in overruling the application for a change of venue.

It is next contended that the trial court erred in allowing the jury to separate for the night. This separation was overnight during the adjournment of the trial. It was not after the case had been finally submitted to the jury for its consideration. Under the law of this state the matter of keeping, the jury together before final submission of the issues to them is a matter within the discretion of the trial court, as provided in Title 22, § 853, O.S.A. 1941, which provides in part as follows:

“The jurors sworn to try an indictment or information, may, at any time before the submission of the cause to the jury, in the discretion of the court, be permitted to separate, or to be kept in charge of proper officers.”

The foregoing statute has been construed in keeping with the plain language therein employed in Nowabbi v. State, 31 Okla. Cr. 158, 237 P. 868, wherein this court said:

“Where, in the trial of a capital case, a jury is permitted to separate prior to the final submission of the cause, the burden is on the defendant to show prejudice or misconduct likely to result in prejudice. When a jury is permitted to separate after the case is finally submitted to them, prejudice is presumed and the burden is on the state to show that no prejudice in fact resulted.”

In Wilcox v. State, 69 Okla. Cr. 1, 99 P. 2d 531, 536, it is further said:

“Before the final submission of a case the legal presumption is that jurors perform their duty in accordance with the oath they have taken, and that presumption is not overcome by proof of the mere fact that during an adjournment of the trial the jurors were permitted to separate. The defendant must affirmatively show that by reason thereof he was denied a fair and impartial trial, or that his substantial rights were prejudiced.”

The latter case is cited with approval in Gallagher v. State, 81 Okla. Cr. 15, 159 P. 2d 562. The record shows the defendant completely failed to sustain the burden placed upon him by law.

Finally, the defendant contends that the special prosecutor made remarks in his closing argument which constituted prejudicial error. The Attorney General correctly states that the result of such a contention depends upon the facts in each particular case. He relies upon Kennamer v. State, 59 Okla. Cr. 146, 57 P. 2d 646, 648, syllabus 12, as follows:

“The right of argument contemplates a liberal freedom of speech, and the range of discussion, illustration, and argumentation is wide. Counsel for both the state and the defendant have a right to discuss fully from their standpoint the evidence and the inferences and deductions arising from it. It is only when argument by counsel for tbe state is grossly improper and unwarranted upon some point which may have affected defendant’s rights that a reversal can be based on improper argument.”

He also contends that it appears from the record that some of the remarks were provoked and fall within the rule of Woodruff v. State, 56 Okla. Cr. 409, 41 P. 2d 129, reading as follows:

“Where improper remarks made by a prosecuting attorney to a jury have been provoked by and are in reply to remarks made by defendant’s counsel, such remarks of the county attorney are not ordinarily ground for new trial.”

In this contention he finds some support in the record. This court said, in Turpen v. State, 89 Okla. Cr. 6, 204 P. 2d 298, 299:

“Counsel for state and defendant are entitled to great latitude and a wide freedom of expression in presenting their arguments to the jury. However, this latitude given to counsel does not authorize the use of prejudicial statements calculated to inflame the passion of the jury.”

In this connection the closing argument of the special prosecutor transcends and goes far beyond the rule announced in the case relied on by the Attorney General to sustain the special prosecutor’s conduct. The prosecutor made unnecessary statements reflecting on the professional integrity of counsel for the defendant insinuating that the defendant’s statement relative to the provocation of his rebuke administered to Riley about being careful in his association with Mrs. Whaley because Riley had a venereal disease became a factual issue in the case only after the defendant had discussed the matter with counsel for the defendant. This was highly prejudicial and improper. Counsel should refrain from casting reflections upon opposing counsel. Rogers v. State, supra. Further counsel for the defendant informed the jury that the district judge had denied the defendant bail which was highly improper, since it necessarily led the jury to believe in the defendant’s guilt. It was not an issue in the trial, and was entirely irrelevant. Moreover, he injected the fact that the codefendant’s attorneys had attempted to get Tommie Burke’s case dismissed which attempt was overruled by the trial court. But he did not stop there. He went so far as to cite the proceedings in relation thereto and the outcome thereof upon application for bail to the Criminal Court of Appeals. Thus leading the jury to believe the state had a strong case against Burke. Furthermore, he criticised defense counsel to the jury for his failure to introduce into the State Senate a bill to abolish “beer joints” in Oklahoma. This likewise was irrelevant and not pertinent to the issues involved. This court has held it improper in a closing argument to present facts not pertinent to the issues and which are not in evidence. Green v. State, 39 Okla. Cr. 430, 266 P. 512; Bilton v. Territory, 1 Okla. Cr. 566, 99 P. 163; Murray v. State, 24 Okla. Cr. 113, 217 P. 891; Thomas v. State, 34 Okla. Cr. 63, 244 P. 1116; Cline v. State, 57 Okla. Cr. 206, 47 P. 2d 191, and numerous other cases of similar import. Moréover, the special prosecutor repeatedly expressed his personal opinion as to the defendant being a coldblooded brutal murderer which the record does not support, and which statements have been repeatedly condemned by this court. Glasgow v. State, 88 Okla. Cr. 279, 202 P. 2d 999; Thurmond v. State, 57 Okla. Cr. 388, 48 P. 2d 845, and many other cases. Then, too, the special prosecutor commented on the failure of the defendant to produce his codefendant as a witness. Where a severance is granted as by law provided and thus they would be separately tried, such comment was not legitimate argument as was said in Dunkin v. State, 51 Okla. Cr. 457, 2 P. 2d 285 as follows :

“Where defendants are charged in the same information and tried separately, a codefendant is a competent witness only with his own consent; where defendants are charged in the same information and tried separately, a codefendant may not be required to testify while action is pending against him; comment on defendant’s failure to call his codefendant, not on trial, as a witness is not legitimate argument. * * *”

But such comment is not necessarily reversible error unless it may influence the jury’s verdict in a close case. Simpson v. State, 40 Okla. Cr. 58, 266 P. 783, and wherein it was further stated at page 65 of 40 Okla. Cr., page 785, of 266 P.:

“Complaint is also made that there is misconduct of the county attorney in his argument in commenting on the failure of defendant to call his codefendant, Roy Williams, as a witness. A codefendant, against his will, cannot be compelled to testify, and, where two or more persons are included in the same information, and are tried separately, the failure of a defendant to call his codefendant as a witness is not a circumstance from which unfavorable inferences may be drawn nor any legitimate argument against a defendant made. The comment is misconduct. Slight investigation by the county attorney will inform him that this comment is not legitimate argument. Buxton v. State, 11 Okla. Cr. 85, 143 P. 58; Irvin v. State, 11 Okla. Cr. 301, 146 P. 453; Hopkins v. State, 11 Okla. Cr. 385, 146 P. 917; Wells v. State, 29 Okla. Cr. 11, 231 P. 1087.”

Moreover, the special prosecutor argued that if the defendant had stayed in Pittsburg county the taxpayers .of Latimer county would have been several hundred dollars better off. This was not an arguable issue in the case which was palpably plain to counsel, and could have been made only for tbe purpose of prejudicing tbe jury. Appeals to prejudices based upon a jury’s county loyalty to a resident decedent in a homicide case as against a defendant a resident of an adjacent county, combined with an appeal to tbe jury’s normal antipathy to paying taxes, could only be calculated to prejudice tbe defendant. These and other prejudicial statements constitute a part of the closing argument by the special prosecutor for the state. This argument went far beyond the bounds of propriety. Here the special prosecutor became a partisan and not an officer of the court. Prosecutors both elected and special are not to play the role of a partisan but, as is said in Vickers v. State, 1 Okla. Cr. 452, 98 P. 467, 473:

“A public prosecutor is presumed to act impartially in the interest only of justice. If he lays aside the impartiality that should characterize his official action, to become a heated partisan, and by vituperation of the prisoner, and appeals to prejudice, seeks to procure a conviction at all hazards, he ceases to properly represent the public interest, which demands no victim, and seeks no conviction through the aid of passion, sympathy, or resentment. The only way to secure fair trials is to set aside the verdicts so procured.”

Special prosecutors are bound by the same rules of conduct in arguments as are regular prosecutors, as was said in Watson v. State, 7 Okla. Cr. 590, 124 P. 1101:

“When special counsel assists a prosecuting attorney in the trial of a criminal case, such counsel represents the county attorney and is governed by the same rules of propriety.
“However strong the prosecuting attorney’s belief may be of the prisoner’s guilt, he must remember that, .though unfair trials may happen to result in doing justice in particular cases, yet justice so obtained is dangerous to the whole community. It matters not how guilty a person on trial charged with crime may be, he is entitled to a fair and impartial trial, and a judgment of conviction for murder, and the imposition of a life sentence, would be as great a wrong to society if unfairly secured, although the accused might be guilty, as it would be for such person to go unwhipped of justice.”

That the closing argument of the special prosecutor was improper cannot be denied. Notwithstanding the prejudicial nature of the cross-examination resorted to in the trial of this case, and the prejudicial nature of the argument of the special prosecutor, in light of the whole record, we believe the argument in no way influenced the jury’s verdict of guilty, and if the case were tried over ever so many times the conclusion would be reached that the killing was the result of a drunken brawl, and that the defendant used more force than was necessary to repel the assault made upon him and his guilt therefore would be inescapable. However, we have no doubt that the vicious nature of the cross-examination, the appeal to prejudice, sympathy, and reference to matters clearly outside the record resorted to in the argument, influenced the jury in fixing the penalty. We are constrained to believe if the defendant had been accorded that measure of fairness which the law entitles him to, the jury would not have fixed his penalty at 25 years in the penitentiary. In fact, we doubt seriously that had it not been for the cross-examination and the incendiary argument made by the special prosecutor that they would have given him much more than four years, the minimum provided by the statute for first degree manslaughter. Title 21, § 715, O.S.A. 1941. Furthermore the record clearly shows the killing was not intentional, but that more force was used than was necessary to repel the assault, hence under the authority vested in this court by Title 22, § 1066, O. S. A. 1941, the judgment and sentence herein imposed should be and hereby is modified to six years in the State Penitentiary; and as so modified the judgment and sentence is affirmed.

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