author: CHAPPELL, J.

text:
    CHARLEY CLOUD v. STATE.
    No. A-6395.
    Opinion Filed Jan. 19, 1929.
    (273 Pac. 1012.)

      R. P. White and L. V. Reid, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Le Flore county on a charge of burglary in the second degree, and was sentenced to imprisonment for a term of two years.

The information properly charged that Calvin Johnson, Charlie Cloud, Jim Weaver, and Hardes Ingram, did in Le Flore county, and state of Oklahoma, commit the crime of burglary in the second degree. Before the beginning of the trial the defendants duly demanded a severance, which severance was granted. The state thereupon elected to try the defendant Charlie Cloud.

The defendant in his motion for new trial alleges and sets out six separate errors claimed to have been committed by the trial court. In the brief filed all the errors except three are apparently waived, since they are not discussed.

The first error relied on is error of the court in admitting the testimony of witness Calvin Johnson, whose name was not indorsed on the information. Section 2696, Comp. St. 1921, provides: That, where two or more persons are included in the same indictment or the same information, the court may at any time before the defendants have gone into their defense, upon the application of the county attorney, direct any defendant to be discharged from the indictment or information that he may be compelled to be a witness for the state.

This court, in the case of Cudjoe v. State, 12 Okla. Cr. 246, 154 P. 500, L. R. A. 1916F, 1251, held that every defendant jointly indicted or informed against -is charged, under the statute, with notice that the state may, if it so desires, use a codefendant as a witness against him.

In the case of Whitworth v. State, 32 Okla. Cr. 200, 239 P. 930, Judge Edwards says: “The use of witnesses in misdemeanor cases whose names have not been indorsed on the information has been held reversible error, though in felony cases the rule is different.”

We therefore hold that the appearance of the name of Calvin Johnson, on the face of the information, as a co-defendant, answered every requirement of the statute, and that it was not prejudicial' error to allow said witness, Calvin Johnson, to testify without first having the name of such witness indorsed on the information.

The defendant’s second assignment of error is that the court erred in admitting certain other testimony which was prejudicial. The state called as a witness in the trial of the case, Hardes Ingram, one of the defendants, and Tiller Stenson. The purpose of the offering of the testimony of these witnesses appeared to be to impeach the testimony of defendant Ingram.

In the case of Thomas v. State, 13 Okla. Cr. 414, 164 P. 995, this court says: “Contradictory statements made by a codefendant after the commission of the crime, not shown to have been made in the presence or hearing of the defendant being separately tried, are in no sense original evidence against the latter. Where such statements relate to material matters and proper foundation is laid, they may be shown and may be considered by the jury only for the purpose of affecting the credibility of the witness making them. And when requested it is the duty of the court to clearly inform the jury that such statements cannot be considered as independent substantive evidence against or in favor of the defendant, but only for the purpose of affecting the credibility of the witness. Refusal of the court to instruct upon this issue after such request is error.” The record discloses that the defendant made no such request, but simply objected to the introduction of evidence for any purpose and took exception to the ruling of the court.

Under the authority of the case last cited there was no error in admitting this testimony. In the absence of any request for such instruction, it was not error for the court to fail to instruct the jury that such evidence could be considered only for the purpose of impeachment. There is plenty of evidence of defendant’s guilt without considering the testimony of these witnesses. And there is no reason to suppose that the jury considered this evidence in reaching its. verdict, for the reason that they already had an abundance of evidence on which to base their verdict of guilty.

In the case of Carroll v. State, 24 Okla. Cr. 26, 215 P. 797, the court says: “A judgment of conviction will not be reversed solely because of the admission of incompetent testimony in rebuttal unless it appears to this court, after an examination of the entire record that the admission of such testimony has probably resulted in a miscarriage of justice or deprived the defendant of some constitutional or statutory right, to his prejudice.” The second assignment of error is without merit.

The defendant’s third assignment of error is that the court erred in giving instruction No. 9 as follows: “The law does not require the jury to find beyond a reasonable doubt that the testimony of an accomplice has been corroborated. All that is required is that there must be some other evidence tending to connect the defendant with the commission of the crime charged against him.”

In the case of Jones v. State, 10 Okla. Cr. 216, 136 P. 182, 137 P. 121, this court says: “The law does not require the jury to find, beyond a reasonable doubt, that the testimony of an accomplice has been corroborated. All that is necessary is that there must be some other evidence tending to connect the defendant with the commission of the crime charged against him.”

It will be observed that the language used by the court in instruction No. 9 complained of is the precise language used by the court in the case of Jones v. State, 10 Okla. Cr. 216, 136 P. 182, 137 P. 121. Instruction complained of correctly states the law.

The evidence introduced on the part of the state conclusively establishes the guilt of the defendant, and a careful reading of the record shows that he received a fair trial and that no error was committed prejudicial to his' rights.

The judgment appealed from is therefore affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


source: Caselaw Access Project

author: EDWARDS, P. J.

license: Public Domain

text:
    Ex parte LEROY DANIELS.
    No. A-7264.
    Opinion Filed Jan. 19, 1929.
    As Modified, Jan. 19, 1929.
    (273 Pac. 1010.)

      J. A. D. Collins, for petitioner.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges: That he is unlawfully restrained of his liberty by the sheriff of Oklahoma county, and that such restraint is based upon a commitment issued by a justice of the peace of Oklahoma City. That a complaint charging him with the crime of reckless driving was filed in said justice court, and your petitioner was arrested upon the warrant issued thereon and has been unable to make bond. That the statutes upon which said complaint is predicated, to wit, section 2, chap. 16, of the Session Laws of Oklahoma 1923, is unconstitutional and void. That petitioner has applied to a district judge of Oklahoma county for a writ of habeas corpus, which has been denied.

That part of chapter 16, Session Laws 1923, upon which the prosecution against petitioner is instituted, in part reads: “Any person * * driving * * * any vehicle * * * designated in section 1, of this act, upon said highways shall * * * drive * * * same in a careful and prudent manner, and at a rate of speed not greater than is reasonable under the existing circumstances, and having due regard to the traffic and use of the highway, and having due regard for the safety of pedestrians or property, and drivers or operators of other vehicles. * * * No person * * * shall operate, propel or drive a motor vehicle as defined in section 1, of this act, on any highway at such rate of speed as to endanger the life or limb of any other person or persons, or the safety of any property. * * * Provided, further, that any person or persons violating any provision of section 2, of this act, shall be guilty of a misdemeanor for the first offense and shall be fined not less than $25, nor more than $100, or imprisoned in the county jail for not less than ten nor more than thirty days, or by both such fine and imprisonment. * * *”

The amended complaint alleges that defendant, at a certain street intersection in Oklahoma City, “* * * did then and the/re unlawfully, wilfully and. wrongfully, drive and operate a motor vehiple upon and over the public highway and at or about the intersection of the streets hereinbefore designated, * * * in such a reckless manner and at such an excessive rate of speed and without having due regard for the safety of pedestrians or property, and in such a manner as to endanger the life and limb of other persons and the safety of their property.”

' The sole contention here made is that the statute in question is violative of the state Constitution as being too indefinite and uncertain to be enforceable. The contention made by petitioner is sustained by the case of State v. Lantz, 90 W. Va. 788, 111 S. E. 766, 26 A. L. R. 894, Hayes v. State, 11 Ga. App. 371, 75 S. E, 523, and the case of Killebrew v. State, 12 Ga. App. 725, 78 S. E. 205, and to some extent by the case of State ex inf. Crow v. West Side St. R. Co., 146 Mo. 155, 47 S. W. 959; Griffin v. State, 86 Tex. Cr. R. 498, 218 S. W. 494; Russell v. State, 88 Tex. Cr. R. 512, 228 S. W. 566. The following cases, in principle, sustain the validity of the statute: State v. Schaeffer, 96 Ohio St. 215, 117 N. E. 220, L. R. A. 1918B, 945, Ann. Cas. 1918E, 1137; Gallagher v. State, 193 Ind. 629, 141 N. E. 347, 29 A. L. R. 1059; Com. v. Pentz, 247 Mass. 500, 143 N. E. 322; Ex parte Daniels, 183 Cal. 636, 192 P. 442, 21 A. L. R. 1172; U. S. v. Oglesby Grocery Co. et al. (D. C.) 264 F. 691.

This court, in the case of Missel v. State, 33 Okla. Cr. 376, 244 P. 462, held invalid that portion of section 2, chap. 16, Session Laws 1923, which attempted to define a crime for any person driving a motor vehicle to approach any street intersection at a rate of speed greater than 15 miles per hour where the driver did not have an unobstructed view of at least 150 feet, as being indefinite, uncertain, and unintelligible. This, however, was for the reason that the. provision requiring an unobstructed view did not sufficiently specify the condition or place of view. The operation of motor vehicles in a reckless manner, resulting in death, however, has been referred to in the case of Nail v. State, 33 Okla. Cr. 100, 242 P. 270; Mayse v. State, 38 Okla. Cr. 144, 259 P. 277; Brock v. State, 39 Okla. Cr. 162, 263 P. 1115.

This court has adopted a liberal construction in the definition of public offenses. In the case of Stewart v. State, 4 Okla. Cr. 564, 109 P. 243, 32 L. R. A. (N. S.) 505, Richardson, speaking for the court, said: “That it is the exclusive province of the Legislature to declare what shall constitute a crime, and that neither the court nor the jury have any such power, is undoubtedly true. But the statement of that fact alone furnishes no answer to the question raised. Ordinarily the Legislature speaks only in general terms, and for that reason it often becomes the duty of the court to construe and interpret a statute in a particular case for the purpose of arriving at the legislative intent, and of determining whether a particular act done or omitted falls within the intended inhibition or commandment of such statute. And the law making power in this state has laid down for the courts in section 2027, Snyder’s Comp. Laws Okla., a rule for the construction of criminal statutes, as follows: ‘The rule of the common law that penal statutes are to be strictly construed has no application to this Code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.’ Section 2020, Snyder’s Comp. Laws Okla., defines a crime or public offense in substance to be an act or omission forbidden by law to which a punishment is annexed upon conviction. Now, in creating an offense the Legislature, we apprehend, máy define it by a particular description of the act or acts constituting it, or it may define it as any act which produces or is reasonably calculated to produce a certain defined or described result.”

In Fessler v. State, 12 Okla. Cr. 579, 160 P. 1129, this court upheld a conviction based on section 2793, Revised Laws 1910, being section 2287, Comp. St. 1921. This section provides that any person who willfully and wrongfully commits any act which grossly injures the person or property of another, or which grossly disturbs the public peace or health, or which openly outrages public decency and is injurious to public morals, is guilty of a misdemeanor. The contention was there made that the statute was void as indefinite and uncertain. The court said: “We think the common sense of the community as well as the sense of decency, propriety, and morality which most people entertain, is sufficient to apply the statute to each particular case, and point out what particular conduct is rendered criminal by it. That the conduct of which the defendant stands* charged and convicted is rendered criminal by this statute is so indubitably indicated by both common ■ sense and common morality as to make any argument in support of such conclusion wholly superfluous.”

Also in the case of Ex parte Westellison, 38 Okla. Cr. 207, 259 P. 873, a municipal ordinance was held invalid as being too indefinite and uncertain to apprise the ordinary mind what acts were forbidden, or the doing of which would constitute, an offense. The prosecution in that case was on an ordinance forbidding newsboys from calling their papers in a “loud” voice. It was there said: “The definition of a noise made by the voice as ‘loud’ or ‘ordinary’ and ‘usual’ is indefinite and uncertain; there is no standard of 'comparison or defi-’ nite character fixed such as to ‘annoy the public generally,’ or as to ‘disturb the peace,’ or ‘to the annoyance of the inhabitants,’ or like terms. * * *” It was suggested that, if a standard had been fixed such as “to disturb the public peace or public decorum” or “annoy the inhabitants,” the ordinance might be upheld.

We think the statute before us is free from the objection in both the Missel Case and the Westelison Case. Here a standard of comparison is fixed at: “* * * A rate of speed not greater than is reasonable under the existing circumstances, and having due regard to the traffic and use of the highway, and having due regard for the safety of pedestrians or property, and drivers or operators of other vehicles. * * *” The terms of the statute are general, but they are sufficiently definite under the rule stated.

The writ is denied.

DAVENPORT and CHAPPELL, JJ., concur.


author: PER CURIAM.

text:
    Ex parte HORACE THAMES et al.
    No. A-6013.
    Opinion Filed Jan. 19, 1929.
    (273 Pac. 380.)
    C. E. B. Cutler, for petitioners.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an original application of Horace Thames and Charles Tricart to be admitted to bail. At the time of filing the application, petitioners were admitted to bail.

The questions raised by the application have become moot, and the case is dismissed.


author: DAVENPORT, J.

text:
    F. G. GOODMAN v. STATE.
    No. A-6258.
    Opinion Filed Jan. 19, 1929.
    (273 Pac. 900.)
    Keller & Cameron and Brett & Brett, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Love county of the crime of grand larceny, and sentenced to imprisonment in the state penitentiary for a term of six months. Motion for new trial was filed and overruled, and defendant excepted, and has appealed to this court.

It appears from the record in this case that the defendant was regularly placed on trial for this offense on the 17th day of November, 1924; that the jury was impaneled, evidence was introduced, jury was instructed by the court, and argument of counsel had, and the trial conraleted about 5 or 6 o’clock on November 18, 1924; that the jury retired and considered the case for about an hour, when a written request was sent to the trial judge, asking in substance if they should take into consideration the intent, and the judge instructed them further, which instruction, omitting the address, is as follows:

“Answering the abo.ve interrogatory, you are referred to the general charge, paragraph V (5) wherein it is declared that the borrowing of money directly or indirectly, by an officer of the bank from the bank with which he is connected is itself larceny.”

Indorsed on said piece of paper appears the following:

“Defendant objects to giving further instructions to the jury. Overruled, exceptions allowed.
“W. F. Freeman.”

It further appears that the jury asked the court if they could give the defendant 39 days in jail, and the judge referred the jury to a paragraph of the general charge. The record further shows that about 9.30 or 10 o’clock that evening the court called the jury in the courtroom and instructed the foreman to deliver the papers to the baliff, and directed the jurors to retire for the night and return the next morning at 8:30, November 19, 1924, and to proceed to consider the case. And the jury returned as directed to the jury room, November 19, 1924, at 8:30 o’clock, and about 9 o’clock sent a note to the court asking if it could give the defendant 30 days in jail; whereupon, the judge directed the bailiff to have the jury seated in the jury box, and when it was seated the judge said to the jury:

“Gentlemen, this is all foolishness, you have been out on this case for several hours; there is no use asking foolish questions. You are discharged from the jury, and discharged from the panel. We have no use for you around the court. Go. and get your pay,” or words to that effect.

The attorneys for the defendant objected to the action of the court in discharging the jury, which objection was overruled, and defendant was allowed an exception. 0:n the 23rd day of November, 1925, the case was again called for trial, and the defendant filed a motion, in the nature of a plea of former jeopardy, which, omitting the caption, is as follows:

“Comes now F. G. Goodman, the defendant in the above entitled cause, and respectfully represents and shows to the Court that on the 17th day of November 1924, the defendant was tried upon the information filed herein, which said Information duly charged this defendant with the crime of larceny/; that at said time a jury was empanelled and sworn and testimony of witnesses for the State and for the Defendant was taken, and the case was argued by counsel for the State and for the defendant, and said jury was instructed as to the law in said case by the Honorable W. F. Freeman, one of the judges of the 8th Judicial District Court of Oklahoma, who presided at said trial; that thereafter, said jury retired to consider said case, and in a short time after their retirement they were permitted to return into open court and propound a question as to whether or not said jury could assess the punishment of the defendant at 30 days in the County Jail, and the Court, the said Honorable W. F. Freeman, referred them to the instructions, and without answering said question; that thereafter, said jurors submitted a written question to said Judge to the same effect. Upon receiving said written inquiry, the said Judge ordered the bailiff to bring said jury before him, which was done, and said judge informed the jury that they were propounding foolish questions and that they were discharged from further consideration of the case and that they were further discharged from the jury panel and ordered them to get their pay and go home; that while said order was being made and said statements were being made by said judge, counsel for defendant was attempting to make! objections to the discharge of the jury, and did then and there duly except to the action of the court in discharging said jury; that said jury was discharged over the objections and without the consent of the defendant; that they had had the case under consideration for less than six hours, and that no necessity existed for the said discharge.
“Defendant further says that he has caused several of the members of said jury to be summoned to testify in support of this plea, and here tenders the testimony of said jurors.
“Wherefore, the defendant prays for a hearing upon this plea and on consideration thereof, that he be discharged and that said Information be dismissed.
“F. G. Goodman.”

The plea of former jeopardy was sworn to by the defendant. The record discloses that a£~ the time the jury was discharged by Judge Freeman, a Mr. London was the court clerk who reported the case and kept a record of what occurred at the time the jury was discharged; that Mr. London died shortly thereafter and prior to the filing of the plea of former jeopardy; that his notes had not been transcribed and there was no one who could transcribe them.

The defendant introduced testimony to show what had occurred at the time the jury was discharged. C. W. Cameron testified, in substance, as follows: The court delivered his charge to the jury, and the jury retired to consider of its verdict between 5 and 6 o’clock in the afternoon of the 18th of November, 1924; the jury was discharged immediately after. convening on the morning of the 19th; I was the only attorney for the defendant who stayed in the courtroom all the time they were out; the jury went out for supper and never deliberated any before supper, and got back about 7:30 and went to the jury room, and about 9 or 9:30 retired for the night; the next morning the jury sent for additional information, and Judge Freeman called them in. The jury had written a request asking the court if they should take into consideration the intent, and Judge Freeman instructed them by calling their attention to the general charge. I was present and excepted to the additional instructions. The bailiff told the court the jury wanted to see him, they wanted additional information, and he told them to write it down, and they sent him a scrap of paper asking if they could give the defendant 30 days, and the court had the jury come in, and he said:

“Gentlemen, this is all foolishness, you have been on this case for several hours, and no use asking foolish questions. You are discharged from this jury and discharged from this panel. We have no use for you around the court.”

While the statement was being made the attorney for defendant arose and interposed an objection, and Judge Freeman, when he finished his tirade, said:

“You can make your record, and take your exceptions. Exceptions are allowed.”

The defendant was present at the time the jury was discharged. On cross-examination witness! stated the case was submitted to the jury in the afternoon, and the jury deliberated about 2% hours that night; the court then called them in and said he had been up a good deal lately, and told them to deliver the papers to the bailiff, and they did. The jury had asked the court for additional instructions with reference to the penalty and the court had answered them by referring them to a certain section in the general charge, saying they would find that information in that charge. The next morning they asked if they could give the defendant a jail sentence; this was the second time they had asked the court about the penalty. They did not deliberate that morning; they came in about 8:30, and, before the court convened, the bailiff came to the court and told him they wanted additional information; he had adjourned until 9 o’clock. He told the bailiff he would convene the court in a few minutes, and he did; he had the bailiff open court and had the jury come in; they had been in the jury room about 3’0 or 40 minutes. The jury did not report to the court how they stood, nor did they report they could not agree.

R. A. Keller, who was one of the attorneys for the defendant, testified in substance that he was in the courtroom sitting with the defendant on the bench when the jury was called in; he did not hear the conversation between the bailiff and the' court, and did not know what was going on until the jury was called in and took their seats; Judge Freeman remarked that it was all foolishness; that they were discharged; to go get their pay and go home. He immediately tried to object while he was talking to them. I could not get in a word, and did not have time to make any record; finally he finished and turned around and said, f

“Defendant can have his objection, and all exceptions he wants.”

The court seemed to become impatient with the jury, more or less in a rage, the way he talked to them. The jury immediately filed out and left. There was no report ; they had not been asked whether or not there was any likelihood of their arriving at a verdict, and they made no statement as to how they stood.

On cross-examinination witness stated he could not say whether or not a statement- was made at the time as to whether or not they could not agree. The jury had not said that morning they were unable to agree upon a verdict. On redirect examination, he stated the jury was not asked that morning as to whether or not they could agree upon a verdict, or were hung, or anything of the kind. They made no such statement to the court— none of them. The court had them brought in, and when they were seated he began asking them, instructing them, or lecturing them, as to the foolishness of that question.

Rutherford Brett, an attorney for the defendant, stated he remained in the courtroom until the case was submitted to the jury; he returned the next morning a few minutes after 9; that was the usual hour the court adjourned to; when he arrived at the courtroom that morning the jury had been discharged. On cross-examination he stated he arrived about 9 o’clock, and the first thing he learned when he got there was that the jury had been discharged in that case. The court had just convened and was transacting business. “I came directly to the courtroom when I arrived in town, and it could not have been more than 5 or 10 minutes after 9. It was not as late as 9:30.”

The state called as a witness J. S. Batson, who testified he was court clerk of Love county, Okla.; that at the trial of this case he was deputy clerk; that this record was kept by the court clerk, W. L. Richards. “I was in the courtroom when the jury was discharged. The jury went out to deliberate something like dark, I guess about 6 o’clock; immediately thereafter the case was closed, court recessed until 7:30, at which time the jury went out for deliberation; I don’t know what time it was, pretty late for the fall of the year; I don’t know when the court put them to bed; while I was there they called foir additional (instructions; I don’t .know (wha?t they wanted; I think they called twice that night; they reported they were unable to agree; I do not know whether that was that night or next morning; I believe it was the next morning; they did not report that; they came out and the judge asked them if they had agreed and they said they had not; I think they made the statement they could not get together; I would not be positive, that is my recollect. I could not state what time in the morning the jury was discharged, I could not be positive, however, the court was to set at 9, I would say about nine or after; I don’t remember, I could not say.”

On cross-examination he made the following statement: “I did not hear the jury tell the court previous to their discharge that they were unable to agree; I think I heard them say that next morning.”

The witness, in response to the following questions, gave the following answers :

“Q. That it would not be able to agree? A. They just asked to come out and he called them out and asked them if they had reached a verdict and they said, no; and he asked them if it would be possible, told them rather he would like to have them reach a verdict. If it was that time or the next, the one before I could not say. They retired again and came out later. I don’t know which time it was.
“Q. You think they came out twice? A. I know the statement was made, whether it was made the night before or not I could not remember. I can’t be positive.
“Q. You heard the court tell them it was foolishness, did you? A. I heard the court — I don’t know who stated it, he told them after they could not agree on the verdict, he told them to get up and get out of here, get their pay and go home. When I got through paying off the jury it was noon, I don’t know how long it took me to pay them off, but I know it was noon. Later, I saw the question submitted to the court about fixing the penalty at thirty days. The court told them to get out. I don’t know whether it was made in response to their question or not. I could not be positive that the court answered their question that morning.”

This is all the testimony necessary to refer to.

The first assignment of error is: “The court erred in overruling defendant’s plea of former jeopardy.” The defendant contends that he was duly informed against; a jury was duly impaneled, evidence instroduced, and jury instructed by the court, and the case argued by counsel for the state and defendant, and the jury retired to consider of its verdict; that the discharging of the jury by the court, over the objection of the defendant, was an abuse of discretion of the court and amounted to an acquittal for the same offense. Section 21, art. 2, of the Constitution of Oklahoma, is as follows:

“No person shall be compelled to give evidence which will tend to incriminate him, except as in this •Constitution specifically provided; nor shall any person, after having been once acquitted by a jury be again put in jeopardy of life or liberty for that of which he has been acquitted. Nor shall any person be twice put in jeopardy of life or liberty for the same offense.”

The defendant urges that the action of the court in discharging the jury over his objection was such an abuse of judicial discretion as to amount to an acquittal. 16 Corpus Juris, p. 254, § 408, in the last paragraph, states as follows. “The improper discharge of the jury after they have retired and considered their verdict, but before agreeing upon one, is equivalent to acquittal.”

The record in this case discloses that the court reporter making the original record died, and that it was impossible to get all the statements that occurred at the time the court discharged the jury, and it became necessary to introduce oral testimony of those who were present and interested in the case at the time the jury was discharged by the court. The testimony on behalf of the defendant’s plea of former jeopardy conclusively shows that the jury was called into the courtroom by the court after they had sent a note to the court asking if they could impose a sentence of 30 days upon the defendant, without the court answering the note, had the jury called into the courtroom, and when the jurors took their seat in the box, the court advised the jury that it was asking foolish questions, and discharged the jury from the case, as well as from the panel of the court, and told them to go home, and the defendant did not consent to the jury being discharged and objected to the action of the court. The state did not call the trial judge as a witness, nor the county attorney, or the court clerk who was making the record at the time the jury was discharged. The state did call a witness who was a deputy court clerk at the time, who identified the minutes of the court made by the clerk, who testified to finding two entries on the minutes of the court clerk relating to the F. G. Goodman Case; one of the entries showing the jury discharged, failed to agree, the case continued. The witness for the state did not make these entries shown, but stated he was present in the courtroom when they were made by the iclerk. There seem to have been two entries with reference to the jury being discharged, as shown by the testimony of the court clerk, who testified on behalf of the state. The testimony all tends to show that the jury did not advise the court that it could not agree, nor did they make any statement to the court they could not agree. The record is silent as to whether or not when the court ordered the jury brought into the courtroom he made inquiry as to whether or not they had or could agree. All of the testimony tends to show that when they sent to the court and asked if they could give the defendant 30 days’ jail sentence, he had them brought in by the bailiff and informed them they were asking foolish questions, and discharged the jury from the case and from the panel, and directed the members of the jury to get their pay and go home. Some of the testimony tends to disclose that the court seemed to be irritable and seemed to be angered by the action of the jury.

The question to be determined is, Was the action of the court such an abuse of discretion as to operate as an acquittal of the defendant? The testimony shows that the jury had not been iconsidering the case for any great length of time,' and did not consider it very long after they returned to the jury room on the morning of the 19th of November, 1924, when the jury was called in by the court and discharged. The court did not attempt to answer the jury on the question as to whether or not they could give the defendant 30 days in jail, but, instead of answering the question, discharged the jury. The question argued and urged by the defendant is not a new question in this state. In the early territoral days, in the case of Schrieber v. Clapp, 13 Okla. 218, 74 P. 317, Judge Burford, speaking for the Supreme Court of Oklahoma Territory, said:

“The general rule is that the prisoner has been put in jeopardy when he has been put upon trial before a court of competent jurisdiction, upon an indictment or information sufficient to sustain a conviction, and the jury has been empanelled and sworn to try the case, and the jury is discharged without sufficient cause, and without the defendant’s consent; and such discharge'of the jury, although improper, results in an acquittal of the defendant.” Cooley, Const. Lim. (6th Ed.) 399; Teat v. State, 53 Miss. 453, 24 Am. Rep. 708; Whitmore v. State, 43 Ark. 271.

Judge Furman, in Loyd v. State, 6 Okla. Cr. 76, 116 P. 959, adheres to the rule laid down in the case of Schrieber v. Clapp, supra.

In Gillespie v. State, 168 Ind. 816, 80 N. E. 835, the court makes the following statement:

“The following cases and authorities are in harmony with our own decisions, as they hold or affirm the doptrine that in a criminal prosecution the unnecessary discharge of the jury, after” they have “been empanelled and sworn, without the consent of the defendant, operates as an acquittal” — citing a long list of authorities.

In State v. Frisbee, 8 Okla. Cr. 406, 127 P. 1091, this court reaffirmed its former rulings, and, after quoting article 21, § 2, Okla. Const., stated “that this provision expressly declares that no person who has been once acquitted by a jury shall be again put in jeopardy of life or liberty for that of which he has been acquitted, and the Constitution goes further and in express terms provides: ‘Nor shall any person be twice put in jeopardy of life and liberty for the same offense.’ All authorities agree that when a jury is sworn jeopardy attaches. Under the latter clause of our Constitution, if jeopardy has once attached, a defendant cannot be placed again in jeopardy for the same offense, unless the jury were necessarily discharged, or unless the defendant agreed to their discharge, or unless a new trial is granted him upon his request” — citing Loyd v. State, 6 Okla. Cr. 76, 116 P. 959.

In the case of State v. Turpen, 54 Or. 230, 103 P. 439, the Oregon Supreme Court, in discussing this question, says: “It has been repeatedly held that, whether the discharge of the jury arose from the arbitrary act of the court, or from some mere whim or caprice of judge or jury, or from some accident or blumder, it was immaterial; in either case the result would be the same

—the discharge of the defendant,” and proceeds to quote from the case of Teat v. State, supra: “But if an acquittal would ensue by operation of law from a discharge proceeding from tyranny, it must spring also from one proceeding from mere whim or caprice; and, if from the latter, then equally will it follow where the discharge of the jury has been caused by some blunder or accident with which the accused had no connection.”

It is argued by the state that the court can exercise ordinary discretion in the matter of discharging a jury; that if it appears reasonably probable the jury cannot agree after the expiration of such time as the court deem proper, the court may discharge the jury — citing section 2732, C. O. S. 1921, which is as follows :

“Jury Discharged, When. — Except as provided in the last section, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict, and tendered it in open court, unless by the consent of both parties entered upon the minutes, or unless at the expiration of such time as the court deems proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.”

It is not disputed that conditions may arise where the court would be justified in discharging the jury. It will be seen that authority to discharge exists under the statute, if at the expiration of such time as the couirt deems proper it satisfactorily appears that there is no reasonable probability that the jury can agree. The question as to whether they have been kept together, and where there is no reasonable probability they can agree, are judicial questions. These questions cannot be arbitrarily determined by the court, but must be determined by the court from the facts and circumstances of the particular case, taking into consideration the length of time the jury has been considering the ease and the probability of reaching a verdict. The court cannot, at his pleasure, without some facts upon which to predicate its actions, summarily discharge the jury before the jury has reported to the court it is unable to reach a verdict.

The state cited in support of its contention the case of Kent v. State, 8 Okla. Cr. 188, 126 P. 1040. The record in the Kent Case discloses a different state of facts to the record in this case. In the Kent Case, after the jury had been out something like 24 hours, reported in court, and each juror was interrogated by the court and each answered in his individual judgment it was impossible for the jury ever to arrive at a verdict in the case, the court after considering the facts discharged the jury and ordered the defendant to remain in custody. In this case the record fails to disclose that the jury reported to the court that it could not agree, nor did the court inquire of the jury as to the probability of its reaching a verdict. The court, upon receiving the note from the jury asking if it could impose a penalty of 30 days upon the defendant, called them into court without further proceedings, advising them they were asking foolish questions, discharged them from the jury and from the regular panel, and told them to go home.

We hold that the jury was unnecessarily discharged, over the protest and objection of the defendant, and that the discharge of the jury operated as an acquittal of the defendant, and that he could not be again placed upon trial for the same offense. Love v. State, 41 Okla. Cr. 291, 272 P. 1035.

The plea of former jeopardy was well taken and should have been sustained. For the reasons stated in this opinion^ the case is reversed and remanded, with directions to discharge the defendant.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    ROY WILLIAMS v. STATE.
    No. A-6677.
    Opinion Filed Jan. 26, 1929.
    (273 Pac. 1009.)
    T. H. Davidson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

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

Defendant was jointly informed against with one John Simpson, and was heretofore tried in the district court of Muskogee county, convicted and sentenced to serve a term of 31 years in the state penitentiary. He appealed to this court, and the iconviction was reversed and remanded. Williams et al. v. State, 35 Okla. Cr. 171, 249 P. 433. A severance was then had and defendant was tried separately, resulting in the conviction involved in this appeal, as stated. The latter trial was in December, 1926, and the sentence passed in January, 1927. The appeal was lodged in this court in June, 1927.

No briefs in support of the appeal have been filed and no appearance for oral argument made at the time the case was submitted.

Where an appeal from a conviction for a felony is prosecuted to this court and no briefs in support of it are filed nor oral argument made, this court will not search the record to discover some error upon which to predicate a reversal, but will examine the record for jurisdictional or fundamental errors and to ascertain if the evidence reasonably supports the verdict and judgment. We have done so in this case, and find no jurisdictional or fundamental error, and find abundant evidence to sustain the verdict and judgment.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    W. R. VANCE v. STATE.
    No. A-6332.
    Opinion Filed Jan. 19, 1929.
    (273 Pac. 1014.)

      Mac. Q. Williamson and Blanton, Osborn & Curtis, for appellant.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Garvin county on a charge of embezzlement and was sentenced to imprisonment for the term of one year and one day.

The information properly charges that the defendant did in Garvin county and state of Oklahoma .commit the crime of embezzlement.,

The defendant in his motion for new trial alleges and sets out seven separate errors claimed to have been committed by the trial court. In the brief filed, all the errors except two appear to have been waived, since they are not discussed.

The first ground of error urged is. that the court erred in giving a paragraph of the court’s instruction. In instructing the jury the court used the following language : “The charge made against the defendant in the information is embezzlement, and under the law embezzlement is the fraudulent appropriation of property by a person to whom it has been entrusted, and the statute provides that if any person, being an officer, director, clerk, servant, or agent of any association, society or corporation, public or private, fraudulently appropriates to any use or purpose not in the due and lawful execution of his trust, any property which he has in his possession or under his control by virtue of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement.” The defendant complains because the court in the next instruction used the following language: “Or secrete the same with the intent to appropriate it to such use or purpose, then and in that event you should find the defendant guilty, and fix his punishment at imprisonment in the state penitentiary for any period of time not more than five years”— leaving out of the secreting clause of the instruction the word “fraudulent.” The crime charged in the information was emblezzlement, and there is ample evidence in the record to support a conviction on that charge. The error in omitting the word “fraudulent” in describing the secretion of the embezzled property is not so material as to require a reversal.

The defendant’s second assignment of error is that the evidence is insufficient to support the verdict.

Defendant’s counsel in his opening statement admitted that the facts expected to be proved by the state were true and there would be no dispute in the facts of the case. The defendant signed a confession of guilt prior to the filing of the information. The defendant did not take the witness stand, and offered no evidence in his behalf, except some witnesses who testified as to his good character prior to the date of the commission of the crime. The evidence introduced on the part of the state was unquestioned and proved beyond any doubt the guilt of the defendant. The jury was merciful and fixed the punishment at one year and one day in the penitentiary, when under the evidence they would have been justified in giving the defendant the full limit of the law.

A careful reading of the record shows that he received a fair trial and that no error was committed prejudicial to his rights, and the judgment appealed from is therefore affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    D. T. TARKINGTON v. STATE.
    No. A-6373.
    Opinion Filed Jan. 26, 1929.
    (273 Pac. 1015.)
    McDonald & McDonald, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Bryan county on a charge of grand larceny, and was sentenced to imprisonment for the term of one year and one day.

The information properly charges that the defendant did, in Bryan county and state of Oklahoma, commit the crime of grand larceny.

The defendant in his motion for a new trial assigns six separate errors, claimed to have been committed by the trial court.

The first ground of error urged is that the venue of . the crime was not sufficiently proven by the state.

In the case of Spencer v. State, in an opinion by Judge Furman, this court held:

“Courts take judicial notice of the boundaries of counties and county lines and of the location of towns and cities therein.”

Judge Furman further says in this case:

“That even if this were not the law, the allegation that the building burglarized was about 6 miles east of Wapanucka was purely surplusage, and it was not necessary to prove it at all. The material allegation was that the building was the property of J. B. Wyrick and was situated in Atoka county.” Spencer v. State, 5 Okla. Cr. 7, 113 P. 224; Harvey v. Ter., 11 Okla. 156, 65 P. 837.

This court will take judicial notice of the fact that the town of Achille is in Bryan county, Okla. This court will also take judicial notice that a point about 10 miles east of Archille is in Bryan county, Okla. In this case the proof is sufficient to locate the venue in Bryan 'county, and that is all that is required.

It is next contended that the trial court erred in admitting a certain confession by the defendant to the county attorney of Bryan county. Under this assignment of error it is disclosed that the trial court excluded a certain alleged confession made to one Clark, the justice of the peace, before whom the preliminary information was filed in this case, on the theory that such confession was induced by a promise of leniency and by an assurance that, if the defendant did confess his guilt, he would be punished only by a fine of $50 and costs.

The trial court conducted a hearing in the absence of the jury on the question of the admission of this confession made to Clark, and also on a pretended confession made to the county attorney. The trial court excluded the confession made to Clark, but did admit the confession made by the defendant to the county attorney. It is contended by the defendant that, because the confession made to Clark was excluded under the assumption that it was made involuntarily, the presumption exists that any subsequent confession was made involuntarily, until the contrary is made to appear.

In the case of Berry v. State, 4 Okla. Cr. 202, 111 P. 676, 31 L. R. A. (N. S.) 849, this court held: “Prima facie any confession is admissible in evidence; and where its admissibilty is challenged by the defendant, the burden is on him to show that it was procured by such means or under such circumstances as to render it inadmissible, unless the evidence on the part of the state tends to show that fact.”

In this same case the court further says: “The admissiblity of a confession where it is challenged, is a question solely for the court after hearing, in the absence of the jury, all the evidence on each side respecting the circumstances under which the confession was made; and the court is vested with a large discretion in determining the matter.”

In the present case the court had the witnesses before him and could observe their demeanor on the stand, their general conduct and appearance, and their manner of testifying, and was in a much better position to form a just estimate of their truthfulness than we are. The evidence was conflicting, and the burden was on the defendant; and we cannot say upon this record that the court erred in admitting the evidence.

Under the third assignment of error it is contended that the defendant was required to give evidence against himself by reason of the alleged confession, without being warned of his right against self-incrimination while he was under arrest, and for that reason the alleged confession was inadmissible.

In the case of Mays v. State, 19 Okla. Cr. 102, 197 P. 1064, Judge Doyle well says: “The fact that the defendant was under arrest and in jail, and was not warned that any statement made by him might be used aginst him, will not affect the admissibility of any voluntary statement made by him, which would otherwise be competent.”

The fifth assignment of error, on the ground that the court failed to give an instruction on petit larceny, and in the sixth assignment, the failure of the court to give an instruction on circumstantial evidence, is without merit, for the reason that the evidence to support the charge of grand larceny was sufficient and no instruction was necessary.

We have carefully examined the record and the evidence offered in the case and find that the evidence is sufficient to support the verdict of guilty. The record shows that the defendant received a fair trial, and that no error was committed prejudicial to his rights, and the judgment appealed from is therefore affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    ARLIE ESLINGER v. STATE.
    No. A-7196.
    Opinion Filed Jan. 25, 1929.
    (273 Pac. 1024.)

      E. B. McMahan, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, wrs convicted in the district court of Cimarron county upon an information charging that the defendant did then and there unlawfully, fraudulently, and feloniously by fraud, .take, steal, and carry away one certain Whippet four-icylinder coach automobile, the property of Lester Burrow, and of the value of $775, with the fraudulent, unlawful, and felonious intent to deprive the owner thereof and to convert the same to his own use, and was sentenced to imprisonment in the state penitentiary for five years. Motion for new trial was filed, considered, and overruled, and exceptions duly saved, and the defendant has appealed to this court.

The testimony on behalf of the state, in substance, is as follows: Lester Burrow testified that he knew the defendant during the year 1927; that he was the owner of a Whippet coach; that on November 12, 1927, he entered into a contract with the defendant whereby the defendant was to deliver to him a Whippet coach automobile, on or before January 1, 1928; that witness turned over to the defendant a secondhand Whippet coach as a part payment for the new car, and was to pay $65 in money in addition to the secondhand car turned over to defendant, and was to have the option of 90 days' after the car was delivered to him to pay the $65. Witness stated that just before the first of the year he went over to defendant’s place and wanted him to go to Guymon that day to see Mr. Payne, manager of the Panhandle Automobile Company, whose headquarters were in Guymon; that he could not get the defendant to go with him, and about the first of the year he started over to see the defendant and learned that defendant had left his residence driving the secondhand Whippet car that witness had turned over to him; that, when the trade was made, defendant talked something about going into the garage business, and that the contract he made with witness had to be satisfactory to Mr. Payne.

Testimony further discloses that defendant was apprehended near Neosho, Mo., and there gave the officers information as to the disposition he had made of the car he received from Burrow. The record discloses that defendant had been making sales of cars for Mr. Payne, of the Panhandle Motor Company, which Mr. Payne represented and getting commissions upon cars he found buyers for. Witness testified' defendant was not an agent for the company, but where he brought a buyer to them and a sale was made the defendant was paid a commission. Mr. Payne stated defendant had found several buyers for the company.

The prosecuting witness stated that defendant did not state at the time he delivered the car to him that he was agent for Bob Payne, but did tell him he would get a new car through Bob Payne; that the car would be delivered about the first of the year, if not before. The prosecuting witness further stated that he turned the car over to Mr. Eslinger pursuant to the terms of the contract entered into between him and the defendant on November 12, 1927, and that he had no further claim on the car he turned over to Mr. Eslinger and did not consider it was his car any longer; that when he turned it over he parted with the title as well as the possession of the car. He did not know of the defendant finding buyers for any other cars after he and defendant entered into the contract for the new car which he was to receive for his old car and the $65. Witness further stated he called on Mr. Payne and was advised that he had nothing to do with the contract and after that he made several trips to see the defendant and never could find him at home.

Witness on redirect examination stated when he parted with the possession of the car he did not know he was parting with his title to the defendant, but he parted with it on the credit of the Panhandle Motor Company, of which Mr. Payne was manager. The defendant stated to the witness that he would deliver the written contract he had entered into to Mr. Payne the next day.

This is, in substance, the testimony offered by the state. At the close of the state’s testimony, defendant made the following request: “Comes now the defendant and requests the court to direct the jury to return a verdict of not guilty for the reason that the evidence is insufficient to establish the guilt of the defendant of the crime charged or of any other public offense and for the further reason that there is a fatal variance between the information and the evidence in that the evidence shows if any crime was committed it was the crime of obtaining property under false pretense and not the crime of larceny.”

The request of the defendant to direct the jury to return a verdict of not guilty was overruled, and defendant duly excepted. The question to be determined is, the sufficiency of the evidence to sustain the verdict. There is no conflict in the testimony. The defendant offered no proof as to the transactions between the prosecuting witness Lester Burrow- and himself. The defendant was charged and convicted of stealing the automobile of the prosecuting witness. It is urged by the defendant that the fact that the prosecutor entered into a written contract to sell a secondhand car for a new car and to pay $65 additional for the new car, which was to be delivered the 1st of January, 1928, and the money to be paid at that time or to be paid within 90 days, and the prosecuting witness delivered his car to the defendant under his contract, is not sufficient to sustain a conviction of larceny.

Section 2101, C. O. S. 1921, in defining larceny, reads: “Larceny is the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof.”

Section 2103, C. O. S. 1921, defines the degrees of larceny: “Larceny is divided into two degrees; the first of which is termed grand larceny, the second petit larceny.”

Section 2104, C. O. S. 1921, reads as follows: “Grand larceny is larceny committed in either of the following cases: First. When the property taken is of value exceeding twenty dollars. Second. When such property, although not of value exceeding twenty dollars in value, is taken from the person of another. Larceny in other cases Is petit larceny.”

Section 2120, C. O. S. 1921, reads as follows: “Stealing Automobile. Any person in this state who shall steal an automobile or other automotive driven vehicle shall be guilty of a felony, and upon conviction shall be punished by confinement in the state penitentiary for a term of not less than five (,5) years, nor more than twenty (20) years.”

In Newcomb v. State, 23 Okla. Cr. 172, on page 184, 213 P. 900, 905, this court said: “In this connection it is contended that the information charged both grand larceny under sections 2101 and 2104, Compiled Statutes 1921, and larceny of an automobile under section 2120, Id. The latter statute is equivalent in its terms to section 2116, Compiled Statutes 1921, relative to the larceny of live stock.”

It is urged by the defendant that he should not be found guilty and sentenced to serve a term of five years in the penitentiary, or for any other period of time upon mere presumption of the prosecuting witness, and he contends that the mere presumption is all that was shown in this case, and that the presumption was not well founded. The defendant further urges that the only offense represented and relied upon by the prosecuting witness was the statement defendant claims he was taking the contract to Mr. Payne or that the contract had to be all right with Mr. Payne, and that he would deliver the new car through Payne on or before January 1, 1928.

The defendant is presumed to know the consequences of his own acts, and his intent must be judged by his acts. Up until the time of his arrest at Neosho, Mo., so far as the record discloses, he had no communication with the witness from whom he secured the car, nor did he make any effort to' return the car or to deliver to the witness a new car that he was to have delivered to him. It is argued by the defendant at length and with great force, that the state failed to prove fraud on the part of the defendant in obtaining the consent of the owner to give possession of the car, which was taken away by him and sold.

We hold that the proof in this case shows conclusively that the defendant, If he ever intended to comply with the contract, clearly violated thé terms of the same by converting the car taken to his own use.

The testimony in this case clearly shows that the defendant, when he got possession of the car, intended to appropriate it to his own use and deprive the owner of his property. No effort is made by the defendant to show when he got possession of the prosecuting witness’ car he attempted to carry out, or intended to carry out the contract which he made with the prosecuting witness when he got possession of the car. Every act of the defendant as disclosed by the record subsequent to his getting possession of the car shows that he did not intend to comply with his contract.

Some complaint is made to the court’s instructions, but upon a careful examination of all the instructions we fail to- find such material errors as would require a reversal. The instructions, considering them in their entirety, fairly stated the law applicable to the facts in this case. It is urged by the defendant that the court erred in refusing to give instructions requested by him, but upon an examination, and considering all of the instructions together, we find there is no merit in the defendant’s contention.

The defendant also urges that the court erred in not properly admonishing the jury as to their duties while they were considering their verdict, and permitting the jurors to separate after the final submission of the case and before they had agreed upon a verdict, and in permitting them to take rooms at the hotel and be left without a sworn bailiff.

This question has been before this court before in many cases. In Nowabbi v. State, 31 Okla. Cr. 158, 237 P. 868, this court said: “After the case is finally submitted to the jury, if they are permitted to separate, the presumption is that the separation was prejudicial, and in such case a judgment of guilty should be reversed, unless the state shall satisfactorily show that the defendant was not prejudiced thereby.” Chance v. State, 5 Okla. Cr. 194, 113 P. 996; Horn v. State, 13 Okla. Cr. 354, 164 P. 683; and numerous other cases.

In this case we think the trial court manifestly abused its discretion in failing to have a bailiff properly sworn and in admonishing the jury as to their duties while considering the verdict, and, while this was an abuse of discretion, it is we think not necessarily reversible, in the absence of any showing of prejudice to the defendant.

Upon the motion for a new trial, the state called several witnesses to show that the rights of the defendant had not been prejudiced by reason of the jury separating and being left without a sworn bailiff. The court, after hearing the evidence, held the rights of the defendant had not been prejudiced by reason of the fact that the jury separated and roomed at the hotel over night without a sworn bailiff. A careful examination of the record shows the defendant was not prejudiced by the action of the court in permitting the jury to retire to the hotel without admonishing them of their duties without a sworn bailiff, where the jury retired and remained all night without the presence' of the bailiff.

Upon a consideration of the entire case, we are convinced that the defendant was accorded his full constitutional rights and had a fair and impartial trial. The evidence is sufficient to sustain the verdict.

The case is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    Ex parte PATRICK POWELL.
    No. A-7275.
    Opinion Filed Feb. 2, 1929.
    (273 Pac. 1029.)

      Williams & Murrah, for petitioner.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges that he is restrained of his liberty by the sheriff of Oklahoma county for delivery to the agent of the state of Texas upon a requisition from the Governor of that state; that such requisition has been honored, and the warrant of the Governor of this state for the delivery of petitioner has been issued and served upon petitioner, who is in custody thereby.

Petitioner alleges that such restraint is illegal; that he is not guilty of any crime in the state of Texas; and that the prosecution in that state is not in good faith. It appears from the petition, the return, and the exhibits that petitioner is charged in Midland county, Tex., with the crime of removing mortgaged property. There are no defects in the requisition or proceedings. It is not denied that petitioner was in the state of Texas at the time of the alleged commission of the offense, or that he removed mortgaged property from that state, but the claim is made that it was removed in good faith. In an extradition proceeding, the guilt or innocence of the defendant of the offense charged in the demanding state is not a question that can be raised by habeas corpus, as is here sought to be done. Ex parte La Vere, 39 Nev. 214, 156 P. 446; Williams et al. v. Robinson, 72 Colo. 484, 212 P. 485; Pierce v. Creecy, etc., 210 U. S. 387, 28 S. Ct. 714, 52 L. Ed. 1113.

The writ is denied.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    ELIJAH FREEMAN v. STATE.
    No. A-6493.
    Opinion Filed Feb. 2, 1929.
    (273 Pac. 1029.)
    E. I. Saddler and A. T. Hall, for plaintiff in error.
    Edwin Dabney, Atty. -Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of manslaughter in the first degree, and his punishment fixed at 35 years in the state penitentiary.

The record discloses that on August 21, 1926, defendant, a negro, shot and killed one Milton Jackson, another negro, in the city of Tulsa. The judgment was entered October 2, 1926; the appeal was lodged in this court in February, 1927. No briefs in support of the appeal have been filed, and no appearance for oral argument was made at the time the case was submitted.

Where an appeal from a conviction for a felony is prosecuted to this court, and is not supported by brief or oral argument, this court will examine the record for jurisdictional or fundamental errors, and will read the evidence to ascertain if it reasonably supports the verdict and judgment; if no such errors appear, and the evidence supports the verdict and judgment, the case will be affirmed.

On account of the gravity of the case, we have examined the record with care, and find no material error. The evidence discloses that on the date charged the deceased was engaged in window washing, and defendant came by, and some bantering or taunting remarks in reference to the job on which deceased was engaged passed between him and the defendant. Defendant then called the deceased to him, and, as deceased came up to him, defendant drew a pistol which he was carrying wrapped up in a newspaper, and shot deceased, from the effects of which he died the following day. When arrested shortly after the shooting, defendant said in substance to the policeman who made the arrest that he did not know why he did it; that this negro, referring to deceased, cursed him the day before. Defendant’s testimony tends to make out a case of self-defense. It is practically unsupported by any of the other witnesses. The jury was lenient in finding the defendant guilty only of manslaughter in the first degree.

No reason to disturb the verdict is apparent.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: ■CHAPPELL, J. CHAPPELL, J.

text:
    LUSTER SMITH v. STATE.
    No. A-7275.
    Opinion Filed Feb. 2, 1929.
    Rehearing Denied March 9, 1929.
    (274 Pac. 38.)

      F. M. Cooper, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   ■CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Kingfisher county on a charge of driving an automobile on a public highway while under the influence of intoxicating liquors and' sentenced to imprisonment for the term of one year and to pay a fine of $150 and costs of this action.

After overruling the defendant’s motion for new trial, the court rendered judgment and pronounced sentence against the defendant on the 19th day of April, 1926, and on the same day gave the defendant 60 days to prepare and serve the case-made, 10 days for the suggestion of amendments, and to be settled on 5 days’ notice.

Thereafter, on the 3d day of July, 1926, the defendant made application to the trial judge for an extension of time in which to make and serve the case-made, which application was duly served on the county attorney; the application being based on section 789, C. O. S. 1921, which provides, among other things: “And in case of accident or misfortune which could not reasonably have been avoided by the party appealing, the said court or judge, upon notice to the adverse party, may make such orders after the expiration of the time fixed in the previous order, or time allowed by statute, but this section shall in no manner be construed as affecting the statutes fixing the limit of time within which an appeal or proceeding in error may be begun in the appellate court.”

After hearing the evidence, the trial judge overruled the application for extension of time, and the defendant attempted to appeal from that order to this court. The Attorney General has filed a motion to strike the case-made.

The procedure in a case of this kind is by section 790, C. O. S. 1921: “If the court rendering final order or judgment in a case, or the judge thereof, shall refuse to allow a reasonable time to make and serve a case, or to file the same in the appellate court, the party desiring to file the appeal or proceeding in error may, upon notice to the adverse party, make application to the appellate court having jurisdiction of such an appeal or proceeding in error, or to one of the justices thereof, for such order, and said court and justices thereof shall have the same power and jurisdiction in relation to such matters as the court in which such final order and judgment was rendered, but their orders shall be filed in the trial court.”

No application was ever made to this court for an order extending time to make and serve case. This court obtained no jurisdiction by this attempted appeal to pass upon the sufficiency of the showing, for the extension of time to make and serve the case-made. Under section 790, this court has original jurisdiction to grant the relief after refusal to do so by the trial court.

In the case of Talliaferro v. State, 20 Okla. Cr. 57, 200 P. 1068, the court says: “Under the provisions of sections 5246 and 5247, Rev. Laws 1910, in case of accident or misfortune which could not have been reasonably avoided by the party appealing, the appellate court may, upon a proper showing, make an order fixing the time for making and serving a case, or filing the same in the appellate court, beyond the time allowed by statute, but not beyond the time within which an appeal may be commenced in the appellate court.”

,The record in this case discloses that the case-made was not made and served within the time fixed by the trial court. This court can only examine the transcript for errors of law in the record. This examination discloses that the only question raised by the attempted appeal is the overruling of the application for an extension of time to make and serve the case.

Since no appeal lies to' this court from such an order, the attempted appeal must be dismissed.

EDWARDS, P. J., and DAVENPORT, J., concur. ;

On Petition for Rehearing

CHAPPELL, J.

On petition for rehearing by defendant, the court will treat the case-made in his case as a transcript. In this case the only question under the record in the transcript that can be considered by the court is the sufficiency of the infoimation. it was not contended that the information was insufficient. The information properly charged the offense of driving a car while intoxicated. The petition for rehearing is denied, mandate ordered to issue.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    JAMES PALMER v. STATE.
    No. A-6410.
    Opinion Filed Feb. 2, 1929.
    (274 Pac. 38.)
    Williams & Norton, for plaintiif in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiif in error was convicted in the county court of Okmulgee county on a charge of having the unlawful possession of intoxicating liquor and his punishment fixed at a fine of $250 and confinement in the county jail for a term of 30 days.

The judgment was entered on June 15, 1926, and the case-made for appeal was not filed in this court until October 14, 1926. An appeal from a conviction for a misdemeanor must be filed in this court in 60 days unless the court makes proper orders of extension. The extreme limit in which an appeal for a misdemeanor can be filed in this court is 120 days. Section 2808, Comp. St. 1921. This appeal was not filed until after the expiration of 120 days. When an appeal is not filed in this court until the expiration of 120 days, this court acquires no jurisdiction.

The appeal is dismissed.

DAVENPORT and CHAPPELL, JJ., concur.


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    OSCAR LOGAN v. STATE.
    No. A-6375.
    Opinion Filed Feb. 2, 1929.
    (274 Pac. 39.)

      Holcombe & Lohman, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted in the district court of Osage county, on a charge of driving an automobile while under the influence of intoxicating liquor, and his punishment fixed at a fine of $1,000 and imprisonment in the penitentiary for a period of six months. Motion for new trial was filed and overruled, and exceptions saved, and defendant has appealed to this court.

The testimony on behalf of the state is brief, and in substance is as follows: That about 6 o’clock on the afternoon of November 11, 1925, in Osage county, the defendant was driving a Bui'ck car at a rate of speed of approximately about 45 miles an' hour on the public highway northeast of Pawhuska; his mother was riding with him, sitting in the front seat of the car; he drove his car into a passenger coach of a Santa Fe train, which was switching across the highway at the time; that the lights were burning in the coach; defendant’s mother was killed outright by the impact between the automobile and the train at the time of the collison; defendant was injured to some extent, and when taken from the wrecked car liquor was smelled on his breath, and he 'apparently was in a drunken state; that when they reached the hospital, shortly thereafter, he was in a state of intoxication; defendant was seen driving the car for about 300 yards before the car struck the passenger coach.

All of the testimony on behalf of the state tends to show that defendant was driving at an unusual rate of speed along the highway, and without stopping his car collided with the Santa Fe train that was switching; when he was taken from the wreck and after he reached the hospital be was intoxicated, and the odor of whisky was upon his breath.

The defendant introduced no testimony. When the information was filed, and the case was called for trial, defendant interposed a motion to dismiss on the ground that Francis McCoy, when he made the affidavit to the complaint upon which the warrant of arrest was based, did not have any knowledge of the facts, and that it was made on information and belief. Defendant also demurred to the information, which demurrer and motion to dismiss was overruled by the court, and defendant duly excepted. Defendant also filed a motion to "quash the information, which was overruled. A motion for continuance was filed by the defendant, asking that the case be continued until he could secure Francis McCoy as a witness, in order to show that, when he made the complaint upon which the warrant of arrest is based, McCoy had no knowledge of the facts. The motion for continuance was overruled and defendant duly excepted.

Twelve separate errors have been assigned by the defendant, but in his brief he argues, first, that a criminal complaint sworn to by a person who has no personal knowledge of the commission of a public offense will not sustain a warrant of arrest issued thereon.

Section 2446, C. O. S. 1921, reads, as follows: “When a complaint, verified by oath or affirmation, is laid before a magistrate, of the commission of a public offense, he must, if satisfied therefrom that the offense complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, issue a warrant of arrest.”

The defendant directs the most of his argument to the question that Francis McCoy signed the complaint in this case, and that he had no knowledge of the facts against the defendant, and therefore it was made on information and belief, and relies upon the case of Miller v. U. S., 8 Okla. 315, 57 P. 836; the second paragraph of the syllabus being as follows: “A statement that the affiant is informed and believes the facts stated in the complaint to be true-is no more than the expression of an opinion, and one which may conscientiously be made, and yet prove nothing, and be based upon no facts or knowledge.”

The defendant further directs the attention of the .court to In re Cummings, 11 Okla. 286, 66 P. 332; also De Graff v. State, 2 Okla. Cr. 519, 103 P. 538. The cases cited by the defendant correctly state the law; in each of these cases the affidavit was made on information and belief. In this case the affidavit to the complaint is positive in its terms, and was not made on information and belief, as argued by the defendant.

This affidavit was sufficient to authorize the issuance of the warrant of arrest, and was sufficient to preclude an inquiry into the question of fact of the personal knowledge of the affiant as to the facts thus positively sworn to.

In the case of Oelke v. State, 10 Okla. Cr. 49, 133 P. 1140, the court said: “Where an Information charging a misdemeanor is sworn to positively by the county attorney, it is sufficient to authorize a warrant for the arrest of the defendant, and is sufficient to authorize the county court to put the defendant upon his trial, even though the county attorney had no personal knowledge of the commission of the offense charged.”

In the case of Jess Borthick v. State, 41 Okla. Cr. 147, 271 P. 953, the court cited with approval the case of Phillips v. State, 34 Okla. Cr. 52, 244 P. 451, which held: “The purpose of a verified complaint for search warrant is to invoke the judicial power of the magistrate, and, when filed, it is the duty of the magistrate to determine judicially if there is probable cause for believing the existence of the-things stated in the affidavit. In so determining the magistrate exercises a judicial function. Whether or not he errs in his conclusion or whether or not the affidavit upon which the search warrant is obtained is true is not an issue under the trial of a case predicated upon evidence obtained by such search warrant.”

The affidavit in this case states in positive terms the material provisions of the statute necessary to justify an officer in issuing’ the warrant. We hold that the court did not err in overruling the motion of the defendant to dismiss the case.

Defendant further urges that the giving of instruction No. 5 was erroneous, as it did not define, to the jury the term “under the influence of intoxicating liquors”; the instruction complained of being as follows: “Any person who while under the influence of intoxicating liquor, or who is an habitual user of narcotic drugs shall operate or drive an automobile, tractor, or other automotive vehicle on any thoroughfare, highway, road, street or avenue, public or private, designated, intended or used by or for the general public for travel or traffic or the passage of vehicles, within the state of Oklahoma, is deemed guilty of a felony.”

Upon an examination of defendant’s brief, we find that defendant does not cite any authorities in support of this contention. The undisputed evidence is that the defendant was drunk immediately after the commission of the crime, and the failure of the court to define the term “under the influence of intoxicating liquors” is not an error; especially is this true, where no request was made by the defendant for the definition of such term. If the defendant wanted the term defined, he should have requested the court to define “under the influence of intoxicating liquors.” As disclosed by the record, there was no issue presented on the question as to whether or not the defendant was or was not intoxicated. All the evidence bearing on the subject was to the effect that he was intoxicated at the time. The court did not err in overruling the motion to quash the complaint and information to dismiss the cause and the demurrer.

There are many errors assigned, but from an examination of the record we find they have not been briefed by the defendant, and that they are without merit. The court properly instructed the jury as to the law. The defendant was accorded a fair trial, and the evidence is sufficient to sustain the conviction.

The judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    W. E. DARDEN v. STATE.
    No. A-6200.
    Opinion Filed Feb. 2, 1929.
    (273 Pac. 1027.)

      Gaylord R. Wilcox, for plaintiff in error.
    George F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the superior court of Creek county of manslaughter in the first degree, and his punishment fixed at a term of eight years in the state penitentiary.

Briefly stated, the record discloses a state of facts about as follows: Defendant was a traveling salesman, had been married, but just before the homicide his wife had procured a divorce. She resided at the town of Shamrock. He resided at Shawnee, but received his mail at Shamrock. The deceased, Glenn Starr, a married man, oil field worker, resided at the town of Shamrock. It appears that defendant was extremely jealous of Starr, which jealousy began prior to the divorce of defendant’s wife, and that the homicide grew out of this fact. On one occasion, a few days prior to the homicide, Starr and the defendant had some words in reference to defendant’s wife, and there is evidence of threats made by both the defendant and the deceased toward each other. The homicide occurred late in the afternoon; at the time defendant was standing at the entrance of a stairway near the Keller drug store, when Starr passed, and the evidence is that defendant fired the first shot, which passed entirely though the body of Starr and wounded a small girl on the sidewalk nearby. Starr then fired at defendant, and wounded him In the arm. Starr died the following day. Defendant testified, and the evidence of his divorced wife corroborated him, that a few minutes before the homicide he was told of threats made by Starr toward him. He also testified that at the time he fired Starr was reaching his hand back as if to draw a weapon, and that he then fired; that Starr then shot him in the arm, and struck him over the head with a pistol. The weight of the evidence and the credibility of the witnesses being for the jury, the evidence is sufficient to sustain the judgment.

Two principal propositions are urged for a reversal of the judgment: First, it is contended that the court committed prejudicial error in failing to fully define manslaughter in the first degree. The only crimes submitted to the jury are murder and manslaughter in the first degree. The court’s charge is rather voluminous, consisting of 24 instructions, in addition to the preliminary statement of the case. None of these charges give a clear-cut definition of murder, nor of manslaughter in the first degree. Both are defined by statute; murder by section 1733', and manslaughter in the first degree by section 1740, Comp. St. 1921, as follows:

“Homicide is manslaughter in the first degree in the following cases: First. When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor. Second. 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 sucih circumstances as constitute excusable or justifiable homicide. Third. When perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed.”

The only instruction which even squints at a definition of manslaughter in the first degree is instruction No. 21, which in part reads:

“* * * You are therefore instructed that if you find and believe from the evidence in this case beyond a reasonable doubt that the defendant W. E. Darden, did on or about the 26th of March, 1925, in the county of Creek, and state of Oklahoma, then and there being, did then and there willfully and feloniously make an assault upon the said Glenn Starr with, said revolver, and with which said revolver, the said W. E. Darden did shoot the said Glenn Starr, but without any intention of killing or inflicting serious bodily injury upon the deceased, then it will be your duty to find the defendant guilty of manslaughter in the first degree.
“On the other hand, if, after a careful consideration of all the evidence in this case, there remains in your minds a reasonable doubt as to the existence of any material fact necessary to constitute the crime of manslaughter as defined to you in these instructions, or to constitute the crime of manslaughter as herein defined, then it will be your duty to resolve all such doubt in favor of the defendant and acquit him.”

This is not sufficiently definite. It omits elements of manslaughter in the first degree as defined by section 1740, Comp. St. 1921, under each of its subdivisions. It has been uniformly held by this court that it is the duty of the trial court to instruct the jury the law of the case on trial, which instruction should include a definition of the offense sufficient to inform the jury what facts must be established by the proof in order to justify a verdict of guilty. Brock v. State, 6 Okla. Cr. 23, 115 P. 1026; Wilkerson v. State, 37 Okla. Cr. 43, 256 P. 63; Smith v. State, 40 Okla. Cr. 152, 267 P. 682.

The instruction defining the offense, or stating the facts necessary to be proven to warrant a verdict of guilty, need not be in the language of the statute; but words of similar import may be used, and it is not necessary that it should be in its entirety in one instruction.

The only other proposition argued is that the trial court erred in admitting incompetent evidence. This contention is directed to various items of evidence introduced by the state. The state was permitted to prove a statement claimed to have been made by D. A. Miner, a witness for the state, to Dr. Starr, a brother of deceased. This was apparently offered on the theory that the witness was unfriendly and had made statements different from his testimony. No predicate, however, was laid by the state for the impeaching questions. On the contrary, the record indicates that the counsel for the state was fully aware what the testimony of the witness would be before he was called to testify. It is well settled that, where a party is entrapped or deceived into placing a hostile witness on the stand, who then testifies contrary to the statements made, and to the belief of the party calling him, he may be impeached by the party calling him. On the other hand, a witness cannot be called to the stand, by a party knowing what his testimony will be, and then be impeached by showing he has made contrary statements. Evidence to prove a substantive fact cannot be introduced by a purely hearsay statement under the guise of impeaching a witness. Sturgis v. State, 2 Okla. Cr. 362, 102 P. 57; Culpepper v. State, 4 Okla. Cr. 103, 111 P. 679, 31 L. R. A. (N. S.) 1166, 140 Am. St. Rep. 668; Paris v. U. S, 5 Okla. Cr. 601, 115 P. 373; 2 Wigmore on Ev. § 904, subd. 8.

There are several other instances in the record where witnesses for the state were permitted, over the objection of defendant, to testify to matters which are purely hearsay. It is unnecessary to recite the several instances pointed out in the brief. The evidence of guilt in a case might be so overwhelming, or the undisputed facts so convfndinig, that the court could say that items of hearsay evidence were harmless; but where the issue is sharply drawn, and hearsay evidence, which tends to arouse the prejudice or to warp the judgment of the jury, is admitted, and which may have affected the verdict, it cannot be considered1 harmless. Ward v. State, 17 Okla. Cr. 713, 188 P. 894; Cook et al. v. State, 27 Okla. Cr. 215, 226 P. 595.

The case is reversed and remanded.

DAVENPORT and CHAPPELL, JJ., concur.